October 26, 2007 The Pump Handle 0Comment

[Updated (10/30/07) below]

Representatives from the National Association of Manufacturers (NAM) and the Chamber of Commerce met this week with White House Office of Management and Budget in a last-ditch effort to influence OSHA’s rule clarifying employers’ obligation to pay for workers’ personal protective equipment (e.g., safety goggles, metatarsal boots, gloves). They likely repeated their claims that OSHA’s PPE payment rule is a case of

“…economic transference, not employee safety and health. …employers already pay for the majority of personal protective equipment used in the workplace. But to mandate that they pay for all of it is pure economic regulation and well beyond the Secretary’s authority…”

There’s nothing new about industry groups’ opposition to new worker protection standards, nor their efforts to derail or dilute these rules by lobbying the Department of Labor or OMB/OIRA officials. What is disturbing about this week’s meeting was that no one from OSHA was present.

Under Executive Order 12866, whenever OIRA officials meet with outside parties about a regulatory action (such as this OSHA rule) a “representative from the issuing agency shall be invited.”  Was OSHA’s invitation lost in the mail, or was it never sent?

More than 8 years ago, OSHA proposed a rule designed to clarify that employers are supposed to provide and pay for PPE. (OSHA tried in 1994 to make this clarification through a policy memorandum, but it failed under legal challenge (Sec of Labor v. Union Tank Car, OSHRC Docket No. 96-0563).)  Under Bush’s Labor Department, a final version of the rule was in perpetual limbo until two labor unions filed suit in January 2007 to compel OSHA to issue it.

“It is long overdued that the agency take action on protective equipment,” said Joseph Hansen, International President of the United Food and Commercial Workers.  “Now, we are asking the courts to force OSHA to act.” 

The U.S. Court of Appeals (DC Circuit) set a March 19 deadline for the Secretary to respond to the unions’ lawsuit.  As the date rapidly approach, the Department filed papers with the Court stating:

“The Secretary has carefully reviewed the regulatory schedule and has determined that absent unforeseen circumstances, she will publish a final PPE payment rule in November 2007.”

On several occassions throughout the year, OSHA’s Asst. Secretary, Edwin Foulke, Jr., repeated the Department’s promise to publish a final rule in November 2007.

So, with November closing in, the Chamber and NAM representatives decided to make a final plea to (possibly) sympathetic ears at OMB.  Making their pitch to OMB’s John Morrall were Marc Freedman of the US Chamber of Commerce, Baruch Fellner of Gibson, Dunn & Crutcher, and Jason Straczewski of the NAM.  Mr. Mark Freedman may be familiar to Pump Handle readers as the lead contact for the “OSHA Fairness Coalition” in their efforts to defeat progressive legislation in the 110th Congress, including the House bill on diacetyl.  Their slogan describes their goal:

“…to improve workplace safety by bringing more fairness and balance to the OSH Act.”

[Trust me, “fairness” and “balance” doesn’t extend to workers themselves.]

Baruch Fellner may be familiar to others as the witness at an April 2007 hearing in which he callously referred to diacetyl-induced bronchiolitis obliterans as a hazard du jour while Mr. Eric Peoples sat less than six feet away.  Mr. Fellner seems to believe that OSHA’s record of standard setting is A-OK (even though the agency’s only issued one new health standard in the last 10 years), saying:

“I respectfully submit that while the process appears glacial and cumbersome, it strikes an appropriate balance among the complex scientific, economic and public policy considerations.”

We’ve reported previously on industry reps making their pilgrimages to OMB in the waning days of OSHA and MSHA rules (and I give credit to John Graham, the former OMB director, who started posting records of these meetings on OIRA’s website).  If Mr. Fellner and Mr. Freedman are serious about their committments to fairness and balance, I hope they would endorse an amendment to Executive Order 12866.  Specifically, whenever OIRA officials meet with outside parties about a regulation proposed by OSHA or MSHA, a worker who is likely to be affected by the rule must be invited to the meeting and his or her wages and travel expenses paid (by the party requesting the meeting).   And, of course, someone from the agency should attend as well.

Update 10/30/07: Reps. George Miller and Lucille Roybal-Allard sent a letter to OIRA Director Susan Dudley expressing “deep concern” about OIRA’s violation of Executive Order 12866 with respect to OSHA’s payment for PPE rule and OIRA’s failure to invite an OSHA representative to attend the meeting.

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