A LEGISLATIVE HISTORY OF OSHA
Congressman Lloyd Meeds*
I.
INTRODUCTION
As a member of the House Education and Labor Committee and its Select Subcommittee on Labor, which considered
and reported out House Report 16785; as one of the conferees
who took the Steiger OSHA substitute (H.R. 19200) to conference with the Senate; and as a member who voted for the
Occupational Safety and Health Act of 1970 (OSHA),' it has
particular meaning for me.
The House Education and Labor Committee deals with
issues which directly affect all of us. Education, anti-poverty
measures, minimum wages, and labor-management issues always have-perhaps because of their direct effects-been
among the most controversial pieces of legislation debated in
the House. Even in the company of such great national issues
as these, OSHA is unique because it has been, on one hand,
among the most highly praised, and on the other, one of the
most villified legislative endeavors in this century. Few other
laws have been so necessary and yet so difficult to resolve.
II.
BACKGROUND
If we could first determine where we are, and whither we are tending, we could better judge what to do, and how to do it. Abraham
Lincoln, 1858.2
In 1969, as in previous years, it could be predicted that
some 14,500 workers in the United States would die as a result
of accidents at the workplace; that some 2.2 million workers
would be injured or disabled on the job, with a loss of 250
million man-days of work-ten times the number of days lost
* LL.B., Gonzaga University, 1958. Member of the House Committee on Education and Labor, and the Committee on Interior and Insular Affairs. Chairman of the
Subcommittee on Indian Affairs.
t 29 U.S.C. §§ 651-78 (1970) [hereinafter cited OSHA].
I Address delivered by Abraham Lincoln at Springfield, Illinois, at the close of the
Republican State Convention at which Mr. Lincoln was named a candidate for United
States Senator, June 16, 1858, in 3 COMPLETE WORKS OF ABRAHAM LINCOLN 1 (J. Nicolay
& J. Hay eds. 1905).
GONZAGA LAW RE VIEW
[Vol. 9:327
because of strikes; that lost wages as a result of these injuries
and deaths would approximate $1.5 billion, with a loss to the
gross national product of over $8 billion. It could also be predicted that the number of disabling injuries per million manhours would be 20 percent higher than in 1958, and that there
would be some 390,000 new occurrences of occupational diseases. Many authorities were convinced that these statistics
were for the most part understated.3 This was the scope of the
problem-human and economic-which the 91st Congress
undertook to solve by enacting the Occupational Safety and
Health Act.
Long before OSHA, the federal government was involved
in occupational health matters. Federal concern in the area of
industrial hygiene can be traced back to 1902.1 By 1920, nearly
every state had adopted some kind of occupational safety and
health law. Unfortunately for the nation's workers, these laws
were more often window dressing than they were substantive.
Most regulated only mining, and the range of effort and concern from state to state was enormous. In most states, performance was minimal, and federal activity-generally tuned to
advising the state-was insignificant.
The growth of the labor movement in the 1930's and the
passage of the Davis-Bacon Act of 19315 and the Walsh-Healey
Public Contracts Act of 19366 dictated greater federal involvement in the area, but these acts were of limited scope in occupational safety and health matters, and had little impact. Concern gradually grew, however, and in 1948 during the postWorld War II era President Truman initiated presidential conferences on industrial safety. These conferences continued
throughout the period of President Eisenhower's administration. A bill calling for adoption of uniform national health and
safety codes and uniform enforcement standards was introduced in 1951 by Senator Humphrey.7 Congresswoman Leonore
K. Sullivan asked Labor Secretaries Mitchell and Wirtz for
S. RFP. No. 1282, 91st Cong., 2d Sess. 2 (1970).
Act of July 1, 1902, ch. 1378, §§ 1-10, 32 Stat. 728.
Act of Mar. 3, 1931, ch. 411, 46 Stat. 1494 (codified at 40 U.S.C. § 276(a) (1970)).
Act of June 30, 1936, ch. 881, 49 Stat. 2036 (codified at 29 U.S.C. § 557 (1970)
and 41 U.S.C. §§ 35-45 (1970)).
S. 2325, 82d Cong., 1st Sess. (1951). Senator Humphrey suggested the creation
of an accident prevention bureau.
Winter, 1974]
LEGISLATIVE HISTORY
their endorsement of legislation designed to set mandatory
standards for the handling of hazardous materials in industry.
These efforts, like preceding occupational safety and health
proposals, experienced little success.
Yet, while the 1950's and early 1960's did not see any advance in occupational safety and health legislation, some
trends were initiated which eventually resulted in the enactment of OSHA. In 1965, Congress cautiously asserted the federal government's role in this area with the enactment of the
McNamara-O'Hara Public Service Contract Act 8 and the National Foundation on the Arts and Humanities Act,9 both of
which included health and safety provisions. The Federal
Metal and Nonmetallic Mine Safety Act of 1966,1" and the
Federal Coal Mine Health and Safety Act of 196912 provided
additional positive steps for recognizing and dealing with
safety and health problems in the mining industry. Also, during this period, responses to the demand for environmental
protection and for control of industrial pollution, coupled with
cries for action following several unfortunate industrial accidents, increased the level of public concern and set the stage
for congressional action.
In January 1968, President Lyndon B. Johnson recommended to Congress what he described as "the Nation's first
comprehensive Occupational Health and Safety Program to
protect the worker on the job."' 2 But his proposal failed to
reach a vote, though subsequently a version of the bill was
reported out of the House Education and Labor Committee's
Select Subcommittee on Labor. This latter effort resulted in
H.R. 16785 the following year. 3
Early in 1969, several members of the House introduced
similar employment safety and health legislation, and in April
I Act of Oct. 22, 1965, Pub. L. No. 89-286, §
U.S.C. §§ 351-357 (1970)).
Act of Sept. 29, 1965, Pub. L. No. 89-209,
§§ 951-963 (1970)).
" Act of Sept. 16, 1966, Pub. L. No. 89-577,
§§ 721-740 (1970)).
1 Act of Dec. 30, 1969, Pub. L. No. 91-173,
§§ 902, 921-924, 931-934, 936-940, 951 (1970)).
2 114 CONG. REC. 589 (1968).
114 CONG. REC. 16769-79 (1968).
2(a)(3), 79 Stat. 1034 (codified at 40
79 Stat. 845 (codified at 20 U.S.C.
80 Stat. 772 (codified at 30 U.S.C.
83 Stat. 742 (codified at 30 U.S.C.
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President Nixon announced his intention to submit an Administration bill.''
Interest in job safety legislation thus carried over into the
new session at a high level. This growing (and bipartisan) interest produced a renewed and broadened concern for the need to
create a "Safety Bill of Rights" for America's workers.
III.
CONGRESSIONAL AiMS
Congress did not act sooner in this area due to its reluctance to broadly interpret its powers under the commerce
clause. Historically, concern for safety and health matters has
primarily been dominated by state legislatures. But in 1969 a
consensus was forming. An examination of state performance
in the area left no doubt of the need for decisive federal action.
The House Education and Labor Committee summarized its
findings in the following pertinent language:
Clearly, the life of a worker in one state is as important as a
worker's life in another state, and uniform standards must be required to protect all workers from dangerous substances. Despite
this obvious need, state response has been minimal. Federal leadership and assistance are necessary to change this record of inaction.
It cannot be claimed that industry is too diverse for Government programs to be effective in lowering accident rates, when it is
a fact that in the states with good occupational safety and health
programs the accident rate is 19 per 100,000 workers, and in states
with poor programs it is 110 per 100,000 workers-or over 500 percent higher.
However, the Committee recognizes the problem of comparing
the health and safety records of one state with another. Accurate,
uniform reporting standards are an evident Federal responsibility.'"
Senate Report 2193 concluded with the following statement:
In sum, the chemical and physical hazards which characterize modern industry are not the problem of a single employer, a single industry, nor a single state jurisdiction. The spread of industry and the
115 CONG. REC. 8771-2 (1969).
H.R. REP. No. 1291, 91st Cong., 2d Sess. 15 (1970). Another interesting method
of comparing occupational safety efforts among the states was suggested in the debates: In some states, the ratio of safety and health inspectors to game and fish
inspectors was 1 to 30. See SENATE COMM. ON LABOR & PUB. WELFARE, 92d Cong., 1st
Sess., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
(Comm. Print 1971) 1040.
Winter, 1974]
LEGISLATIVE HISTORY
mobility of the workforce combine to make the health and safety of
the worker truly a national concern.
In addition to the variances between state safety laws and
enforcement practices, the concern for the safety and health of
workers varied considerably from industry to industry and from
employer to employer. Many employers and specific industries
could be recognized for their efforts to provide a safe and
healthful workplace and work environment. But these were
truly exceptional situations. Most employers approached occupational safety and health problems with either partial, or total
indifference. For economic reasons most small businesses had
taken few actions expressly tailored to improve worker safety
and health. Many businessmen, while recognizing the value of
maintaining a stable, healthy workforce, found that cost barriers, limited technological ability and a paucity of information
stifled the development of employee health and safety programs.
Coupled with these problems, worker health and safety
conditions were further exacerbated both by the absence of
uniform standards, and by the spiraling introduction of new
substances and technologies into industry-technologies and
substances whose effects on workers had not even been studied.
Further, new scientific knowledge was being uncovered which
divulged cause-and -effect relationships between occupational
exposures and many of the so-called chronic diseases-cancer,
respiratory ailments, allergies, heart disease and others-that
had never before been suspected. It was estimated that a new
and potentially toxic chemical was being introduced into industry every 20 minutes. 7 The technical complexity of occupational safety and health concerns was becoming a difficult matter to consider and act upon; this was true for even the largest
of firms and employee representative organizations. The dilemma of the smaller businessman was further magnified by
the competitive disadvantage to the more conscientious employer, especially in cases where there existed a long period
between exposure to hazards, and the resultant manifestation
of illness. Simply put, the problem of assuring safe and healthful working conditions became too big, too complex, and too
'7
S. REP. No. 1282, 91st Cong., 2d Sess. 4 (1970).
Id. at 2.
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urgent for any approach other than decisive federal action.
Agreement on this point was not hard to reach. But it was
difficult to determine the approach to be taken and the methods to be used in setting and enforcing uniform standards.
In January 1969, Congressman James O'Hara introduced
House Report 3809, an early version of OSHA. A similar bill,
Senate Report 2193, was subsequently introduced by Senator
Harrison Williams in May 1969. The Administration introduced its proposal (H.R. 13373 and S. 2788) in August 1969. It
was intended to "help guarantee the health and safety of workers." IX
There existed substantial differences between the Democratic and Administration bills. Considerable disagreement
arose regarding the question of who was to possess the right to
set and enforce safety and health standards. The O'Hara and
Williams bills' vested this authority in the Secretary of Labor.
President Nixon proposed that this function reside in a specially created National Occupational Safety and Health Board.
The parties split into the classic factions: management favored
the Administration proposal, while labor agreed with the Democrats that the Secretary of Labor should set and enforce the
standards. Other areas of contention included: (1) balancing
the employers' "due process" rights (especially in "imminent
danger closing" situations) with the employees' rights to protection and right of access to "relevant information"; (2) the
"walk-around" rights of each during inspections; (3) citations
and penalties; and (4) "consensus standards." Nevertheless,
amongst the controversies there existed areas of agreement and
understanding. There was general recognition that a number of
occupational areas possessed existing, relevant standards
-even though they were neither universally nor uniformly
applied. Such standards existed in various federal contract
regulations; 21 in codes such as those enforced under the Contract Work Hours and Safety Standards Act; 21 in consensus
standards promulgated by the American National Standards
22
Institute"
and the National Fire Protection Association;' in
115 CONG. REC. 22510 (1969).
H.R. 3809, 91st Cong., 1st Sess. (1969); S. 2193, 91st Cong., 1st Sess. (1969).
' E.g., 41 U.S.C. § 35(e) (1970).
21 40 U.S.C. § 333 (1970).
22 See AMERICAN NATIONAL STANDARDS INSTITUTE, CATALOG (1973). Individual
Winter, 1974]
LEGISLATIVE HISTORY
proprietary standards, such as those promulgated by the American Conference of Governmental Industrial Hygienists;" and
in various standards promulgated by the Manufacturing Chemists Association and the Associated General Contractors.I2
There was general agreement that these standards should not
be ignored but rather that they should be reviewed, modified
and codified wherever practical.
Thus, the task of designing a viable health and safety act
required development of procedures for: promulgating and enforcing standards, researching unexplored areas of concern,
inspecting working conditions, and educating employers and
employees as to what the new standards are and how to comply
with them.
There was general recognition that resolution of these matters would be a slow step-by-step process and that the resultant
legislation would pervade all areas of occupational health and
safety. " It is unfortunate that this broad agreement has been
obscured by the controversy surrounding a few contested issues.
IV.
TRACING
OSHA IN THE 91ST CONGRESS
The House Select Labor Subcommittee held 15 days of
hearings during 1969 on the O'Hara bill, 27 and the Senate took
an additional 12 days of testimony in 1969 and early 1970. The
Administration was represented at the House hearings by Secretary of Labor George P. Shultz and the Assistant Secretary
of Health, Education and Welfare (HEW) for Health and Scientific Affairs, Dr. Roger 0. Egeberg. Business, labor, and interested members of Congress were well represented by the
numerous public witnesses who also testified.2
standards on safety and related subjects are available by contacting Managing Director, American Nat'l Standards Inst., 1430 Broadway, New York, N.Y. 10018.
1 E.g., NATIONAL FIRE PROTECTION ASS'N, NATIONAL FIRE CODES (No. 30, 1969).
Individual codes, standards, and practices also are available in pamphlet form; Director, Nat'l Fire Protection Ass'n, 60 Batterymarch St., Boston, Mass. 02110.
24 E.g., AMERICAN INDUSTRIAL HYGIENE ASS'N, HYGENIC GUIDE SERIES, 14125 Prevost, Detroit 27, Mich.
25 E.g.,
MANUFACTURING CHEMISTS' ASS'N, SAFETY GUIDELINES, 1825 Conn. Ave.,
N.W., Washington, D.C.
4 Especially in the health area, it was understood that considerable research and
study would be necessary in order to develop standards.
H.R. 3809, 91st Cong., 1st Sess. (1969).
115 CONG. REC. D446, D457 (1969).
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With this extensive testimony and Congressman O'Hara's
bill as a starting point, early in 1970 the Select Subcommittee
undertook to draft a "clean" bill. Subcommittee Chairman
Daniels' proposal was redrafted seven times before it was submitted to the subcommittee for consideration. With strong
labor support, the Democratic members of the subcommittee
approved this seventh draft and the full committee prepared
to take it under consideration. As noted, the Daniels bill differed substantially from the Administration's proposal. The
Republican members of the subcommittee proposed amendments which were intended to narrow the differences in favor
of the Administration, but their efforts were rejected, often on
straight-line party votes. This was interpreted by the Republican members of the subcommittee as an "unwillingness to
compromise," and in protest, they boycotted the final meeting
of the subcommittee.
H.R. 16785, commonly referred to as the Daniels bill, was
finally reported out by the subcommittee, and on March 19 it
was taken up by the full committee despite the minority's boycott.
The minority's hopes for a compromise temporarily were
buoyed when Congressman William Steiger of Wisconsin submitted a further revision of the Administration bill to the full
committee. This measure was also defeated, and the committee sessions were suspended until June to provide additional
time for attempts to strike a compromise. Not satisfied with
these efforts, the minority absented itself from the next scheduled meeting of the full committee on June 3.
In a final effort to reach agreement before taking a bill to
the floor, the minority members, with help from the Labor
Department and Democrats Hathaway of Maine and Burton of
California, produced yet another revision. This proposal would
have created an Occupational Safety and Health Court, not
unlike the Tax Court, with powers to exercise jurdisdiction over
violation issues. This proposal, too, was defeated by the full
committee, and H.R. 16785 was reported on June 13. Twelve
of' the 15 Republican members of the committee expressed their
nonacquiescence in their statement of Minority Views on H.R.
16785. In addition to stating that they felt the majority's willingness to compromise was purely "illusory," they found H.R.
16785
Winter, 1974]
LEGISLATIVE HISTORY
unacceptable because in rejecting the concept of an independent
Board to set standards, the bill would create a monopoly of functions
in the Secretary of Labor. Such a monopoly not only ignores the
element of fairness to those required to comply with the Act, but also
fails to resolve the jurisdictional division between HEW's
responsibility for health and the Labor Department's for safety. In
addition, the Committee bill does not overcome the widespread
objection to permitting an inspector to close down a plant in
imminent-danger situations. We regard this as a serious shortcoming. Lastly, the Committee bill contains a sweeping general duty
requirement that employers maintain safe and healthful working
conditions. This broad mandate is grossly unfair to employers who
may be penalized for situations which they have no way of knowing
are in violation of the Act.2
The minority view was concluded with the following statement:
However, we regard the establishment of an independent Board to
promulgate standards and due process as essential provisions which
cannot be omitted from any bill which genuinely purports to have
the best interests of employees and employers as the basis for its
enactment. Hence, we intend to offer our own proposal, which was
rejected by the Committee's majority, as a substitute for H.R. 16785
as reported by the Committee.'
Subsequent Republican efforts to convince the Rules Committee to consider a Steiger substitute3 in lieu of the committee bill failed, and following the summer recess on September
22, the committee bill was granted a rule. Congressmen
Steiger and Sikes, a week earlier, had introduced a further
revision of the Administration bill, H.R. 19200. They intended
to offer it as a substitute for the committee bill on the floor.
The Senate committee passed its health and safety bill on
September 25. Even though it represented further compromise
between the Williams bill:2 and the Administration proposal,
the basic questions of administrative arrangements and the
"imminent danger closing" provisions were not solved to the
minority's liking.*' S. 4404, counterpart to Steiger's H.R. 19200,
was introduced by Senator Dominick on September 29. It also
was to be offered on the floor as a substitute for the committee
bill. The minority utilized several tactics, including a filibusH.R. REP. No. 1291, 91st Cong., 2d Sess. 47 (1970).
Id. at 51-52.
H.R. 13373, 91st Cong., 1st Sess. (1969).
:12S. 2193, 91st Cong., 1st Sess. (1969.
'*
1' S. REP. No. 1282, 91st Cong., 2d Sess. 55-57 (1970).
GONZAGA LAW REVIEW
[Vol. 9:327
ter, in order to prevent or at least delay the committee bill from
reaching the Senate floor. It did become pending business,
though, and on November 16, Senator Williams was successful
in getting the Dominick substitute tabled. The committee bill
was then taken up, and following a series of compromise
amendments, including a key Javits amendment, 4 it was
passed by a vote of 83 to 3.
On November 23, the House committee bill reached the
floor and, as promised, the Steiger bill was introduced as a
substitute. In his opening remarks, Congressman Daniels indicated his willingness to seek a compromise. He stated that he
was ready to introduce a number of amendments to his committee's bill to satisfy the principal minority objections. The
minority suggested three reasons for rejecting this approach
and adopting the substitute bill: first, many members felt that
Daniels' offer of compromise was too late, a feeling rooted in
the belief that the substitute bill might well pass; second, it
was argued that the Daniels amendments would leave one of
the most important areas of disagreement untouched-the
question of whose authority it should be to set standards; third,
Congressman Steiger read a letter from Secretary of Labor
Hodgeson supporting the substitute bill. The Steiger substitute
was adopted and passed on the following day.
On December 8, a House-Senate conference was called to
iron out the differences in the two bills. Chairman Perkins'
later statement that this was "not an easy conference" was a
sizable understatement.
The following provides a brief review of the differences
between the House (Steiger) bill and the Senate (amended
Williams) bill:
A major concession on the part of the managers representing the
House of Representatives was with respect to the procedure to be
used in the development and promulgation of the health and safety
standards. The . .. Senate bill provided for promulgation of these
standards by the Secretary of Labor. The House amendment authorized their promulgation by a National Occupational Safety and
Health Board.... [Tihere were many similarities in the Senate
a'OSHA § 11(a) established a three-member appeals commission to adjudicate
violation appeals.
116 CONG. REC. 42200 (1970).
Winter, 19741
LEGISLATIVE HISTORY
bill and the House amendment. . . . The chief difference lay in the
fact that the procedure for setting standards under the House
amendment were [sici under the formal rulemaking procedures
also provided in the Administrative Procedure Act. The House receded on the procedure for promulgating standards. We accepted
the Secretary of Labor as the promulgator of the standards and we
adopted the informal rulemaking procedures which the Senate bill
authorized.
We accepted a provision that hearings should be required only
when requested by interested parties . . . . There were important
Senate concessions even in this area, however. The Senate receded
with respect to a provision in their bill which would have permitted
a shortened rulemaking procedure for the-issuance of existing proprietary standards. In addition, in adopting the Senate language the
House insisted on an amendment under which employers may petition for a temporary order granting a variance. . . . The employees
of such an employer are entitled to notice and hearing on such an
order ....
The differences . . . with respect to inspection . . . were not
major, save in two respects. The Senate bill would have required an
employer to make periodic self-inspections to be followed by a certification of the results to the Secretary of Labor . . . . The conferees
adopted the principle of self-inspection . . . . but no certification
of the results may be required.
Under the provisions of the Senate bill both a management and
an employee representative had to be given an opportunity to accompany an inspector. The conferees adopted this principle . . .3
Congressman Perkins further stated that the Senate bill
provided for an immediate issuance of a citation upon the "determination" of a violation of mandatory requirements. The
House amendment provided that if the Secretary "believes" a
violation exists, he shall issue a citation. The conferees accepted the word "believes," but added that citations must be
issued with "reasonable promptness." Further, the Senate bill
separated proceedings for issuance of citations from those for
imposition of penalties, while the House amendment combined
these two functions into one proceeding. On this, the House
receded. Both House and Senate bills provided for judicial review of commission decisions, but the Senate bill provided
appeal rights to any person aggrieved by a commission order
while the House bill limited the right of appeal to employers
and the Secretary. The House receded on this also. Perkins
went on to state that the Senate bill provided for a civil penalty
GONZAGA LAW REVIEW
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of up to $1,000 for each violation. The House bill was similar
except for "nonserious" violations where the penalty was to be
discretionary. Both the Senate and the House bill provided for
civil penalties of up to $1,000 a day for violation of an imminent
danger order. On this point the House language was accepted.
The Senate bill provided criminal penalties for willful violations-up to $10,000 and/or 6 months in jail, doubled after a
first conviction. The House on the other hand assigned a civil
penalty of up to $10,000 for willful or repeated violations. In
this regard the conferees agreed to retain criminal penalties
where a violation resulted in an employee's death.37 Turning
attention to the matter of imminent dangers, the Senate bill
authorized the Secretary to seek court orders requiring removal
of the danger and withdrawal of endangered persons. The bill
did not limit the duration of such temporary restraining orders,
"although the ten-day limit in the Federal Rules of Civil Procedure was applicable." The Senate bill further permitted the
Secretary to issue an administrative shutdown order "where
there was insufficient time to obtain a court order." The House
amendment, likewise, authorized the Secretary to seek court
orders to restrain conditions or practices responsible for imminent dangers. But such orders were to remain effective for only
5 days, and there was no grant of authority to issue administrative shutdown orders. With minor changes in the House language, the Senate receded.3
Perkins pointed out that there also existed a "major difference in the two bills in the treatment of the proposed effect on
other preexisting health and safety statutes." He explained
this further by stating:
The Senate bill said the act should not apply to working conditions [over] which other Federal agencies exercise statutory authority affecting occupational safety and health, while the House
amendment excluded employees whose working conditions were so
regulated. The House language had an additional exclusion relating
to employees whose safety and health were regulated by State agencies acting under section 274 of the Atomic Energy Act of 1954. The
House receded on the first point; the Senate receded on the second.
The Senate bill provided that safety standards under any law
administered by the Secretary of Labor-Walsh-Healy, Service
Id. at 42201.
" Id.
Winter, 19741
LEGISLATIVE HISTORY
339
Contract Act, Construction Safety Act, Arts and Humanities Act,
and Longshore Safety-would be superseded when more effective
standards are promulgated under this act, but until then they were
deemed standards under the present act. The enforcement process
of this act was thus added to the enforcement procedures of those
other acts. The House amendment repealed and rescinded standards under the Walsh-Healy, the Service Contracts, and the Arts
and Humanities Acts. All construction industry employers were exempted from this act and the entire industry brought under the
Construction Safety Act. That act was amended to make the enforcement provisions of this act applicable. Unlike the Senate bill
which left the hearing of contract violation cases with the Secretary,
the House amendment provided the hearing of such cases by the
Safety and Health Commission. The House receded.
The conferees intend that the Secretary develop health and
safety standards for construction workers covered by Public Law 9154 pursuant to the provisions of that law and that he pursue the
same mechanisms and resources for the development of health and
safety standards for all the other construction workers newly covered
by this act, including those engaged in alterations, repairs, painting
and/or decorating.
It is understood by the conferees that in any enforcement prosuch other acts, the
ceedings brought under either this act or under
3
principle of collateral estoppel will apply.
The final major area of disagreement confronting the conferees was that of the "general duty." Perkins explained the
conference resolution of this matter as follows:
The Senate bill required workplaces to be free from "recognized
hazards." The House amendment required such places to be free
from "any hazards which are readily apparent and are causing or
likely to cause death or serious bodily harm." The House provision
was adopted with the Senate's "recognized hazard" term replacing
the House's "readily apparent hazard."
The Senate bill required each employee to comply with occupational health and safety standards and the rules, regulations, and
orders issued under this act. The House amendment had no comparable provision. The House receded.
The Senate bill made provision for the establishment of a National Institute for Occupational Safety and Health, and also established a National Commission on State Workmen's Compensation
Laws, the latter to undertake a study and evaluation of the effectiveness of workmen's compensation statutes. Both the Institute and the
°
Commission were accepted by the conference."
Id.
40Id.
39
GONZAGA LAW REVIEW
[Vol. 9:327
After considerable discussion, the Conference Report was
accepted, and the Occupational Safety and Health Act was
finally passed. Albert Quie, the Education and Labor Committee's ranking minority member, indicated on the floor that the
conference had not only achieved its goal of creating safer and
healthier working conditions through effective federal legislation, but also had produced a measure "which, to a substantial
degree, is consistent with the recommendations of President
Nixon."" Strong support of the conference agreement was
voiced by Labor Secretary Hodgeson. High praise, however,
was not all the conferees received. A number of House members
who had supported the Steiger substitute felt that the House
conferees had prematurely capitulated to Senate insistence
that the Secretary, and not an independent Board, set the
standards. This feeling was bolstered by Senator Williams'
statement that "the bill agreed on in conference reflects, to a
most unusual degree, the wishes of the Senate." The mood in
the House was clearly expressed by Congressman Sikes, cosponsor of the Steiger substitute, as follows:
Now, at the conclusion of a great deal of work by many people,
the House is being asked to make a difficult choice. The bill which
has been brought to us by the conferees is not-and I repeat-is not
as good a bill as the bill which passed the House. That bill passed
with a vote of 383 to 5, and that should have been reason enough
for the conferees to insist on the House bill and bring it back to us,
but this is not being done.
Let it be understood that the bill on which the conferees have
agreed is a better bill than the . . . one passed by the Senate.
Industry generally recognizes this, and is prepared to live with the
results, but this bill is not as good as the House bill in many significant respects, and it is not clear in other respects, and that can prove
to be a dangerous situation. 2
This has been a rather lengthy review of the events leading
up to the passage of OSHA, but an awareness of this background facilitates an understanding of the controversy and
confusion presently surrounding the Act. To sort out a usable
statement of "congressional intent" from such a history is a
difficult task. It is further compounded by the inherent complexity of the law, not to mention the implementation problems experienced by all parties. Much of the confusion sur"Id. at 42202.
Id. at 42207.
Winter, 19741
LEGISLATIVE HISTORY
rounding "congressional intent" can be attributed to these
stumbling implementation efforts. Hence, one of the key
questions constantly raised is whether the implementation
guidelines responsibly reflect the intent of the Congress. The
issue of "consultation" is one area of the problem which has
been widely discussed.
V.
CONSULTATION
The Labor Department's present posture regarding consultation is best expressed in its own "Compliance Operations
Manual"-the inspector's bible.43 There it is stated:
An inspection begins when a [Compliance Safety and Health
Officer] enters an establishment; apparent violations must then be
cited. Therefore, when providing consultative services such
consultation shall not be held at any employer's establishment. If
an employer requests consultative services, he shall be told that he
can meet with OSHA in the Area or Regional office ...
Consultative services to public groups shall be performed on a
priority basis established with the approval of the AD (area director). Safety and health handouts and promotional materials may be
used to help educate employers and employees regarding the Act
and the standards and regulations."
The Department's lack of consultative performance in the past
year is further exemplified by the following passage, also from
the Compliance Manual:
Consultation with trade associations, professional groups and societies, unions, educational institutions and other public groups is encouraged only to the extent of manpower availability. The AD shall
exercise his management skills and judgment in making decisions
regarding allocation of manpower resources in this area.45
The neglect accorded matters of consultation is attributable to
the severe manpower shortage the Administration has inflicted
upon itself through continued underfunding of OSHA inspector
ranks.
Another aspect of this problem which has given rise to
much discussion is that of consultation at the worksite. A succinct statement of the need for-and dangers of-on-site con'
OFFICE OF COMPLIANCE, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S.
DEP'T OF LABOR, COMPLIANCE OPERATIONS MANUAL (Jan. 1972) [hereinafter cited
COMPLIANCE MANUAL].
" Id. at IV-5.
Id. at IV-4.
GONZAGA LAW REVIEW
[Vol. 9:327
sultation is found in the July 27, 1972, record of the Senate
Oversight hearings on OSHA. The following excerpt is from the
testimony of Jacob Clayman, Executive Director, Industrial
Union Department, AFL/CIO:
Senator Packwood. Is it fair that the employer, who for years
has assumed he was . . . in compliance with State standards and
met the standards is finding the first time the OSHA inspectors
come . . . his ladder is inappropriate . . . when he has never before
been forced to comply with the standards-does not know about it.
You do not object, surely, to at least giving him a chance to
comply without a fine on a first visit, do you?
Mr. Clayman. It depends on what you mean by "chance." If you
cite a situation that is relatively meaningless, then any kind of
inspector with any sense at all, commonsense, will not provide a
fine. You understand, a citation does not carry with it an automatic
fine. The fines generally come when there has been some serious
violation, as the inspector sees it.
If I may address myself to the broader implication, the approach . . . of small business and perhaps big businesses, that the
initial approach would be one of voluntarism. In other words, the
inspector comes out and he merely advises, regardless of the gravity
of the situation, regardless of how aware or unaware the employer
may have been. Often an employer is fully aware of the problem...
and yet he has done nothing, and so we have had a bad experience
with voluntarism. That is why, indeed, we have the present law.
Senator Hughes. [Wie have repeatedly, by almost every witness representing industry and small business employers, had the
recommendation made that they should be allowed to call the
OSHA office, and ask them to send out an inspector, to tell them
how to comply with the law, and show them whether or not they are
in compliance with the law without being fined for it.
On the other hand, the National Safety Council in a statement
filed with us emphasized the importance of an effective compliance
program of at least having the authority to impose, first inspection
penalties, even if not always used; in other words, latitude in the
process.
Now, if I understood you correctly, that was the approach you
took.
Mr. Clayman. We believe the inspector should have the authority, if necessary . . . to propose a penalty . . . if the circumstances
demand it. Now, then, we need inspectors who use judgment. I do
not think we are going to instill judgment by the passage of Acts.
Winter, 1974]
LEGISLATIVE HISTORY
We do that by sound administration. We do that by the Department of Labor doing its job carefully .... 11
The Administration's approach, on the other hand, has not
been of such a flexible, judgemental nature; its attitude has
been characterized as "take it or leave it." In fairness, it could
be argued that inflexibility is a desirable attribute in the process of implementing a law as complex as OSHA. The consistency inherent in this approach, though, helps compensate for
its rigidity. One might reasonably have anticipated that as the
Department accumulated experience it would develop a congruent growth in flexibility. Unfortunately that has yet to
occur. The Department's Solicitor argued:
Under the Williams-Steiger Act, the Department of Labor is
legally precluded from providing any consultation visits on an employer's premises without triggering the Act's enforcement procedures. Section 9 of the Act provides that, upon inspection, a compliance officer who believes that an employer has violated a requirement of the Act must report such an alleged violation. If the area
director concurs, an appropriate citation and in many cases a proposed penalty will be issued to the employer. Since section 8 makes
it clear that any entering upon the employer's premises is regarded
as an inspection provided for in section 9, appropriate enforcement
action would have to be taken following a consultation visit.
It is true that section 21(c)(2) . . .provides that the Secretary
of Labor consult with employers and employees, or their representatives, as to effective means of preventing occupational injuries and
illnesses. Section 21(c)(2) does not expressly provide, however, that
such consultation be conducted on the employer's premises. Absent
that express authorization and coupled with the clear language in
sections 8 and 9 . . .we are precluded from interpreting section
21(c)(2) as authorizing nonenforcement consultation visits on the
employer's premises. 7
Based on this interpretation, the Department has supported amendments to OSHA designed to separate on-site consultation from the inspection process. Such legislation was introduced in the 92d Congress by William Steiger, but was not
enacted. The Department's spokesmen have called for consultations which "would consist of examining the workplace and
advising the employer of what violations exist and explaining
some of the possible actions that could be taken to correct the
11Hearings on S. 2193 Before the Subcomm. on Labor of the Senate Comm. on
Labor and Public Welfare, 92d Cong., 2d Sess., 264-67 (1972).
11Id. at 363.
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[Vol. 9:327
situation."4 The Department feels that such legislation should
provide for imminent danger situations, employee participation, and consideration of violations disclosed during a consultation when proposing penalties in a subsequent inspection. It
is questionable whether all of the problems raised by Mr. Clayman's testimony49 can be solved by this proposal. The sacrifices
present in this situation require careful consideration. It is unfortunate that the Department treats the flexibility afforded
under section 21(c)(2) so disdainfully. The need to protect the
employee, and at the same time assist the employer, can be
effectively fulfilled by the authority granted in OSHA if it is
interpreted as simply: the location and citation of all violations
plus the selective imposition of penalties tempered with the
good judgment recommended by Mr. Clayman. Congress intended that OSHA function in this manner.
Many of the occupational safety and health bills considered by the 91st Congress treated the Secretary's consultation
responsibilities similarly. The bill introduced by Mr. O'Hara
(H.R. 3809) contained the following statement:
The Secretary, in consultation with the Secretary of Health,
Education, and Welfare, shall provide for the establishment and
supervision of programs for the education and training of employers
and employees in the recognition, avoidance, and prevention of unsafe or unhealthful working conditions in employments covered by
this Act, and to consult with and advise employers as to effective
means of preventing occupational injuries and illnesses.
Substantively identical language is found in H.R. 843,1' section
16(c) (Mr. Hathaway, January 3, 1969); H.R. 13373,2 section
18(d) (Mr. Ayres, Aug. 6, 1969-the Administration's bill); S.
219313 as introduced, section 16(c), and S. 278811 (Senator Javits). The Daniels bill (H.R. 16785)" 5 included the same language with the addition of "and employees, and organizations
representing employers and employees" after the word "employers" in the next to the last line. Identical language was
1 Id. at 264-267.
,9Id.
H.R. 3809, 91st Cong., 1st Sess. 25 (1969).
H.R. 843, 91st Cong., 1st Sess. 74 (1969).
H.R. 13373, 91st Cong., 1st Sess. 36 (1969).
S. 2193, 91st Cong., 1st Sess. 25 (1969).
S. 2788, 91st Cong., 1st Sess. 36 (1969).
H.R. 16785, 91st Cong., 2d Sess. 37 (1970).
Winter, 19741
LEGISLATIVE HISTORY
included in the Steiger substitute, H.R. 19200"6 and S. 219311
as reported and passed by the Senate.
The problem in obtaining a fair interpretation of this Act
and its history, regarding consultation, consists neither of great
confusion nor of paucity of information. The question to be
answered is one of "administrative intent," i.e., what motivated the Department of Labor to implement OSHA as it did?
The controversy over first-visit citations and penalties is
largely due to the problems of implementing the Act. The Act
-but not the Department's instructions to its inspectors-is
permissive along the lines Jacob Clayman suggested. Firstvisit citations need not be followed by proposed penalties
Inspections may include advice and information on how better
to comply with the regulations. With provisions like these, why
did there exist such widespread complaining about "hardnosed" inspectors who on their first visit would cite and propose penalties for insignificant violations? This was evidence
that the manner of initial implementation produced distorted
impressions of the Act in the minds of businessmen-especially
small businessmen. The law they were subjected to differed
significantly from the law Congress had intended to create.
Another controversial, yet contrasting area of OSHA, concerns the employer's "general duty" to provide a safe and
healthful workplace. The House Report on H.R. 16875 states
the following about the need for a general duty section:
Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Courts often refer to
this as a general duty to others. The Committee believes that employers are equally bound by this general and common duty to bring
no adverse effects to the life and health of their employees throughout the course of their employment. . . . Section 5(1) merely restates that each employer shall furnish this degree of care. There is
a long-established statutory precedent in both Federal and state law
to require employers to provide a safe and healthful place of employment. Over 36 states have these provisions, and at least four Federal
laws contain similar clauses, including the Walsh-Healey Public
Contracts Act, the Service Contract Act, the Longshoremen's and
Harbor Workers' Act, and the Federal Employers' Liability Act.
An employer's duty under Section 5(1) is not an absolute one.
It is the Committee's intent that an employer exercise care to fur-
H.R. 19200, 91st Cong., 2d Sess. 50 (1970).
" S. 2193, 91st Cong., 2d Sess. 50-51 (1970).
GONZAGA LAW REVIEW
[Vol. 9:327
nish a safe and healthful place to work and to provide safe tools and
equipment. This is not a vague duty, but is protection of the worker
from preventable dangers."
The Senate committee's Report emphasized that
precise standards to cover every conceivable situation .will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because
there was no specific standard applicable to a recognized hazard
which could result in such a misfortune. Therefore, to cover such
circumstances, the committee has included a requirement to the
effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and
safety of their employees."
Both House and Senate committees cited the testimony of
Governor Howard Pyle, President of the National Safety Council, that he gave before the Select Subcommittee on Labor on
November 5, 1969, as follows:
If national policy finally declares that all employees are entitled
to safe and healthful working conditions, then all employers would
be obligated to provide a safe and healthful workplace rather than
only complying with a set of promulgated standards. The absence
of such a general "obligation provision" would mean the absence of
authority to cope with a hazardous condition which is obvious and
admitted by all concerned for which no standard has been promulgated10
The Senate committee also included a concomitant employee obligation in their section 5(b) which expressly placed
on each employee the obligation to comply with standards and
other requirements of the Act."'
The House language required workplaces to be free from
"any hazards which are readily apparent and are causing or are
likely to cause death or serious bodily harm." By contrast, the
Senate bill called for workplaces to be free from "recognized
hazards." The conferees adopted a combination of this language requiring a workplace to be "free from recognized hazards that are causing or are likely to cause death or serious
physical harm." The conferees also adopted the Senate's
"employee duty" section.
'
H.R. REP. No. 1291, 91st Cong., 2d Sess. 21 (1970) (emphasis added).
S. Rep. No. 1282, 91st Cong., 2d Sess. 4 (1970).
H.R. REP. No. 1291, 91st Cong., 2d Sess. 21 (1970).
S. REP. No. 1282, 91st Cong., 2d Sess. 10-11 (1970).
Winter, 19741
LEGISLATIVE HISTORY
The objections voiced to the "general duty" requirement
were that it was vague and open-ended and thus "unfair" to
employers. The conferees addressed these objections in the redrafting and compromising that produced the final bill. The
dispute was resolved by limiting the application of duty to
"recognized" hazards, which readily can be detected by the
human senses, and which generally are known to be hazardous.
It also was made clear in the discussion of the conference action
that this section should not be exploited in order to rationalize
the setting of ad hoc standards. It generally was understood
that it would be used infrequently, with primary reliance on
the specific standards. It should be noted that no penalty was
included for violation of this section, unless the employer was
informed of the unsafe condition and thereafter refused to correct it. In contrast to the Department's interpretation of "congressional intent" regarding consultation, their implementing
instructions on general duty violations clearly reflect congressional thinking. The Compliance Manual indicates that "the
general duty provisions should be used in inspections only
where there are no specific standards applicable to the particular hazard involved." 62 The Manual further states that "penalties shall be proposed for serious, willful, or repeated violations
61 3
under the general duty clause.
VI.
CONCLUSION
The preceding account of OSHA's enactment demonstrates that the translation of ideas into laws is a difficult, and
sometimes confusing, process. There exist other aspects of
OSHA which could have been included in this article, but an
effort was made to focus on only the most controversial, and
hence, the most demanding issues.
Despite the controversy generated in the consideration and
passage of the Act, and the additional controversy stemming
from its translation into and implementation as a government
program, one must attempt to keep in mind its major purpose.
This legislation was passed in an effort to reduce, and potentially eliminate, job-related deaths, injuries and diseases. In
the final analysis of the program, this must be the main crite"
COMPLIANCE MANUAL, supra note 43, at VIII-2.
"
Id. at VIII-3.
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rion of success.
Unfortunately, data that might provide a conclusive comparison of pre- and post-OSHA death and injury rates is not
yet available. In fact, industry is just now, under OSH Administration regulations, beginning to keep detailed records of occupational accidents and illnesses. Still, some general conclusions may be drawn today from preliminary government, union
and industry findings:
eTens of thousands of workplaces that had never before been inspected are now being scrutinized under OSHA. Thanks to greatly
increased employer, employee, and public consciousness concerning
safety and health matters, every workplace is being looked at anew
from this perspective.
eFor the first time in the history of the Nation, uniform health and
safety standards are being uniformly applied.
*The climate of health and safety consciousness generated by
OSHA has stimulated exciting new research into the causes and
preventions of occupational accidents and diseases.
eThe broad coverage of OSHA and the universal threat of inspections have had a salutory effect: spending for health and safety
research has risen dramatically.
*The Act and the regulations have provided a "floor" for labormanagement bargaining on issues of occupational health and safety.
Safety committees at the plant level have undergone a revitalization.
eThe heightened awareness of occupational hazards, and the
worker's right to a safe and healthful workplace have created a basis
for more significant labor-management cooperation.
eIn industries with a history of concern for worker health and safety,
and in those which have been closely regulated, the uniform coverage provided by the Act has resulted in significant increases in employee productivity."
The extent of the Act's success can only be determined
after the collection and analysis of considerable data.
OSHA will be the subject of substantial scrutiny in the
years to come, even as it becomes more accepted and less controversial. This is as it should be. The data, the OSH Administration's policies and procedures, and the basic tenets of the
Act itself should be the subjects of constant review. Hopefully,
those future reviews will declare OSHA a progressive and inspired piece of legislation.
1, E.g., Consolidated Edison of New York and the St. Regis Paper Company have
estimated that employee productivity has increased by 14-15% because of the Act.