Wrongful Death Accountability Act

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, 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.

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

I rise in opposition to H.R. 2730. This bill does no more than any of the others before us today to address any critical safety and health needs of American workers.

H.R. 2730 gives the Occupational Safety Review Commission policy- making authority by permitting courts to give deference to the commission with respect to interpretations of OSHA standards. In this way H.R. 2730 weakens the fundamental powers of the Secretary of Labor. Those of us on this side of the aisle maintain that the Secretary of Labor is best able to regulate and enforce safety standards.

We asked the question, and never got any answer, as to whether the current administration supports H.R. 2730 given its stated purpose. Having stated this clear reason for my opposition to the bill, which I urge my colleagues to follow, I would like to turn my attention once more to another urgent safety concern. This pertains to the highly disproportionate death rate of Latino workers in this country.

As I referenced in my opening statement, a recent series of articles by the Associated Press documented the toll this rising death rate is taking in the Latino community. I would like to relate several egregious cases of Latino worker deaths and put a human face on this alarming social problem.

Case number one, Miguel Victor Canales. Miguel Canales was killed 4 years ago while securing shingles to the roof of a new luxury home being built in Arlington, Virginia. Miguel fell off the roof because another employee had failed to install a safety brace. Miguel's stepson was a coworker who witnessed the fatal accident. Miguel's death so traumatized the stepson that he was unable to speak for the following 6 months.

The employer, Octavio Estevez, was an unlicensed subcontractor without workers compensation insurance. Octavio Estevez had routinely failed to pay his employees their rightfully earned wages. After his death, Estevez refused to pay Miguel's prior earned wages to the surviving family members. The employer relies on day laborers and refuses to provide them with any safety equipment or training.

The second case is Joel Bajorques. Joel was a 21-year-old from Guatemala who was killed when he fell off a roofing job in Rockville, Maryland, into a vat of hot tar.

This took place on a commercial project undertaken by a roofing company. Joel died from severe third degree burns over his entire body. As unbelievable as it may seem, Joel's death was ruled to be the result of natural causes.

Joel's surviving parents and siblings in Guatemala had depended upon his wages to help support the entire family. Since Joel's death in 2002, another worker at the same company has been killed in the exact same way.

Case number three: Juan Vasquez, a Guatemalan worker, was killed using a jackhammer during his first day on the job. He was working at a private home in Bethesda, Maryland, when a brick wall collapsed on him. He had not been given even a hard hat. His employer refused to cover any of the funeral expenses or to provide any compensation to his surviving wife and two young sons. As a result, Juan's family had to borrow more than $6,000 to pay for shipping the body home and burial expenses.

Case number four: Urbano Ramirez was a Mexican farm worker killed by heatstroke while harvesting cucumbers in North Carolina. The exact circumstances of his death are as follows. Urbano felt faint and was told by a foreman to go sit under a tree. Neither he nor any of the other workers had been provided with water. When the foreman had the workers change fields that day, Urbano was left behind and forgotten. His body was not found until 10 days later. Failure to provide workers with water violates an OSHA standard. In the end, the grower was only fined $1,800 for this OSHA violation that caused the death of Urbano Ramirez.

Let me also review how OSHA is faring in addressing the skyrocketing rate of Latino worker deaths. To date, OSHA has limited its efforts to creating a Spanish language Web page and distributing Spanish language pamphlets to Mexican consulates. Yet very few vulnerable immigrant workers are likely to be reached in this manner. OSHA's Hispanic Task Force is mainly comprised of regional administration with no prior knowledge of issues confronting Latino workers. In fact, for the past 3 years, the Bush administration's budget has zero-funded the only OSHA program, called Susan Harwood Grants, to provide union and community- based outreach on safety issues to immigrant workers. Members on this side of the aisle successfully opposed these cuts.

Clearly, OSHA needs to step up to the plate on this issue and take serious, concerted steps to address the crisis posed by Latino worker deaths.

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

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

Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Woolsey).

Mr. Speaker, may I inquire as to the number of minutes remaining for this debate.

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

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

Mr. Speaker, I yield 5 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 myself such time as I may consume.

Mr. Speaker, I mentioned before that I wanted to make an amendment to any one of these four bills because they are all about OSHA, and I thought my amendment was germane. I would like to describe what that amendment would have been.

It is a bill now, H.R. 4270, and it would amend the OSHA Act in three ways. First, it would strengthen sanctions for a worker's death or deaths caused by an employer's willful violations of basic OSHA safety standards. The current sanction is a mere misdemeanor with no more than 6 months in prison and a fine of up to $10,000. Some jurisdictions seek stiffer penalties for failure to return a library book. My bill would change this penalty to a felony with up to, but no more than, 10 years in prison.

Second, my amendment would increase the penalty for illicitly warning of an OSHA inspection, from up to 6 months imprisonment to up to 2 years.

Third, my amendment would increase the penalty for lying to or misleading OSHA, from up to 6 months imprisonment to no more than 1 year imprisonment. In all instances, fines would be decided upon in the same way judges decide other fines, in accordance with title 18 of the criminal code.

This bill, H.R. 4270, and in the Senate it is S. 1272, sponsored by Senator Corzine; this bill corrects a glaring oversight in Federal law and policy: the inability to pursue a felony conviction of an employer who willfully causes the death of workers. To quote a New York State supreme court justice, a felony sentence would serve as a warning to other employers; employers who, in pursuit of their own economic interests, care to be cavalier about the lives of others.

When sentencing a man responsible for the collapse of an illegally conducted scaffold that killed five immigrant workers in Manhattan, this same supreme court justice remarked, ``The collapse of this scaffold was not a tragic accident; rather, it was a tragic certainty.'' She went on to say that the case had given her an education as to how ``astonishingly ineffectual'' the Federal Government has been in protecting the workers' lives.

This judge, Rena Uviller, emphasized that OSHA penalties for willful safety violations that result in worker deaths merely amount to a $10,000 fine and a misdemeanor sentence of no more than 6 months' imprisonment upon the first conviction. The maximum penalty for a second-time offender is a $20,000 and no more than 1 year imprisonment.

In concluding her sentencing, Judge Uviller sent a message to us on this floor today by observing, ``Why Congress has adopted such a spineless response to industrial malfeasance is best left to the voters to assess.''

Why has Congress adopted such a spineless response to industrial malfeasance, to owners, managers, bosses who willfully violate the regulations and thus cause the death of a worker?

I think this would have been a germane amendment. I am sorry that in the committee it was dismissed. My amendment addresses the needs of workers. Every other one of these four bills focuses on the needs of employers, ways in which you might frustrate the efforts, dilute the efforts of OSHA so that employers and small business owners would benefit greatly while workers suffer more.

I think it is very important that we note that we have failed in a four-bill marathon of more than 4 hours to allow the minority to address any of the interests and concerns of the working families of America. This is a clear indication of exactly where the majority stands with respect to working families.

They have other programs that they offered, one called HOW, H-O-W, Hire Our Workers, which runs counter to the kinds of activities they have conducted over the last 10 years with respect to the dilution of the powers of OSHA and, at the same time, the dilution of the powers of the organization process of unions.

I think it is important to note that the business of today has to be the business of being concerned about workers. It cannot be merely the four bills which seek to make OSHA safer for employers.

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

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

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

Mr. Speaker, I rise in opposition to H.R. 2729, the second quarter of the four terrible bills before us, which amends section 12 of the Occupational Safety and Health Act of 1970 to expand the Occupational Safety and Health Review Commission from three members to five members. They tell me that logically they are having a difficult time moving forward with three members; so, therefore, let us make it larger and we can move faster. That is a pretty good analogy. It is kind of the first time that larger is better. I always heard that they said lean and mean, that is where our government should be, cut down, reduce, get people out of our government.

So here we have kind of a, once again, making things convenient. There we go again. So as I look at these bills, H.R. 2728, H.R. 2729, H.R. 2730, H.R. 2731, they all go into the same sort of stealth kind of quiet killing. And I remember we talked now H.R. 1 was the top bill in our committee, Leave No Child Behind, education, our current President was going to be the educational President, he wanted to be known as. However, 4, 5, 6, 7 years ago, the Republican Party was out to eliminate the Department of Education. When Secretary Bennett took his job, he said, My job is to eliminate this Department, we do not need a Department of Education; I hope that I can dismantle it, when education now becomes a number one issue.

So I have problems trying to figure them out because one day it is there and the next day it is over here. This bill is just similar to that. This bill appears to require that commission members have legal training and provides that the President may extend the term of a member until the Senate has confirmed a successor, and that is pretty good because they can simply put up someone they know will not get confirmed and they can keep hold-overs forever. The commission has functioned with three members since its establishment in 1970.

The authors of the Occupational Safety and Health Act did not feel that there was sufficient work to justify five members and experience does not demonstrate otherwise. That is the reason, in their judgment, they decided to have three members to this commission rather than five. The majority states: ``While there are similarities between the mission of the Mine Safety and Health Administration and the Occupational Safety and Health Administration, there is one significant difference: the composition of the adjudicative commission tasked with adjudicating disputes between employers and the agency,'' that it is a difference.

It is true that the Mine Safety and Health Review Commission has five members, while the Occupational Safety and Health Review Commission has only three. However, it is also true that the Mine Safety and Health Review Commission has broader responsibilities, including responsibility for resolving whistleblowing complaints, than does the Occupational Safety and Health Review Commission. There is a difference in what they do and in their jurisdiction.

The majority wants to expand the size of the Occupational Safety and Health Review Commission to make it commensurate with the Mine Safety and Health Review Commission, but is unwilling to give the Occupational Safety and Health Review Commission commensurate duties. In other words, they use that as the model, but do not give it the same power.

Mr. Speaker, I believe also that the addition of the word ``legal'' as a modifier to training is also problematic. As a matter of fact, to me it is nonsensical. The Occupational Safety and Health Act requires that the President consider currently the ``training, education, and experience'' of potential review commission nominees. If enacted, H.R. 2729 would require the President to consider the ``legal'' training, education, and experience of potential nominees. Why is this necessary for its inclusion? It has been functioning well up to now.

The majority states that ``the requirement that training be legal in character will not prevent the selection of any other qualified individual

whose experience and/or education is of a nature to qualify him or her for service,'' that it is not necessary; however, it is put in. And the question is, Why?

In other words, the addition of the word ``legal'' does not restrict the President to only appointing those with legal training. The President may still appoint individuals exclusively on the basis of their experience or education even if they do not have legal training. The effect then of adding the word ``legal'' as a modifier of ``training'' is only to limit the kind of training that the President may consider. This, of course, makes no sense whatsoever.

Current law, which does not preclude the President from considering legal training or even legal education among other types of training or education, seems preferable to H.R. 2729, which arbitrarily links the kind of training the President may consider.

Health and safety experts who may not have legal training, but may nevertheless be very knowledgeable about the Occupational Safety and Health Act, and agency and commission procedures may be unfairly and unwisely excluded from consideration for the position of the commission since people would question that it must be important if the term legal now is put into the bill, and, therefore, they would not put it in and therefore ignore it. I think that it has taken a wrong turn. I do not think it is necessary.

I believe that the commission and workers' health and safety would suffer from such an arbitrary exclusion of nonlawyer talent and expertise.

Another point brought up by the movers of this bill is that this bill, in my opinion, does not improve the efficiency of the commission as the proponents said it does because there is an argument that if there is one vacancy, then there is no decision because there is a tie. My fellow colleagues on the other side have recommended we add two people. Now what happens if one person is still absent? One and one is a tie if we only have two. With five, two and two is a tie if one is vacant. So if one is vacant under three, I am still trying to see what the difference is if there is one vacant under five.

One difference is that taxpayers certainly would have to be paying more money because we would have more people to tend with, we would have more folks, and we are once again making bigger government. We are just expanding, which, once again, confuses me because I have always been told that the other side wanted to reduce the size of government.

So I would just like to certainly urge the defeat of this bill.

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

Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Woolsey), the ranking member of the Subcommittee on Education Reform of the Committee on Education and the Workforce.

(Ms. WOOLSEY asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield 3 minutes to the gentleman from New Jersey (Mr. Andrews), the ranking member on the Subcommittee on Employer-Employee Relations of the Committee on Education and the Workforce, who does an outstanding job in that capacity.

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

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

Mr. Speaker, I would indicate that the gentleman, putting this ``legal'' terminology in here, I hear him passionately argue this bill and bring his points up. If the new appointing authorities would look at him, he would probably not be one who would be considered because he is medical and not legal. I think that he would probably serve well on that commission, but his legislation would probably discriminate against him.

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Texas (Mr. Hinojosa)

Mr. Speaker, I yield the balance of my time to the gentleman from New York (Mr. Owens), the ranking member of the Subcommittee on Workforce Protections, who has done an outstanding job for working people.

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

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

It is probably appropriate to remind everyone that we are on the third of four bills, H.R. 2730. It is about the independence review of OSHA's citations. That really is what we are discussing this hour.

Mr. Speaker, it gives me great pleasure to yield 5 minutes to the gentleman from Indiana (Mr. Pence), my friend.

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

Mr. Speaker, I yield myself whatever time I may consume.

Mr. Speaker, H.R. 2730 squarely focuses on the needs to reestablish Congress' intent and the needs to have an effective system of checks and balances on agencies like OSHA when they are given so much latitude to interpret the scope of their own authority.

Mr. Speaker, Congress gave OSHA an unprecedented level of authority to enter the workplace in 1970, and it knew that with this unprecedented level of authority ran the possibilities of abuse, and there are more than a few occasions of that over the last 35 years. As with all matters under American law, there is a fine line between implementing needed protections and overintrusiveness by a government agency. That is very important stuff.

With this in mind, Congress devised a system of checks simply to keep OSHA within the boundaries of the playing field established by Congress. Let me provide a good example.

Many of my colleagues will recall the front page of the Washington Post on January 4, 2000. The headline in the upper right-hand corner of the Post read, ``OSHA Covers At-Home Workers.'' I use this example not to rub salt in old wounds left over from the Clinton administration, but simply to say that OSHA has a rather checkered past, shall I say, when it comes to interpreting the limits of its authority under the OSH act.

Left to its own devices, OSHA has a history of crossing the line and going out of bounds. I am not making that up. There are examples after examples. While OSHA may think they break the rules for the right reasons, others see these attempts to expand the agency's reach as an intrusive, unauthorized government act.

Funny, but the legislative history behind the OSH act seems to suggest that Congress envisioned these power grabs.

You have to be rather proud of the Congress in 1970. And let me call my colleagues' attention to the visual I will now point to as proof.

This visual clearly indicates how the systems of checks that Congress placed on OSHA was intended to work. What you see is lifted directly from the Congressional Record of November 17,

1970. That was the very day that a compromise was struck that removed the threat of a Presidential veto, and it calmed the resistance that had prevented the passage of the OSH Act for years. As Senator Javitz noted at the time, the future of the OSH Act depended on the establishment of OSHRC. Without this system of checks being put in place, the OSH Act might not have passed in 1970, perhaps not at all.

That compromise, without question, structured an independent judicial review agency which, and I quote, ``without regard to the Secretary of Labor can find for or against him on the basis of individual complaints.'' I submit that what Senator Javitz said on the floor of the Senate November 17, 1970, has a direct and clear application to H.R. 2730. That is, under the OSH Act, Congress intended there to be a truly independent review of the disputes between OSHA and employers, and when this dispute centered on OSHA's interpretation of its authority, that OSHRC and not the prosecuting agency, OSHA, was to be the final arbiter.

The review commission is the court. The Labor Department is the prosecutor and the small business owner, generally, is the defendant. And that is quite simply all H.R. 2730 does. In one sentence, this legislation restores the systems of checks and balances that Congress truly did intend 34 years ago. This measure could not be crafted more narrowly to serve a more direct purpose.

Now, my colleagues may not agree with what Congress said in 1970, but the fact remains they did say it. It is only common sense to have an entity that can review unfettered interpretations; and it happens every day, like OSHA's jurisdiction over individual homes. That is why OSHRC was created and why Congress broke with the administrative tradition in 1970.

I want to refer back to the chairman's analogy, because, I say to the gentleman from New Jersey (Mr. Payne), I happen to like it. A police officer writing a citation for a speeding violation does not and should not get the chance to serve as an impartial judge or jury. He simply has a biased opinion on the matter. OSHA should not have that right either.

I urge my colleagues to vote ``yes'' on passage of H.R. 2730 because it restores congressional intent as it reinstitutes a system of checks and balances and just may prevent the kinds of interpretations that have drastically, drastically expanded OSHA's reach into the workplace in the past.

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

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

Mr. Speaker, let me just point out, we are talking about H.R. 2730. That is on the review commission and OSHA. That is the subject of this hour's debate and this bill.

I once again remind Members, we are talking about working families, ninety-two percent of the working families who own businesses who have friends work for them. They are the working families that we are talking about.

Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Isakson).

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

Mr. Speaker, frequently I watch debates and the point has been made. Everybody has said what they have to say; it is frequently repeated many times, but we never seem to yield back the time and get to the vote. Mr. Speaker, I think it is time to vote.

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