Workers and Public Should Have Enhanced Access
to Review Commission, says National COSH
LONGMEADOW, MA – The National Council for Occupational Safety and Health (National COSH) has filed a petition before the U.S. Occupational Safety and Health Review Commission (OSHRC), calling for greater worker and public participation in Commission proceedings.
“Workers know best how to prevent the hazards that cause injuries, illnesses and death on the job,” said Mary Vogel, Executive Director of National COSH. “To make sure our workplaces are safer, workers’ voices must be heard loud and clear. And we need to shine as much light as possible on what is too often hidden from view – the unsafe practices that put workers at unnecessary risk on every shift, day and night, every day of the week.”
“For 44 years, the OSH Act has explicitly given workers the clear right to be involved when employers appeal OSHA citations,” said Eric Frumin, Health and Safety Director for the labor union coalition Change to Win. “As conditions change and employers try to narrow worker participation, the Commission must keep its rules current and preserve this fundamental right.”
“When employees appear before the Review Commission, they should get a fair shake and be full participants,” said Randy Rabinowitz, Co-Director of the Occupational Safety and Health Law Project.
According to preliminary data from the U.S. Bureau of Labor Statistics (BLS), more than 4,400 workers died in 2013 following on-the-job incidents. BLS data shows more than 3 million non-fatal workplace injuries in 2013, and a University of California study estimates more than 50,000 U.S. deaths annually from long-term illnesses related to workplace exposure.
The Review Commission, created by the Occupational Safety and Health Act, hears appeals of OSHA violations and penalties issued against employers following OSHA inspections. With OSHA doing nearly 40,000 inspections annually, the Commission hears some 2,700 employer appeals every year. Many of these cases involve critical issues for the workers affected. The outcome can literally determine whether workers will suffer serious injury or die if employers don’t fix the violations.
The OSHRC is currently considering revisions to its procedural rules. In a petition filed Friday, Jan. 23rd by the Occupational Safety and Health Law Project, National COSH joined North America’s Building Trades Unions, Change to Win and the United Steelworkers, calling for specific changes to enhance worker and public participation.
National COSH and its partners in this petition filing are calling for:
An expanded definition of “affected employee”
As of now, only a worker who is directly employed by an employer with a case before the Review Commission can participate as a party to OSHRC proceedings. With more and more companies using temporary and contract workers — who may be “directly” employed by a different company such as a staffing agency– National COSH and fellow petitioners argue that OSHRC should allow full participation by any worker at a multi-employer worksite who is affected by the hazard or violation under appeal.
This is similar to the existing standard used by the Occupational Safety and Health Administration (OSHA) when assessing safety hazards at construction sites, which typically involve multiple employers.
A consistent right for workers to select their own representatives at Review Commission hearings
Although the OSH Act allows employees the right to select individuals or organizations to represent them during Commission proceedings, this provision of Federal law is not always honored in practice. “OSHRC judges,” the petition states, “have expressed skepticism, if not downright hostility, to the individuals who have sought to represent workers before OSHRC, or have imposed unreasonable limits on a representative’s participation.”
The petitioners seek to clarify that the Review Commission’s existing rules allow a worker to choose an attorney, pastor, community organization, union or other representative to act on their behalf, with no limits placed on participation by chosen representatives.
More sunlight on Review Commission proceedings:
Under current Commission rules, any statement or information offered during settlement talks regarding major cases before the Review Commission is treated as confidential, regardless of the source of the information.
This overly restrictive confidentiality rule, petitioners point out, is narrower than Federal Rules of Evidence. It has the unfortunate side effect of preventing workers from using information obtained outside of Review Commission proceedings as part of ongoing efforts to improve workplace conditions. As petitioners argue, employees
“[L]earn about everyday working conditions, hazards employees face and violations during their daily work activities. They… have a right to demand improvements in working conditions and to bargain with employers to gain safer workplaces. They also have a right to communicate with the public in their efforts to improve their working conditions.”
“No worker should be silenced just because his or her employer tries to hide unsafe practices behind a cloak of so-called ‘confidentiality’ while trying to settle an OSHA citation,” said Vogel. “As the Review Commission seeks to update its procedures, the common sense reforms we are suggesting will help it function more effectively for all parties and uphold the public’s interest in creating safer workplaces.”
National COSH links the efforts of local worker health and safety coalitions in communities across the United States, advocating for elimination of preventable hazards in the workplace. “Preventable Deaths 2014,” a National COSH report, describes workplace fatalities in the United States and how they can be prevented. For more information, please visit coshnetwork.org. Follow us at National Council for Occupational Safety and Health on Facebook, and @NationalCOSH on Twitter.