Occupational Safety and Health Small Employer Access to Justice Act of 2004

Mr. Speaker, I yield myself such time as I may consume.

First, I would like to comment on voluntary compliance. It has been mentioned here several times. Voluntary compliance programs are usually directed at large employers, not small. This is not where the deaths are occurring. In construction, half of all deaths occur among small firms in construction, many with fewer than 10 workers. Big corporations have understood for some time now that it is to their advantage to have a workplace that is safe, with maximum benefits and working conditions. And big corporations are seldom guilty of willful violations; it is the small employers. I must say that an attempt has been made here to make it appear that small employers have some special virtues, but small employers can be demons often.

I recall my father working in a mill where the straw boss, they called him, told the workers if they would go to the toilet, which was pretty much in the middle of the floor anyhow, a cubicle that you could see the feet and it was open at the top, if you go to the toilet and he does not smell anything, come on out.

I can recall working at a restaurant when I was in college where the employer, the owner of this small business, felt he had a right to pat any woman on the behind regularly, and they were too afraid to complain because they wanted to keep their jobs.

You might say that those were extreme conditions, that is all over; that happened when you were in college many years ago. But in New York we have sweatshops which are as bad as any sweatshops the city has ever known in the 1930s, the 1920s or any other time. It is just that the people in the sweatshops now happen to be Asians mostly, Asian workers who are being exploited.

There is no great virtue in small businesses automatically. Yes, the majority comply, but there are too many who still do not comply, too many who, as I said before, are interested only in squeezing the maximum profits from the situation; and their biggest cost is the labor cost, labor cost in terms of wages, labor cost in terms of conditions that must be established by law for workers.

We refuse to discuss the minimum wage on this floor. We refuse to discuss it in the context of a bill to increase the minimum wage. But today if we are going to talk about workers and worker safety, I think we ought to point out that it is the workers who are making the least amount of money whose safety is jeopardized most. They are the vulnerable ones in conditions that nobody else wants to work in, immigrant workers who take the lowest pay and working conditions where no one else will work.

This is the second quarter of a four-quarter marathon, as I said before. I have heard it called the More Injuries and More Death Marathon Act. It is a covert approach to what the majority Republicans tried when they first took power in 1995. This is covert. This is guerilla warfare, one might say, undermining OSHA from the back, undermining OSHA with sweet words.

Back on June 14, 1995, we had the first taste of what the majority Republicans really wanted to do about OSHA. The gentleman from North Carolina (Mr. Ballenger) introduced H.R. 1834, and that was a massive overhaul of OSHA to weaken the law and favor law-breaking employers. If you were to go back and retrieve that bill, you could see that most of it was put there in one bill, and it was a frontal assault. It had the same objectives that today's assault has.

There have been 14 of these significant bills introduced since the 104th Congress, I think half of which have been introduced by the gentleman from North Carolina (Mr. Ballenger) which are significant in terms of looking at the record of how OSHA has been under attack. Since this House went under the leadership of the Republicans, OSHA has been the target, it has been an obsession, and none of these bills are in favor of increasing any measures to protect workers.

We cannot review and view these bills today in the context of just one bill at a time or even the four bills. The four bills have to be reviewed in the context of the overall policy of the Republican majority toward working families, the overall assault against working families.

We have to have this in context. We have to look at the figure of the 6,000 Americans per year. That figure has been there for some time, averaging about 6,000 per year who die every year on the job.

The little display up front is an example of a centerpiece for a quilt we want to make as a memorial to these workers. We do not want either party to forget what is happening to working

families in this country. In many respects, the failure to increase the minimum wage is one of them, but certainly with respect to health and safety, we must do more to make it known and to put it on the front burner in the minds of Americans as evidence of what is happening in the workplace.

This is not unrelated to other developments like outsourcing, a major development which goes after workers at higher levels, technicians, computer people, scientists, engineers. Their salaries and their working conditions are such that they are found to be offensive and not producing ample profits, so their jobs are going to be taken away completely and contracted out to other nations.

There are a large number of businesses that cannot be contracted out and most of them are small businesses. Construction is one. We can never take construction overseas; that has to happen here. The construction industry, in particular, needs the protection of people who want to weaken OSHA. The construction industry, in particular, is a culprit in employing and exploiting workers at the very bottom.

We must keep this package in context. We must understand that the covert warfare taking place here, what I call the poisoning of OSHA, the slow draining of power from OSHA, is accelerated by these seemingly harmless four bills. The Labor Secretary in this administration is openly hostile to labor and to working families. We have a situation where traditionally the Department of Labor has always been considered the advocate for working families and for workers, but this particular Department of Labor, this Secretary, is just the opposite and this administration has no place for labor to have their grievances aired. So we bring them here today at this time and take advantage of the fact that there is at least time to discuss conditions under which people work.

The policy of denigration, intimidation and oppression of the workforce is a policy which yields high productivity. That high productivity has already been achieved, but they want to go beyond that and get higher levels of exploitation and squeeze more from workers to increase the profits. As I said before, all small business owners are not model Americans. They do not seek to protect and take care of their workers in the best possible way.

We are going to have a monument. This is going to be part of an overall quilt which gives you the number of workers per State, gives you the number each year, since 1993 to the present. Like the Vietnam Wall memorial, it dramatically brings home in an individual way the fact that life is sacred. The lives of workers are as sacred as the lives of anyone else.

I said before, we are losing more workers per day than we are losing on the battlefields of Iraq. I do not want the Iraq battlefield casualties to increase. We would like the casualties in both places to decrease. But the life of a worker who is killed in a situation which has willful violations and the death is totally unnecessary, that life must be given more concern by both parties here in this House.

Workers and their families are under attack. We must come to their defense. One way to defend them is to recognize these four bills for what they are worth. They are the very destructive poisoning of the effectiveness of OSHA.

Mr. Speaker, I submit for printing in the Congressional Record the opinions and the statements by four groups: The AFL-CIO, the UAW, the Teamsters and the National COSH Network. These groups oppose this bill. I submit for the Record their statements in opposition.

American Federation of Labor and Congress of Industrial

Organizations,

Washington, DC, May 14, 2004.

Dear Representative: I am writing to express the strong

opposition of the AFL-CIO to H.R. 2728, H.R. 2729, H.R. 2730

and H.R. 2731, four bills that would erode worker protections

under the Occupational Safety and Health Act. These bills,

which are scheduled for a floor vote the week of May 17,

2004, would change established law and procedures to benefit

employers and stifle OSHA enforcement. They would do nothing

to enhance workers' safety and health protection, while

weakening the OSH Act.

H.R. 2731, Occupational Safety and Health Small Employer

Access to Justice Act--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 brought by the

small employer against OSHA, regardless of whether the action

was substantially justified.

Under the Equal Access to Justice Act, small businesses are

already able to recover litigation costs where the government

position was not substantially justified. There is no reason

to expand these provisions and create new and broader rules

for purposes of the OSH Act. The bill will drain resources

away from an agency that has perpetually struggled to do its

job with the limited resources available to it. If enacted

into law, H.R. 2731 would have a chilling effect on both OSHA

enforcement and OSHA standard setting, because attorneys'

fees would be available to prevailing employers in both types

of actions. OSHA would be hesitant to cite small employers

for violations of the OSH Act unless there is absolute

certainty that the enforcement action will be upheld in its

entirety. No rational public policy would be furthered by

discouraging OSHA from issuing citations that are

substantially justified, but as to which the government

ultimately is unable to carry its burden of proof of every

issue. Rather, the inevitable result of such a rule, which

would penalize the government every time it loses, would be

to chill the issuance of meritorious citations in close cases

on behalf of employees exposed to unsafe working conditions.

Similarly, unless OSHA is certain that a standard will not be

challenged (which they are routinely for any number of

reasons), it would be very reluctant to development and issue

rules any hazard no matter how grave the threat of the hazard

to workers. This bill would further weaken OSHA enforcement

efforts and standard setting to the detriment of American

workers.

Establishments with fewer than 100 employees make up 97.7

percent of all private sector establishments. These

businesses have a higher rate of fatal occupational injury

than do establishments with 100 or more workers. Hampering

OSHA's enforcement ability in these small establishments

would be devastating to workers, resulting in even higher

rates of worker fatalities, injury and illness.

Also significant is the fact that under H.R. 2731,

employers will be able to recover partial attorneys fees if

they partially prevail in an OSHA proceeding. So, for

example, the notorious 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,

would be able to recover attorneys fees under this bill,

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).

OSHA needs more, not fewer, resources available to deal

with employers like Eric Ho and to enforce the OSH Act's

protections. H.R. 2731 should be rejected.

H.R. 2730. Occupational Safety and Health Independent

Review of OSHA Citations Act--This bill would work a radical

change in the implementation and enforcement of the OSH Act,

and would undermine the Secretary of Labor's authority to

interpret and enforce the law. The bill would overturn a 1991

Supreme Court decision and say that deference should be given

to the OSHA Review Commission, and not the Secretary of

Labor, in interpreting OSHA standards. The AFL-CIO vigorously

opposes this bill and urges its defeat.

In Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144

(1991), the Supreme Court made clear that the Secretary of

Labor, and not the Review Commission, should be given

deference when interpreting OSHA standards and regulations.

In the Court's view, the Secretary of Labor should receive

deference because Congress, when enacting the OSH Act,

designated the Secretary as the policymaking official, and

gave the Secretary the authority and responsibility to

implement and enforce the law. Thus, because the Secretary of

Labor is the person who adopts standards and brings

enforcement actions against employers, she has a much broader

and deeper understanding of OSHA's rules as compared to the

Review Commission, which sees only a small fraction of OSHA's

enforcement cases.

Policymaking, and interpretation of OSHA policies, should

stay with the Secretary. The Commission should not be able to

undo by fiat the Secretary's reasonable interpretations of

her rules. H.R. 2730 should be rejected.

H.R. 2729. Occupational Safety and Health Review Commission

Efficiency Act--H.R. 2729 expands the number of members on

the OSHA Review Commission from three to five, and mandates

that all members have legal training. Another provision,

removed during the Committee markup on May 5, 2004,

authorized the Chairman of the Commission to delegate to any

panel of three or more members any or all powers of the

Commission and allowed two members to constitute a quorum on

such sub-panels.

The Review Commission has operated with three Commissioners

since it was first formed in 1970. There is no need to expand

the Commission beyond its current membership, and no need to

exclude individuals with relevant training, but not legal

training, from eligibility for these positions. Moreover, it

is no coincidence that Republican members are pushing to

expand the number

of seats on the Commission at a time when a Republican

president would fill the seats.

Proponents say the bill is needed to address the problem of

the Commission at times lacking a quorum to do business. But

with the removal of the provision on sub-panels during the

Committee markup, it is difficult to see how H.R. 2729 would

solve the quorum problem. Three Commissioners would still be

required to have a working quorum. There is no reason to

think that the Commission will be able to retain three active

Commissioners any better than it has been able to retain two.

H.R. 2729 is a solution in search of a problem. It should

be defeated.

H.R. 2728, Occupational Safety and Health Small Business

Day in Court Act--This bill would excuse employers from the

fifteen-day deadline for contesting OSHA citations and

``failure to abate'' notices if they can show ``mistake,

inadvertence, surprise, or excusable neglect'' as the reason.

The bill's practical effect would be to make numerous excuses

into legal reasons for missing the fifteen-day deadline by

which employers currently must respond to OSHA citations.

This action will only encourage more litigation. The idea of

the fifteen-day requirement is to give all parties a

reasonable timeframe in which to take action, and to ensure

that the case is moved along as quickly as possible so the

cited hazards will be corrected in as timely a manner as

possible.

It is also important to note that the bill excuses

employers from missing their 15-day deadline but does not

extent these same provisions to employees or their

representatives who challenge the period for abatement in a

citation. The one-sided nature of this legislation shows that

it is about benefiting employers, not protecting employees.

Proponents of the bill have pointed to one court case as

justification for this legislation. In fact, the Commission

has a longstanding practice of reviewing any missed deadlines

on a case-by-case basis. H.R. 2728 is another solution in

search of a problem, and it should be defeated.

As demonstrated above, these bills undermine the intent of

the Congress when it enacted the OSHAct more than 30 years

ago. Generally speaking, these policies and procedures have

been serving workers well for over 30 years. American workers

deserve a safe and healthy workplace and the full protection

the OSHAct can offer. These bills would surely diminish the

protections provided to workers by the OSHAct. For these

reasons, the AFL-CIO opposes these four bills, and we

strongly urge you to vote against each of them.

Sincerely,

William Samuel,

Director,

Department of Legislation.

Mr. Speaker, I ask unanimous consent that the gentleman from New Jersey (Mr. Payne), my colleague on the Workforce Protections Subcommittee, be allowed to control the balance of my time.

Mr. Speaker, I rise to close for the opposition on H.R. 2729.

As I stated at the outset, neither H.R. 2729 nor any other of these four bills before us addresses the important health and safety concerns of American working men and women. In essence, H.R. 2729 gives us the worst of both worlds, a bigger government bureaucracy designed to accomplish less on behalf of the American worker. Moreover, this bill would mandate legal training as a qualification for appointment to the commission. This diminishes what ought to be a primary qualification as a commissioner and that is expertise in the field of occupational safety and health.

Having stated these clear reasons for opposition to this bill, which I urge my colleagues to follow, I would like to turn my attention once more to the urgent concern about the safety of American workers. That concern is over the protection of workers' lives on the job. At present, OSHA does little more than slap the wrists of employers that are egregious safety offenders. As the New York Times noted in its compelling series on worker deaths, OSHA has a 20-year track record of failing to seek criminal prosecution in a staggering 93 percent of cases they investigated where willful and flagrant safety violations by employers killed workers.

And after you institute this proposal for H.R. 2729, it is just one more little reason why they would have less vigor in prosecuting anybody.

Congress has an important role to play in holding both OSHA and unscrupulous employers accountable. One problem is that under the current statute, OSHA can only issue a misdemeanor penalty for an employer who has willfully caused the death of a worker. A misdemeanor has no deterrent value whatsoever. If you harass a wild burro on Federal lands, you face a stiffer penalty than if you kill an American worker. What signal does this send to a small number of unscrupulous employers who actually build up a history of willfully causing worker deaths? Are we saying to these wrongdoers, do not worry about protecting the lives of your workers because Congress cares more about wild burros than about the men and women in your employ? Pestering a wild burro in a national park can send you to prison for an entire year, but killing a worker only lands you there for 6 months.

More importantly, what signal does that send to grieving family members who are left behind? You cannot receive any justice because Congress does not have a fundamental respect for the lives of your loved ones.

Along with Senator Jon Corzine, I have introduced a bill to make killing a worker a felony offense. I tried to get this bill included in one of these four bills because it is germane, in my opinion; but it was ruled out of order. Rather than a radical departure from current law, this bill is just a moderate adjustment that is long overdue. H.R. 4270 and S. 1272 correct a glaring oversight in Federal policy, and I will describe it in more detail later on.

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 645 and ask for its immediate consideration.

Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to my friend, the gentleman from Florida (Mr. Hastings), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

Mr. Speaker, the resolution before us is a rule for consideration of a package of bills, H.R. 2728, H.R. 2729, H.R. 2730, H.R. 2731 and H.R. 2432, which are all being brought to the floor today by the House Republican leadership, that will help to cut the cost of burdensome regulations for American small businesses and help create new jobs in America.

H. Res. 645 provides for the separate consideration of each of these five measures. Each bill covered under this rule will have its own debate time and the opportunity to be voted on by this body.

Finally, the rule also provides, at the close of consideration of these measures, the Clerk of the House will be directed to combine the text of each of these bills that passes the House under this rule as one engrossed bill and send it to the other body.

Mr. Speaker, we are here today to consider a rule for a number of common-sense bills that will eliminate unnecessary paperwork and bring some much-needed flexibility to the regulatory process for American small business. This legislation will also improve worker safety by making it easier for employers to work voluntarily and proactively with OSHA to ensure safe and secure workplaces.

While this may seem like a complicated rule, its effect is quite simple: It will help to cut down on wasteful costs that many small businesses face as a result of burdensome, one-size-fits-all government regulations.

The bills brought up for consideration under this rule will allow small businesses to focus more of their time and energy on competing in the marketplace, providing their customers with better goods and services and creating new jobs all across America, rather than spending their time filling out forms or arguing with some distant, nameless, faceless bureaucrat.

One of the Republican Party's top priorities is to create an environment that empowers small businesses and their employees to succeed, which has been proved by the House's agenda over the last few weeks. Last week, the House took up and overwhelmingly passed legislation to allow low- and middle-income Americans to keep more of what they earn by permanently extending the 10 percent tax bracket created by President Bush's 2001 tax relief plan.

The House also took up the opportunity to pass legislation that improves upon and strengthens Flexible Spending Accounts, addresses the skyrocketing cost of medical liability insurance and allows small businesses to join together to provide their employees with health insurance through Association Health Plans.

This week, the House will be considering yet another tax relief bill on behalf of working families and will expand and make permanent the child tax credit. And we will also be considering these five bills to make it easier for our Nation's small businesses to create jobs that will help sustain our economy's growth.

H.R. 2728, the Occupational Safety and Health Small Business Day in Court Act, amends the Occupational Safety and Health Act of 1970 to provide flexibility to employers filling out responses to OSHA citations. Currently, the law sets a strict and arbitrary deadline of 15 days for businesses to respond to an OSHA citation, despite the fact that since the 1980s, a Federal rule of procedure has granted employers relief in cases where an employer filed a late notice of contest because of ``mistake, inadvertence, surprise or excusable neglect.'' H.R. 2728 would simply codify this common-sense practice in law and give OSHA some direction in handling cases where a business misses its 15-day window.

H.R. 2729, the Occupational Safety and Health Review Commission Efficiency Act, would create greater efficiency at the Occupational Safety and Health Review Commission by adding two additional members to this board so that it may complete its work in a more timely fashion on behalf of employers and employees all across the United States.

Under current law, the membership of the Commission is set at three appointed members. Two members are required to constitute a quorum, and the Commission can only take action on an affirmative vote of two members, regardless of whether these seats are vacant or filled.

For over two-thirds of its existence, the Commission has been paralyzed by frequent vacancies that have resulted in several critical and well-documented inefficiencies, rendering the entire regulatory scheme devised by Congress for resolving OSHA disputes unworkable.

By creating two new seats on the Commission, Congress can protect against the chance that an extended vacancy on the Commission will prevent this body from resolving disputes in a timely fashion.

H.R. 2730, the Occupational Safety and Health Independent Review of OSHA Citations Act, will provide for the fair and independent review of citations issued by OSHA. Legislative history and practice have made it clear that while OSHA is responsible for rule-making, enforcement and adjudication of issues pertinent to workplace safety, the Occupational Safety and Health Review Commission is intended to provide an independent review of OSHA's functions and act as a check on any prosecutorial excess.

This bill would simply restore responsible checks and balances to the current system by making it clear that the Commission's legal interpretations are given the proper judicial deference.

H.R. 2731, the Occupational Safety and Health Small Employer Access to Justice Act, provides for the payment of attorney's fees and costs to very small employers when they prevail in legislation prompted by the issuance of citations by OSHA.

The reason for this legislation is simple: The government should not be able to intimidate small businesses into blindly following their mandates simply because the business thinks it cannot afford to fight in a case where it might otherwise prevail.

This bill will put American small businesses on a more level playing field with large and powerful government bureaucracies and give them the courage to speak up for themselves when they are right by removing the financial penalties that currently exist for defending themselves.

Finally, H.R. 2432, the Paperwork and Regulatory Improvement Act, reduces Federal regulatory paperwork and red tape by requiring OMB to devote more effort to identifying ways to simplify Federal laws. This bill would also make permanent GAO's authorization to analyze major rules proposed by Federal agencies and require OMB to integrate its regulatory accounting reports with its annual budget report, so that lawmakers can compare the on-budget and off-budget costs associated with each agency requiring paperwork by the public.

Like all the other bills being considered on this rule today, it would help create jobs and allow America's business men and women to spend less of their own time on resources, on complicated regulatory and taxes paperwork that hurts the economy, instead of running their own businesses.

Mr. Speaker, I am proud of this legislation that Congress has passed and will continue to pass to promote the Republican competitiveness agenda. I think it is important that we come to the floor today with a full discussion on legislation that will give Americans more time to spend running their businesses or with their families or however they choose to spend it.

I think it is important to remember that every single time that we pass one-size-fits-all legislation giving a great deal of authority to the Washington-based bureaucracies, our small businesses bear the brunt of this inefficiency.

OMB recently report to Congress that the annual cost of major Federal regulations issued between 1992 and

2002 are estimated to cost between $38 billion and $44 billion. This means that Americans spend about $1.50 in compliance cost for every one dollar in tax cost devoted to regulation. Moreover, it means that every dollar of direct budget expenditure devoted to regulatory activity, the private sector spends $45 dollars in compliance. This overregulation of businesses puts us at a competitive disadvantage with the rest of the world and places an unnecessary limit on our economy.

Finally, Mr. Speaker, the code of Federal regulations extends 19 feet, and from 1991 to 2000 the number of pages in the CFR increased by 28.1 percent. I am glad Congress is looking at ways to pare back this overwhelming bureaucracy, and I urge all of my colleagues to support this rule for these five bills to keep American businesses competitive in the global marketplace and to keep American jobs here at home. I urge all of my colleagues to support this rule and the underlying bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I appreciate the gentleman talking about the true colors that the Republican Party presents not only today but every single day that we are on this floor of the House of Representatives, because our special interest is our taxpayers and the working men and women of this country who keep it going and will continue to work for the special interests of the Republican Party to ensure that America has not only a sound economy but opportunities to where people can live the American dream.

Mr. Speaker, I yield 4 minutes to the gentleman from Ohio (Mr. Boehner), the gentleman that leads our party in this effort, the gentleman who is the chairman of the Committee on Education and the Workforce.

Mr. Speaker, I yield 5 minutes to the gentleman from Virginia Beach, Virginia (Mr. Schrock).

Mr. Speaker, I yield such time as he may consume to the gentleman from Georgia (Mr. Norwood).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, we began this debate today by talking about doing the things the Republican Party has as an idea and a vision, about making businesses more efficient and effective and working closer on the things that will encourage not only us to be more productive but to employ more people. The gentleman from Florida earlier asked a very simple question: Who would possibly support this bill? Who are they? Well, I provided the gentleman a list of some 38.

I yield to the gentleman from Florida.

Mr. Speaker, I thank the gentleman for his clarification and accept that.

I would like to run through very quickly the organizations that do support this commonsense OSHA reform, and I am just going to run through a few:

The National Center For Assisted Living, National Council on Chain Restaurants, National Federation of Independent Businesses, United States Chamber, National Restaurant Association, National Retail Federation, National Soft Drink Association.

And, Mr. Speaker, I will submit this list at this point for the Record.

Committee on Education and the Workforce, House of

Representatives,

May 18, 2004.

Organizations Supporting Common Sense OSHA Reforms

Dear Colleague: The House today will consider four common

sense OSHA reform measures (H.R. 2728, H.R. 2729, H.R. 2730,

and H.R. 2731) to ensure OSHA enforcement efforts are fair

for small businesses that make good faith efforts to comply

with all health and safety laws. These reforms will improve

worker safety by making it easier for employers to work

voluntarily and proactively with OSHA to ensure safe and

secure workplaces. Following are a list of organizations

supporting these reforms:

Air Conditioning Contractors of America

American Bakers Association

American Hotel & Lodging Association

American Farm Bureau Federation

American Furniture Manufacturers

Associated Builders & Contractors

Associated General Contractors of America

American Health Care Association

American Trucking Associations

Food Marketing Institute

Independent Electrical Contractors

International Foodservice Distributors Association

IPC--The Association Connecting Electronics Industries

Management Advisers, LLC

Mason Contractors Association

National Association of Home Builders

National Association of Manufacturers

National Beer Wholesalers Association

National Center for Assisted Living

National Council of Aagricultural Employers

National Council of Chain Restaurants

National Electrical Contractors Association

National Federation of Independent Business

National Funeral Directors Association

National Oilseed Processors Association

National Ready Mixed Concrete Association

National Restaurant Association

National Retail Federation

National Roofing Contractors Association

National Small Business Association

National Soft Drink Association

Printing Industries of America Inc.

Retail Industry Leaders Association

Society of American Florists

Society for Human Resource Management

The American Coke and Coal Chemicals Institute

The Brick Industry Association

U.S. Chamber of Commerce

Developing better cooperation between OSHA and employers

will improve workplace safety, enhance business

competitiveness, and foster more job creation to spur the

economy. We encourage you to help improve workplace safety

and enhance small business competitiveness by voting YES on

these important OSHA reform measures. For more information,

please contact the Education & the Workforce Committee at x5-

4527.

Sincerely,

John Boehner (R-OH),

Chairman, Education & the Workforce Committee.

Charlie Norwood (R-GA),

Chairman, Workforce Protections Subcommittee.

Mr. Speaker, I would say to my colleagues who are listening to this debate, who want to do the right thing for small businesses, that it is always interesting to me that as we enter debates on the floor of the House of Representatives, and one of the biggest debates we have had has been about manufacturing, yet almost every single time as the Republican Party stands up for those organizations that are engaged in manufacturing, about jobs in this country, we vote for those bills and our colleagues on the other side vote against them. Yet all we hear about is loss of jobs.

I would like to say that today this vote is about small business and the ability for small business to compete effectively, efficiently, and to give them more fair footing. I support this rule and I support this underlying legislation.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

The previous question was ordered.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in strong opposition to H.R. 2731. This bill is the most

alarming of the four before us today. By mandating that OSHA pay the attorney fees of any employer with a total net value of under $7 million and no more than 100 workers if they prevail upon appeal, H.R. 2731 would drastically undermine the enforcement of OSHA's mission.

As I stressed in my opening statement, more than 90 percent of all private firms in the U.S. would qualify for attorney fees upon successfully prevailing in an appeal. What could be more universal than that? H.R. 2731 would have an incredibly chilling effect on implementation of the act.

What would this bill mean for American workers? It would mean that unscrupulous employers could risk workers lives with impunity. Focusing on the issue of worker protection, again, I would like to relate some very personal testimony delivered at a forum I held on May 12 on worker deaths, and some of the photos of the people who testified are in front of us.

Patrick J. Walters, whose photo is on the top row, was 22 years old, a plumber's apprentice who was literally buried alive in a trench collapse in June 2002. Patrick had been sent down into a 10-foot deep, rain soaked trench without any training or safety equipment. Moeves Plumbing, a Cincinnati-based employer, had been repeatedly cited already by OSHA over the years for failure to follow basic safety standards for trench work. Although cited and fined for trench safety lapses in 1983, 1984, 1985, Moeves Plumbing took no remedial steps.

Clint Daley, another Moeves employee had been buried in 1989 in circumstances identical to Patrick's. In Daley's case, OSHA agreed to a settlement based on a promise by Moeves to take required safety action, an example of that voluntary compliance business. Two weeks before his death, an OSHA inspector found Patrick and another Moeves employee working in an unstable, unsafe trench that was 15 feet steep. Again, OSHA warnings went unheeded by Moeves and this caused certain, but tragic, results.

After Patrick's death, an attorney for Moeves Plumbing negotiated down the citation from a willful violation to an unclassified. OSHA also reduced the fine down to $30,000 to be paid over 4 years.

At the May 12 forum, Patrick's mother, Michelle Marts, wondered aloud, ``What is it going to take to stop Moeves Plumbing from sending another boy like our son to his death? Patrick did not have to die this way. This absolutely could and should have been prevented. We do not want this to happen to any other family.''

Joey Israel was a 22-year-old laborer who fell eight stories to his death from Philadelphia's Victory Building on December 31, 2003. Employed by HydroProof Systems, he had been promoted from entry-level employee to laborer only 2 weeks prior to his death. All that is known for certain is that before careening to his death, Joey had been told to pull up a 23\1/2\ pound electrical cord hanging from the window. After repeated phone calls to OSHA to ascertain the status report on Joey's case, OSHA responded by stating that HydroProof had not violated any safety rules.

Joey's twin sister, Jaime, insisted upon a personal meeting with the OSHA investigator. She was told that not one of the eight men who were on the job the day her brother was killed had been questioned by OSHA nor had the employer been questioned about the incident. When Jaime questioned how her brother could have been sent alone some 25 feet up in the air on this job, without any prior training or interview, she was told, ``That's the beauty of America.''

Jaime responded at the May 12 forum with the following quote: ``What an awful thing to be told to a mother who just lost her son and a sister who just lost her brother. I believe this is the downfall of America, where, daily, employers risk the lives of untrained men and women who are doing what they have to do to support their families, to make a quick buck and, in a sense, kill for profit. My brother lost his life for a lousy $60 a day, is that what the lives of our loved ones are worth to their employers?''

Scott Shaw was a 38-year-old husband and father of two young sons who was killed on September 7, 2002. Scott died when he fell into the Schuylkill River, moving from the Hopper Barge to the Work Barge. OSHA investigated and found that Scott's company had committed six serious violations. One of these violations focused on the fact that one barge was 8 feet higher than the other. Also, workers had to climb on rubber tires while jumping from barge to barge. However, OSHA combined these violations into one citation with six items. OSHA's total fine for these violations was only $4,950.

His wife, Holly, testified that ``Scott didn't have a life jacket on. He wasn't required by his company to wear one. There were no life preservers on the barge. Scott's death was needless. The company Scott was working for neglected to follow safety regulations.

``As a teacher and as a parent, I know that it is important that a child understand there are consequences to their actions, and they must accept responsibility for what they have done. Adults must face their responsibility, and must be held accountable for their actions. Please don't let another family suffer as we have. The more that companies are actually punished, the more they realize they must practice workplace safety, and must protect their workers.''

I urge my colleagues on both sides of the aisle to understand the seriousness of these discussions today.

This is the final quarter of the marathon four bills today. I hope that the fact that they have been packaged together has not caused anybody not to listen. I hope that they understand that we are talking about life-and-death matters.

I urge my colleagues to oppose the needless deaths of Americans by opposing H.R. 2731.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentlewoman from California (Ms. Lofgren).

Mr. Speaker, I yield 4 minutes to the gentlewoman from California (Ms. Woolsey).

Mr. Speaker, may I inquire as to how much time is left.

Mr. Speaker, I yield 5 minutes to the gentleman from New Jersey (Mr. Payne).

(Mr. PAYNE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 3 minutes to the gentlewoman from New York (Mrs. McCarthy).

Mr. Speaker, I yield 4 minutes to the gentleman from New Jersey (Mr. Andrews).

(Mr. ANDREWS asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield such time as he may consume to the gentleman from Ohio (Mr. Kucinich), the distinguish candidate for President.

Mr. Speaker, I yield myself such time as I may consume.

I want to thank the members of the minority on the committee for their work on this bill. I want to thank the majority for giving us an opportunity to talk about the very real problems that are faced by workers in the workplace.

Mr. Speaker, I submit for the Record an item titled Summary of the AFL-CIO Death on the Job Report, and the second item for the record, Profile of Workplace Safety and Health in the United States.

Summary of the AFL-CIO Death on the Job Report

The report is a national and state-by-state profile of

worker safety and health in the United States. A combination

of too few OSHA inspectors and low penalties makes the threat

of an OSHA inspection hollow for too many employers. Millions

of workers are still left with no OSHA coverage.

Here are some of the ``highlights'' of the report:

15 workers were fatally injured and more than 12,800

workers were injured or made ill each day during 2002. These

statistics do not include deaths from occupational diseases,

which claim the lives of an estimated 50,000 to 60,000

workers each year.

A 62 percent increase in the number of trench fatalities,

from 33 in 2002 to 53 in 2003.

Fatal injuries among Hispanic or Latino workers decreased

about 6 percent, although the 840 fatalities recorded for

Hispanic workers is the second-highest annual total for the

population. States that saw an increase in the number of

Hispanic worker fatalities in 2002 include Alabama, Arkansas,

Florida, Idaho, Indiana, Maine, Maryland, Nebraska, New

Jersey, North Carolina, Pennsylvania, Tennessee, Virginia,

Washington and Wyoming.

The number of fatal work injuries among foreign-born

Hispanic workers increased to 577 in 2002 from 527 in 2001.

Musculoskeletal Disorders continue to account for more than

one-third of all injuries and illnesses involving days away

from work and remain the biggest category of injury and

illness. The occupations that reported the highest number of

MSDs involving days away from work in 2002 were nursing aides

and orderlies (44,421); truck drivers (36,814); and laborers,

nonconstruction (24,862).

As documented in a December 2003 New York Times series,

prosecutions of recklessly negligent employers are extremely

rare. Of the 170,000 workplace deaths since 1982, only 16

convictions involving jail time have resulted--although 1,242

cases involving work deaths were determined by OSHA to

involve ``willful'' violations by employers (violations in

which the employer knew that workers' lives were at risk).

Penalties for significant violations of the law remain low.

In fiscal year 2003, serious violations of the OSH Act

carried an average penalty of only $871 ($856 for federal

OSHA, $885 for state OSHA plans).

2,240 federal and state OSHA inspectors responsible for

enforcing the law at 8.1 million workplaces. At its current

staffing and inspection levels, it would take federal OSHA

106 years to inspect each workplace under its jurisdiction

just once.

Between FY 1999 and FY 2003 the number of employees who

work in workplaces inspected by federal OSHA inspections

decreased by nearly 12%. The average number of hours spent

per inspection also decreased between FY 1999 and FY 2003,

from 22 to 18.8 hours per safety inspection and from 40 to

34.7 hours per health inspection. The number of citations for

willful violations decreased from 607 in FY 1999 to 391 in FY

2003. The average penalty per violation and per willful

violation increased in FY 2003 from the FY 2002

level, while the average penalty per serious violation

decreased to its lowest level since 1999.

After three and a half years under the Bush administration,

rulemaking at OSHA and MSHA has virtually ground to a halt.

In December 2003, the administration published its latest

semiannual regulatory agenda, which sets forth its regulatory

priorities and plans for the coming year. Having already

withdrawn 22 pending OSHA regulatory actions from its

regulatory agenda, in its May 2003 regulatory agenda the Bush

administration withdrew the glycol ethers standard and the

tuberculosis standard, leaving few major initiatives on the

regulatory schedule.

OSHA still has taken no action on the Employer Payment for

Personal Protective Equipment standard, which has been

through the rulemaking process and is ready for final action.

The only major regulations still on the regulatory agenda

are for silica, beryllium and hearing conservation for

construction workers. But there is no commitment for OSHA to

propose these rules. This will be the only administration in

history not to issue a major safety and health regulation

during its four years in office.

17 MSHA standards to improve safety and health for miners

have been withdrawn, including the Air Quality, Chemical

Substances and Respiratory standard.

Adjusting for inflation, the FY 2005 proposed OSHA budget

represents a $6.5 million cut over FY 2004 appropriations.

The FY 2005 OSHA budget proposes increasing programs for

voluntary compliance with employer assistance while cutting

training and outreach programs for workers and freezing

standard-setting and enforcement programs. At OSHA, the

president proposes to cut worker safety training programs by

65 percent and to shift these funds to employer assistance

programs.

Since we have had a running commentary here about staying on the point, I would like to comment directly on H.R. 2731 by quoting from the Brotherhood of Teamsters objections:

``Finally, we oppose H.R. 2731, the Occupational Safety and Health Small Employer Access to Justice Act, which would require that OSHA, the taxpayer, pay the legal costs when it loses a case against a small business that prevails in administrative or judicial proceedings, regardless of whether the government's position was substantially justified. We view this as another effort to impede OSHA's and the Department's efforts to enforce the law and provide an avenue for workers to seek redress.

``We see no justification for such an arbitrary departure from the current practice of each party paying for its own litigation costs for only one class of public prosecutions. We know of no other agency, charged by statute to enforce the law, which is impeded from fulfilling its responsibility with respect to a meritorious complaint because it cannot guarantee the outcome.''

If OSHA is forced to guarantee the outcome, it ties OSHA's hands and will rob workers of protections by discouraging OSHA from executing its required responsibilities. Like all of the other items in this marathon package, which I call the More Injuries and More Death Marathon, it stacks the deck against the workers and in favor of the employers.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I yield such time as he may consume to the gentleman from California (Mr. George Miller), the ranking member of the Committee on Education and the Workforce, for an opening statement.

Mr. Speaker, I yield 3 minutes to the gentleman from Michigan (Mr. Kildee).

Mr. Speaker, may I inquire as to the amount of time left?

Mr. Speaker, I yield myself as much time as I may consume.

Mr. Speaker, I rise in strong opposition to this particular bill, H.R. 2728, and the other three bills to be considered in succession, H.R. 2729, H.R. 2730 and H.R. 2731. As I said earlier in the debate on the rule, this package I would label as a ``more injuries and more deaths package.'' This package I would label as ``a spoon feeding of poison'' to OSHA.

If we compare OSHA to a giant elephant, as has just been boasted by a couple of Members, they knock the elephant to its knees immediately by repealing the ergonomic standards, and now they want to slowly kill the elephant with spoonsful of poison.

Deliberately, it is made to appear these are trivial bills, common- sense bills, they have no real value; but why are they on the floor? I think they are significant only if we take this within the context of what the majority party has been trying to do with OSHA since it took control of the House, if we take it in the context of how the protection of owners and businessmen is the obsession of the majority party. We never get any bills from them which seek to protect workers.

There are quite a number, 14, of significant bills that have been offered since the 104th Congress, starting with the gentleman that just spoke before. The gentleman from North Carolina (Mr. Ballenger) has offered more than anyone else, and each one of those bills seeks to, in some way, weaken OSHA and to favor law-breaking employers.

These bills will do nothing to strengthen the occupational safety and health standards for American workers. Rather, they will do quite the reverse, by undermining, sometimes suddenly and other times blatantly, the overall effectiveness of the Occupational Safety and Health Administration.

I would like to remind my colleagues on the other side of the aisle that Congress passed the Occupational Safety and Health Act in 1970 to assure ``every working man and woman in the United States safe and healthful work conditions.'' I believe that bears repeating.

OSHA's founding and fundamental purpose, as spelled out in the statute, is to ensure that each and every individual working in the United States carries out his or her work in safe and healthy circumstances.

The bill was not written to overburden business. It has never overburdened business. Every attempt has been made to bend over backwards to limit the burden on business and no attempt is made to protect workers.

This is the yardstick by which we must measure the likely outcomes of each of the bills before us today. Let us briefly review such outcomes.

H.R. 2728: By extending the customary 15-day period for an employer to appeal an OSHA citation, this bill would encourage litigation, and litigation is on the side of the employer not the employee. It would delay the correction or the abatement of whatever hazards have occurred in the workplace related to that citation. As such, it can only place workers at greater risk of unsafe and unhealthy working conditions, which runs expressly counter to the purpose of the OSHA Act originally.

H.R. 2729, and I want to talk about all these bills in context first before I deal specifically with each one: By expanding the size of the Occupational Safety and Health Review Commission from three to five members, this bill simply creates a bigger bureaucracy in search of a mission. Moreover, the bill adds legal training as a qualification for appointment to the commission. It makes OSHA less effective, not more effective.

It diminishes the chances that candidates considered for selection will have the requisite expertise in occupational safety and health. They have got to have legal expertise but they do not have to have expertise and experience directly in relation to occupational safety and health. That expertise is critical to further the assurance of safe conditions for America's working men and women.

H.R. 2730: By extending deference to the Occupational Safety and Health Review Commission over the Secretary of Labor, this bill contorts and confuses enforcement responsibilities of both the Secretary and the Review Commission. Such confusion will only hinder efforts to fulfill the statutory guarantee of safe and healthy conditions for all workers in this country.

It seems like a small matter, but it is another spoonful of poison which, in the end, can be very effective in killing the elephant.

H.R. 2731: By requiring OSHA to pay attorney fees for any employer with 100 or fewer workers and a net worth of under $7 million, that prevails, even partially, upon appeal, this bill would have a chilling effect on OSHA enforcement efforts. It would almost freeze those efforts. Given that worker death rates are much higher in such firms in comparison to those with more than 100 workers, this bill would encourage litigation and seriously jeopardize progress towards improving the safety and health conditions of American workers.

Moreover, the bill would freeze safety enforcement efforts in the lion's share of private companies in light of the fact that more than 97 percent of all private employers have fewer than 100 employees on the payroll.

I might add that the practice now is for larger employers who are subject to other kinds of regulations and other OSHA standards often to subcontract to small employers and avoid being regulated in the proper way for health and safety.

These bills run counter to the real interests of working Americans, and I urge my colleagues to oppose it. As the senior Democrat on the Subcommittee on Workforce Protections, I have heard firsthand from workers around the country about very real and pressing safety and health concerns many face on the job on a daily basis. If neglected or unaddressed, these risks can have severe, and even fatal, consequences.

H.R. 2731: Requiring OSHA to pay attorney fees for any employer with 100 or fewer workers is one of those bills that certainly would create a situation where the likelihood is that less regulation would take place and more workers would be at risk.

In a May 12th forum, which we entitled ``A Job to Die For: Inadequate Enforcement of U.S. Safety Standards,'' I heard from witnesses on the front lines of an epidemic with fatal consequences. Worldwide, this epidemic is deadlier than war. From Brazil to Bangladesh, it claims 6,000 lives a day, which means four lives a minute. In this country, it claims 6,000 lives a year, which computes to one life every 90 minutes.

This epidemic takes a devastating toll on American families and communities. I think my colleagues can see from the arithmetic, we lose more workers per day from deaths in the workplace than we are losing in Iraq. I think that later on we are going to talk about how this phenomenon must be brought to the attention of the American people, starting with the Members of this body in both parties.

This is not a trivial discussion today. This is not a discussion to be quickly passed over. It is at the core of an effort to make the workplace safe and to create better conditions for working, and better respect for working families.

Working families are expected to produce the soldiers that go off to fight our wars. Ninety percent of those in Iraq are from working families, but yet we have an attempt to oppress working families with many measures. We will not even consider a minimum wage increase. We are constantly trying to change workplace safety conditions through these various measures for those members of our society who also shoulder the burden when it is time to go off and fight for the country and defend the country.

I am referring to wrongful deaths in the workplace when I talk about the

6,000 lives lost in this country per year. Individual worker deaths are not random, isolated events. Rather, they are often tragic certainties that are almost always preventable. Unlike a disease that is triggered by a mysterious or elusive virus, this outbreak is caused by the willful and reckless safety violations of certain employers. Let me repeat, the willful and reckless safety violations of certain employers.

Much has been said about the fact that most employers care about their employees. And that may be true, but there is a large, large percentage that care only about the profits, and they are constantly squeezing the workers and jeopardizing the safety and health of workers in an attempt to increase their profits. Such business owners pursue profits and their own economic interests at the expense of basic safety practices, and all too often this comes at the actual expense of workers' lives.

We have learned that for Latino workers the risk of workplace fatalities keeps rising. They right now happen to be the most vulnerable. Recent immigrants are forced to take the dirtiest and most dangerous jobs. As highlighted in the recent investigative series by the Associated Press, immigrant workers born in Mexico are now 80 percent more likely to be killed on the job than their U.S.-born peers. This is almost three times greater than the disproportionate risk of workplace fatalities for the rest of the population. Even by conservative estimates, a Mexican worker is killed on the job every day in this country.

The Federal Government is astonishingly ineffectual at combating this epidemic of wrongful deaths, both with respect to immigrant workers born in Mexico and all other workers. The current administration is replacing standard OSHA inspections with voluntary compliance programs that ignore the work sites where deaths are most likely to occur.

And much is being made by the majority party of volunteering and trusting employers. The OSHA was developed by legislation because it was clear that employers could not be trusted to safeguard the health and safety of workers. The current administration is replacing standard OSHA inspections with voluntary compliance that ignores the work sites where deaths are most likely to occur. You can find that the majority of American employers do care about their employees and safety, but that minority is the problem; and they are not being properly scrutinized.

Moreover, OSHA has increased the percentage of its budget dedicated to voluntary efforts by 8 percent. These discussions and negotiations of voluntary efforts have run off with the slight increases that have been made in the OSHA budget while they have reduced the funds devoted to safety enforcement by 6 percent.

At the same time, the U.S. continues to lag behind other Western nations in preventing workplace deaths. A construction worker in the U.S. is four times more likely to be killed on the job than a worker in Belgium. In comparison with their British counterparts, American construction workers are twice as likely to be killed on the work site.

These are critical health and safety issues we should be addressing today as opposed to the four bills that would further undermine OSHA's effectiveness in protecting American workers. We have the most productive workers in the world. We ought to appreciate that and try to protect those workers, not squeeze them more, not make them sweat more, and not endanger their lives more.

I urge my colleagues to vote against H.R. 2728, H.R. 2729, H.R. 2730 and H.R. 2731.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 4 minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. Speaker, I yield 4 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I take issue with the last statement. We are on the first quarter of a four-bill marathon. They have been put together by the majority. We choose to discuss them as we see fit.

Mr. Speaker, I yield the balance of my time to the gentleman from New Jersey (Mr. PAYNE) to close out this first quarter of this four-bill marathon.

(Mr. PAYNE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, in case any Members just came in in the last few minutes or little while or are watching on the monitor, let me remind us what we are doing. This particular hour we are giving consideration to H.R. 2729, the Occupational Safety and Health Review Commission Efficiency Act. That is what we are discussing. That is what is under debate and that is what we are going to vote on.

Mr. Speaker, in the report on H.R. 2729, the Committee on Education and the Workforce observed that once Congress has created a government agency, it must continue to monitor the government agency for its performance on behalf of the taxpayers. Surely nobody can disagree with that. When the performance of that agency is found to be unsatisfactory, Congress must seek to identify the reasons for this failure and then make the needed corrections. It is that simple. That is all this bill is about.

We are trying to make the needed corrections on behalf of the taxpayer. That is what this is about, regardless of what we previously have heard.

Mr. Speaker, we are all tasked with performing this oversight that Congress has mandated since the inception of the OSHA law. That process describes what H.R. 2729 seeks to accomplish in a narrow, surgically targeted measure. In correcting clearly identified problems, this measure will improve the agency's performance, increase efficiency and eliminate unnecessary government waste. Who can disagree with that?

Let me use this visual aid behind me to explain why it will do that. I am sure the blue and pink areas are seen prominently by all. These shaded areas represent the time periods when the agency specifically created by Congress to hear all disputes between OSHA and employers have not been able to meet. The shaded areas are an indication of a time when the review commission at OSHA was nonfunctional. It did not work. They were getting paid, of course, but it did not work.

This is since 1970. Half of the time since 1970 the review agency did nothing. That is not good for anybody, especially the American taxpayer, but more importantly, the worker or the employer.

They found it impossible or at least very difficult to perform the functions that the Congress said to them this is their job, this is what they must do.

This agency, the Occupational Safety and Health Review Commission, or OSHRC, was created by Congress for one single purpose; and, incidentally, had it not been created, there never would have been an OSHA Act. It would never have passed in 1970 had it not been for at the last minute OSHRC being put in.

Their job is hearing disputes between OSHA and the regulated community. They are the court. OSHA is the plaintiff. The small business person is the defendant. They are supposed to be totally independent of the Labor Department. To serve this important purpose, OSHRC, by statute, was given three members, or judges. Two members constituted a working quorum. That is, without an agreement between two judges on all issues of law, no decision can be issued. Without this agreement, OSHRC cannot perform its congressional mandate, and the review commission established by Congress is instead forced to shut down or come to a stalemate where waste and efficiency rule the day. Guess who gets to pay? The same old folks, the taxpayers.

Here is the problem. Stalemate and waste have been the rule over the history of this agency since 1970 rather than the exception. I am telling the Members they have been out of business half the time since 1970. As the visual I pointed to earlier, this one indicates the time of trouble highlighted by the shaded areas seems to overrun this timeline and it seems to signal a problem. And as one witness testified, these legal stalemates produce cases as long as 8 years old that sit on a court docket. That is not what Congress intended and it is not fair to anybody, 8 years of stalemate and waste.

Now we are trying to remedy that. It may be hard for Members to tell we are trying to remedy that with some of the demagoguery, but that is all we are trying to remedy. A simple remedy can be found by looking at OSHRC's sister agency, the Federal Mine Safety and Health Review Commission. There, Congress placed five members on their review panel; and since the mine safety law was passed 7 years after the OSHA Act, most believe this represents a lesson learned. With five commissioners, are they doing better than OSHA is with three? It is not hard. And the answer is, yes, they are.

A second remedial step is necessary to maximize efficiency, however; and H.R. 2729 accomplishes this by enabling the President to use what we call a ``hold-over'' provision to improve effectiveness and efficiency, which is what the taxpayers want, what we all should want. Simply stated, this provision would permit the President to ask incumbent members of OSHRC whose terms have expired to remain seated, listen to this now, remain seated no longer than 365 days, until the Senate can confirm a replacement. That lets this agency keep working.

Lastly, because the case is decided that OSHRC go on appeal directly to a United States court of appeals, we have inserted the word ``legal'' before the word ``training'' and subsection 12(a) of the OSHA Act. This directs the President to select qualified candidates, but it in no way prevents the appointments of individuals who are nonlawyers to serve on OSHRC because there is a threefold criteria for selections. It includes training, that is one of them; it includes education; and it includes experience.

Mr. Speaker, H.R. 2729 represents a very narrow change to the current law. It will have positive and sweeping consequences in terms of improving the performance and the efficiency of OSHRC while eliminating unnecessary government waste. Who can be against that?

I urge the passage of this bill. And I conclude by saying that the demagoguery earlier that says that this bill should be called More Injury and Death Marathon Act is shameful, it is embarrassing, and it is out of line.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

I want to sincerely and honestly thank the gentleman from New Jersey (Mr. Payne) for staying on the subject matter. We are indeed dealing with this bill. He and I may not agree, but at least we are having a discussion about the bill, and there may be just a couple of things that I want to make sure we have clear.

The gentleman indicated that should the President make an appointment, that that could be forever. That is simply not true. It is 365 days. The bill clearly states that. If the President makes an appointment, it is for 365 days, not forever.

Secondly, the word ``legal,'' that is an interesting thing. I tended to not want to do that too. I understand that. But the problem is, OSHRC is an adjudicative agency, and appeals from OSHRC go straight to the U.S. Court of Appeals. That strongly indicates, perhaps, some need for legal training, and this training could be a very useful tool for a member of this commission in light of the role that they play before it goes to the Court of Appeals.

Secondly, I am very concerned that the courts have been giving deference to the plaintiff. The plaintiff in this case is OSHA. The court should be the review commission. The courts have been giving deference to the plaintiff, rather than the court, and perhaps this will stop some of this.

In terms of efficiency and going from three members to five and the gentleman's indication that he is really against growing government, Congress has a very difficult time saying, you know, this is not working. We need to do something about this. This agency is not efficient. This agency is not getting done what Congress asked it to do.

I pointed out earlier that this agency has almost been out of work half of the time since 1970. What could possibly be done to make it much more inefficient than that? For some 20 percent of the agency's history, it has not had a statutory working quorum in place, and despite otherwise fully staffed people in the agency, they could not act. That is wasteful and that is inefficient.

Will five do better than three? Let us pray, is all I can tell you. It certainly has worked better for MSHA, and we hope that it will for

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I need to remind everybody that this hour is devoted to H.R. 2729, that it is about the Occupational Safety and Health Review Commission Efficiency Act. That is exactly what we are talking about.

I want to remind everyone that a President, a President of either party, is going to appoint somebody to the commission that they agree with. That makes sense, whether it be President Clinton or President Bush. But all of these confirmations have to be confirmed in the Senate, so there is a check and a balance on it no matter which party is in the White House.

The comment earlier about President Bush is more concerned about big business than worker safety , I would simply say this bill is about small business. It has not got anything to do with

big business. It is about helping small business.

To simply say, well, this is not what workers want, is very presumptive. There are 92 percent of the population out there that are working families who own businesses, who work every day, and they do want some relief in the regulatory element, particularly, particularly, when the setup at OSHA is so unfair and the deck is stacked against them.

So I will tell you that a lot of small businesses and a lot of working families do want this legislation.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, first, I would like to say to the gentleman from New Jersey (Mr. Andrews) that I have great admiration for him, that I always listen to him very carefully, and when he speaks, it is usually well thought out and there is some wisdom behind it. I appreciate that.

I do not necessarily agree with his remarks, but I am thankful he stayed on the subject, generally speaking, of the bill that is before us. I suppose actually we could sit down and probably have some long nights of discussion as to whether there should be three members, four members, five members. But both of us know that the commission is simply not working.

My suggestion is to vote for this bill and let us give a chance for something else to work, particularly when we know that the commission is working pretty well over at MSHA.

I do not know anything sinister about the appointments by the President. It is pretty simple. Frankly, what we need to do is have this commission operate. You cannot operate if it is going to take 8 years producing its findings, and that happens occasionally simply because there is no one there that can get confirmed in the Senate. We need to give Democrat or Republican Presidents an opportunity to put somebody in.

I yield to the gentleman from New Jersey.

Mr. Speaker, reclaiming my time, as the gentleman knows, the legal training simply is not the only criteria. There are other criteria, such as education and experience, and I do not necessarily think that it has to be a lawyer.

Speaking of the AFL-CIO, they have as many lawyers in this town as anybody in Washington. I am not worried about them not getting somebody on the commission.

We have probably said enough. It is time to vote.

Mr. Speaker, I reserve the balance of my time.