Workers Memorial Day - A Second Perspective

This was left as a comment for yesterday's post, it's very much worth reading:

"In the early 1980s, I was a laid off Safety Professional and accepted a job at OSHA as a temporary position (until the recession cooled off.) My passion for the profession, however, only “heated up” after experiencing the "sense of job accomplishment" while working at OSHA -- i.e., through the authority vested to a law enforcement officer to accomplish hazard abatement. This so called temporary job lasted 25 + years because there is no better job than working for OSHA and knowing that you make a difference by improving workplace safety for the American people. OSHA folks can be proud, especially when you know that your quality work and actions saved someone from pain and suffering. This satisfaction is best achieved through inspiring employers and employees to address root causes by implementing effective management systems that manage safety and health.

Conversely, in order to cope with the traumatic job stress involved with catastrophes and fatality investigations, I believe that it is important to know that you did a quality incident investigation inspection. Accurate and verifiable fact finding and evidence gathering by an OSHA investigator is, in my opinion, the most important aspect for the family and friends of the victims.

Last year, I taped a web-cast with Fred Manuele at OTI. With Fred’s 50+ years of experience in the discipline, he personally thanked each and every one of the OSHA folks for doing what they do. Fred emphasized that the Agency, originally named “Our Savior Has Arrived”, has made incredible advances over the decades and that we should keep up the great work.

On this Workers’ Memorial day, when Congress held hearing to improve the Act, may we all pray for those workers’ at risk of serious physical harm. As important, please do not forget all of those who died needlessly and those disabled workers who struggle day-to-day to survive with physical, emotional, and financial troubles caused by a workplace injury or illness."

To steal from the Jimmy V Foundation motto "Don't give up. Don't ever give up." Remember that what we do today will effect others tomorrow, and the day after, and the day after that, and...

Workers Memorial Day

Today is Workers Memorial Day, a day we all recognize as a time to lament the loss of workers throughout the world. There are plenty of rallies and demonstrations out there for you to participate in if you wish, but I use this day to reflect.

Anyone out there who thinks we have one of those cushy government jobs should spend a couple of days with one of us as we do a fatality investigation. It's been a quite few years since I did my first fatality, but my memories of it are as vivid today as they were then. Looking down and realizing I was standing in the blood of a man who was, at that very moment, in the morgue, his wife and child just finding out. They say you never forget your first, and they're right.

I get asked every now and then why I work for OSHA. I get asked by friends and family, employers, employees and once in awhile by people on the street. Some of them ask with curiosity, some with disdain and even a few with respect. I always try to explain, but I'm never very good at it, maybe it's because I lack the words or maybe because there are no words to describe what I've seen. When I was young my father gave me a poster. It showed a beautiful waterfall ending in a deep pool of water surrounded by vegetation and a caption that said "If you do not understand my silence, you will not understand my words."

For me Worker's Memorial Day isn't about rallies and people railing against injustice, for me it is about remembering those past fatality investigations and taking a moment of silence. I hope you understand.

Injury and Illness Rates

I received an e-mail with a few more suggestions on why BLS numbers continue to drop, so check them out and if you have other suggestions let me know and I'll include it on the list.

Follow-up to Comments

I received a couple of comments on my last post that I want to share and comment on. First:

"Many clarifications are needed for the artile on safety and health. The one that most upsets me is that OSHA watches OSHA. If you are VPP Star or attempting such, you are audited by private industry (SGEs). That is correct. And let me tell you - they send the "top guns" to audit you. Safety and health is work both in government and private industry. If you want to be the best you must put forth the extra effort - just like the "outside"!"

I agree that it looks... questionable that OSHA evaluates itself for VPP, but then again I don't think we should be in VPP. VPP is about recognizing those who take safety and health above and beyond, but I think OSHA should do just that, without being recognized for it.

As for sending out the SGE "top guns" I have wonder about that. Under Henshaw we practically gave VPP away. Not including employees in the S&H process? No problem, you're doing everything else, so here's your Star. No respirator program? That's OK, we trust you to write one, so here's your Star. Obviously I'm indulging in a little hyperbole, but not much. There are companies that got into VPP with higher than industry average injury rates. How? By showing they had a good program on paper. Don't misunderstand, I love VPP, but it has to be earned, not bestowed.

"A national OSHA Safety & Health Program is so needed. I have reviewed the regional programs and the Chicago plan is by far the best. “One card does not make a deck.” To the Agencies benefit, some safety & health has already been integrated into directives, but it is not the way to go. Also, OTI addresses CSHO safety in many of their courses. However, it is a start and needs uniformity in terms of policy and procedures.

For example, how many folks know & follow the electrical best practices contained in NFPA 70E? Are all the CSHOs aware that the Construction Directorate incorporated 70E-2004 provisions as national policy (by interpretation letter)? Do CSHOs know these guidelines, including how to follow the arch flash boundary guidelines or that they need to wear FR clothing protective equipment when inside the flash boundary radius? Clearly, OSHA needs to improve with respect to its people being "qualified" to perform electrical inspection and testing activities?

On a positive note, OSHA can utilize experienced staff to develop an overall safety & health program elements – that is, someone other than a Program Analyst or professional without any field experience. The Region 5 program is a start and the Agency should expend resources to accomplish this important endeavor on a national basis."

I'm not sure a big national S&H program for OSHA is the answer. Certainly it doesn't hurt, but most of us have inspected large companies that have numerous work sites and have great written corporate S&H programs, but which aren't being implemented locally (nursing homes are notorious for this). Why? Because the local manager isn't committed to S&H. OSHA is no different than any large organization with numerous locations, the commitment to S&H goes only as far as the AD takes it, which is typically only as far as the RA takes it.

As for the arch flash boundary, I know it exists, but I don't know how far it extends. But then again, I'm and IH and if it takes more than a Woodhead, I'm making a referral. Part of any good S&H program is teaching people what they don't know, so they don't get themselves into trouble. I'm not qualified to inspect a crane, or an electrical junction box, or commerial SCUBA diving, so I won't put myself in those situations.

OSHA's Own S&H

I received a couple of comments on how we deal with our own safety and health. Here's the first comment:

"I agree. I think that we should step up to the plate and demonstrate to employers that we are leaders. Does any one know what our TCIR/MSDs/etc rates are for the field? NO?

We should do everything that is required of the employers that we enforce. I can already hear the naysayers.... don't kid yourselves. We aren't any better (on average) than many companies out there. We're not. Fact.

So, why don't we start focusing this strong enforcement effort on ourselves? Who's with me...????"

Are you nuts? All Federal Agency injury rates are posted (I did a quick Google search and found them). The incident rate for all private industry was 4.2 in 2007. The incident rate for all of the federal government was 4.2 in FY 08. The incident rate for OSHA in FY 08 was 2.1. Yes, one-half the private industry and government rates. In FY 08 we had a total of 19 injuries that had lost time, 19! I've been in places that had that many injuries every week. Our lost time rate was 0.91, for all government it was 1.74 and for private industry it was 2.1. Unfortunately there is no breakdown of the causes of injuries. By the way, we had no fatalities in FY08, in fact, the data goes back to 1998, and we haven't had a fatality in all of that time.

So when the commenter says "We aren't any better (on average) than many companies out there. We're not. Fact." The judges say "Bzztt. Sorry, wrong answer." We are, in fact, better than most companies out there.

The second commenter responded to the first comment with:

"As long as OASAM has jurisdiction over OSHA, forget any real enforcement. They won't do squat. Further DOL is a certified Federal agency with a Safety and Health Committee, meaning that OSHA has no jurisdiction over the agency unless the S&H committee requests an OSHA inspection. Even then, OASAM has no real power and the RA's that won't rat on each other.

Thanks to the NCFLL, they bargained away the regional S&H committees in the last contract negotiations, so in effect, there is only one group running all of the S&H for the entire DOL(the S&H national committee). They are so in the pocket of anything OSHA needs to do that they are useless.

NCFLL you blew it! You gave away safety. You made OSHA and the rest of DOL weak safety organizations. This is to include MSHA.

OSHA will talk about what a great job they are doing in several of the regions, but what real oversite do they have? Anything comperable to what private sector has? The answer is no, and when they claim to be VPP don't believe them. Who is really evaluating their VPP status?

Answer======Other OSHA folks.

Hmmm. Duh they make STAR status VPP."

First, read the Directive: Federal Agency Safety and Health Programs, specifically section H.4. We can, in fact, file a complaint against ourselves. Why anyone would do this is beyond me, but it can be done.

Yes, the agency has a responsibility to protect my safety and health. To that end, I have great equipment, and excellent training. What more can they do? Region 5 requires their CSHOs to hang sampling pumps on themselves whenever they sample employees. Maybe that could be a national policy. Automobile accidents are probably our biggest threat, and certainly that is something that should be addressed. But what more should OSHA do for me?

My question is, where does our responsibility to protect ourselves lie? We expect companies to train their workers in hazard recognition and the controls used to protect themselves, but aren't we already trained? If I inspect a site and review a training record that has my education/training/experience I can guarantee that I would consider that employee adequately trained for almost any job out there.

When it's said that OSHA requires an employer to do this or that, is it really some nebulous concept of the agency or is it the CSHO? The "Agency" isn't doing the inspection, I am. The "Agency" isn't writing the violations, I am. The "Agency" isn't testifying before the ALJ, I am. I tell employers all the time, through citations, what they have to do to protect their employees, how can I, as a CSHOs, not be expected to do the same thing to protect myself?

I have certainly put myself in situations that I shouldn't have been in, situations that my AD would have chewed my ass off for if he knew. But I knew when I did it that it was something I shouldn't be doing, it was a conscious decision. If a CSHO puts themselves in harms way without realizing it, I have to wonder how good their hazard recognition skills really are.

Food for Thought

An OSHA friend recently forwarded me an e-mail conversation he had with one of his friends about what direction OSHA should head. Here's the part that really got me thinking:

"If I'm safety czar, I end fatalities first, permanent disability second. We need a motor vehicle standard, and better tools to enforce fall protection - almost always top 3 in fats. Ergo to me is a huge can of worms because even with a standard you WILL get tied up in court forever - it may take legislation rather than a standard to fix that problem."

The e-mailer went on to say:

"I will add also that I am very much in favor of quick adoption of consensus standards...One easy fix to the problem, at least in my opinion, is allow us to adopt a consensus standard under the Direct Final process, but it becomes a temporary rule - no longer than 2 years, but rulemaking is limited to just the sections that have substantive objections. If more than say, 3 parties object to the same provisions, or more than 50% of the rule is objected to by different parties, it goes back to 6B."

I don't necessarily agree with the fatalities first idea because I think we're capable of working on multiple fronts. But then, I already know what I think, I want to know what other people think, where should we start?

Buffalo News, Again

The Buffalo News is still hammering OSHA. How can they not understand that no one should die at work?

More on Jordan Barab

Several comments came in that I'm going to address. First:

"Doesn't an appointed acting usually become the OSHA head? I know Snare did not, but he seemed the exception."

No, my memory is that neither Henshaw nor Foulke were appointed as DAS before being nominated. The nominee for Assistant Secretary is expected to stay away until they are confirmed. Second:

"What does a political deputy do? Make sure the OSHA head speaks the party line?"

No, that job actually belongs to the Secretary and Assistant Secretary. The OSHA organizational chart doesn't really show it, and I suppose it's subject to change, but the career DAS oversees the Directorate of Enforcement Programs and the 10 Regions. The political DAS gets everyone else. I think that the term "political DAS" is a bit of a misnomer, it really means is that they got their job because of their political connections to the ruling party. In this case it has nothing to do with their actual job tasks. We do have a political wing, but I think that wing is under the Department, not OSHA.

Next:

"It could mean one of two things:

1) They intend to nominate Barab for the A/S but needs to be further vetted (ie: is he yet another tax dodger, etc) so in the mean time he'll be Acting. Or...

2) They intend to nominate someone else (ie: John Howard?) but they want to put someone in there now as acting and Barab will do.

I disagree with some of the comments in the post. Primarily, I am not confident that Barab will do well at all. Remember, it is a very different thing to be an "activist/critic" than it is to actually "manage/lead/etc". He'll learn that pretty quickly.

Solis and Miller can only give him so much cover. But like anything else, there will be a honeymoon period (for the enforcement zealots) but even that will fade over time.

You think OSHA's name is mud now... just wait."

1) I don't for a second believe that Barab is going to be the next Assistant Secretary, it's just not the history to put someone in this kind of position and then nominate them a couple of months later. Now, it is possible that he may become the head of OSHA after the next Assistant Secretary resigns in 2010-2 (assuming Obama is reelected), after all Assistant Secretaries rarely last 4 years and he could be next in line.

2) That's exactly what they're doing, get someone they know in leadership fast. My concern is this means that the nomination for Assistant Secretary may be a long way off.

I agree that "is a very different thing to be an "activist/critic" than it is to actually "manage/lead/etc."" and that "He'll learn that pretty quickly." But don't forget that he has at least 19 SESers around him, most of whom have a lot of time in the agency, and some of whom know him from his previous time with OSHA. Add that to the fact that Acting Assistant Secretaries never get to make decisions, and I think he'll be fine. Like I said before, don't expect an upheaval in the way we do things.

Finally this:

"Don't forget, while you are bashing the profits made by those evil, disgusting, greedy capitalists that it is the taxes paid on those profits that allow you to do what you do."

WTF? Have I even mentioned the word profit in any of my posts? Have I called anyone an "evil, disgusting, greedy capitalists?" I'm not anti-profit, in fact I love it when my retirement account soars! I do, however, object to one person making a profit when it means another person has to die. And I'm pretty sure that God, in all of his or her forms would agree with me on that one. Don't forget, OSHA isn't here for every company, just those who don't follow the rules.

And just for the record, the US Government only gets 15% of it revenue from corporate profits, and 45% from MY TAXES! And no, I'm not willing to have my taxes reduced if it means more people have to die or become permanently disabled.

Jordan Barab

By now most of us have seen the e-mail from Don Shalhoub announcing Jordan Barab as the Deputy Assistant Secretary (DAS), but here's the text of Don's e-mail:

"We are pleased to announce that Secretary Solis has selected Jordan Barab to be Deputy Assistant Secretary for OSHA and Acting Assistant Secretary, effective Monday, April 13. Jordan comes to us from the House Education and Labor Committee where he is the Senior Labor Policy Advisor for Health and Safety to Chairman George Miller. Prior to that, from 2002 through 2007, Jordan worked at the US Chemical Safety and Hazard Investigation Board.

Many of us will remember Jordan from his first tour with OSHA, where he was Special Assistant to the Assistant Secretary from 1998-2001. Please join me in welcoming Jordan to OSHA."

Just to clarify, someone left a comment that Jordan is the new OSHA Chief, but that is not correct, the head of the agency is the Assistant Secretary (yet to be named), Jordan will be the Deputy Assistant Secretary. The agency has two DASs, one career (currently Don Shalhoub) and one political (as of next week, Jordan Barab), neither of which have to go through confirmation.

I know people are excited by the selection, as am I, but I'm also afraid that idealism is about to run head on into the reality that is a government enforcement agency. I'm not trying to be a naysayer and I certainly don't question his qualifications or doubt his commitment, but I've been around awhile and I've seen people with high ideals come and go, and none of them have had the influence they thought they would.

Does this mean I think he shouldn't try to be an activist? Nope, I hope he remains very much the activist. Does this mean I won't support him? Nope, I'll do what I can within the bounds of my oath (remember the one we all swore to protect the Constitution?). Do I think things will be better than under the previous regime? Abso-freakin'-lutely.

However, I also think we need to temper our expectations a little. Until Congress makes changes to our rulemaking process, until we have adequate staff levels, and until Congress and the White House decide the human lives are more important than profit, we're not going to see a dramatic shift in what we do or the way we do it. Mores the pity.

News Reporters

Remember in one of my previous posts I complained about how OSHA can get slammed, but we can't defend ourselves? Well here's a great example. Today the Buffalo News posted an article about the citations they received for conditions that lead to the death of one of their reporters, Tom Borrelli. Here is the opening paragraph:

"Sixty-two reporters died doing their jobs last year. As far as anyone knows, only one of their employers— The Buffalo News — has been recommended for fines by a federal agency."

What the reporter, Michael Beebe, failed to mention, and maybe even investigate, is that there was only one reporter fatality that OSHA had jurisdiction over! I did a little number crunching from the Newseum's Reporter Memorial website, here's the breakdown:

57 - The number of reporter fatalities that happened in FOREIGN COUNTRIES! 56 of those by violence and one automobile accident (all were under the jurisdiction of the country where the fatality occurred).

3 - The number of reporter fatalities that were automobile related (local police jurisdiction).

1 - The number of reporter fatalities that were helicopter crash related (FAA jurisdiction).

1 - The number of reporter fatalities that were caused by the news organizations failure to protect their employees - OSHA.

You know what's really funny? If you scrubbed the corporate name and profession of Tom Borrelli, gave the story to another news agency, they would write scathing articles on how callous the company was because the company knew of the conditions that the employee was potentially exposed too and still did nothing. They would then editorialize for weeks about how badly the company deserves to be penalized, and how it's a travesty that OSHA doesn't do more. But make this a news organization and it's "Hands off buster!"

I thought this quote was particularly telling of the arrogance that news agencies feel:

"Susan Bennett, a former wire service reporter who serves as a vice president of the Newseum, a tribute to the journalism profession, said she and her staff are not aware of any of the 1,913 reporters on the memorial wall whose employer was cited for their deaths.

“To my knowledge, it doesn’t apply in any case, with any news organization, on the journalists’ memorial,” she said.

She and other journalists said that the OSHA decision breaks dangerous new ground for news organizations and that the thinking could spread to other occupations.

“It’s one thing if you’re a coal-mining company, but I can’t even imagine this,” she said of OSHA’s proposed fines for The News. “That would apply to transit companies that send bus drivers into bad neighborhoods. You can just extrapolate that example into almost any industry.”"

All that Buffalo News has to do is look across town (figuratively) at the Tonawanda News, which in early 2007 was inspected and received citations totalling $57,500. That case actually went before an ALJ (Administrative Law Judge) and we prevailed (final penalty was cut to $26,000, but we won every item).

We've all inspected jobs where the employees puff up their chests and say something like "This is a dangerous job, but that's just the way it is and nothing can make it better." If a reporter is in a combat situation? OK, that's high risk. But to die just climbing a ladder to watch a football game? That's not OK. Ever. What the Buffalo News doesn't seem to understand is that in OSHA's eyes, a persons life doesn't have any less value just because they are a reporter.

A rebuttal to the rebuttal to the rebuttal?

I really do love this stuff. The anonymous anarchist/conspiracy theorist commenter is at it again (but anyone else notice that he/she still hasn't provided any solutions, only criticisms?):

"So it's settled! You favor a "Police State". Remember Big Brother is watching you! (ala the novel "1984")Police states are not interested in answers, they are only interested in POWER! You sound an awful lot like an OSHA Manager to me! Or you will be one in the very near future!"

First, I got the Orwell reference, you really didn't need to explain, it wasn't very subtle, even most 13 year olds would get it.

Second, let me ask the commenter three questions (not that I expect him/her to answer these since he/she won't even answer my first question):

1. How much money did you actually contribute to Joseph McCarthy's campaign?
2. How many aliens do you think there are at Area 51?
3. Who do you think killed Kennedy?
   

Third, I'm not management, and probably never will be. But then I'm guessing you're not management either, people who rant the most about power are usually those who have the greatest yearning for it, yet have the least of it.

Sorry everyone, this was way off topic, I just couldn't let it go. Back to our regularly scheduled programming.

Defending the Interview

I received a few of comments on the interview which I would like to share and rebut.

"Kane and me."

OK, I'm not an English major, so sue me.

"Great job except for one thing. Joe Dear? Please. What he did was a knee jerk reaction to a hostile congress. Roll-out or as its been called Roll-over was a joke and has left a bad taste in the mouths of many. A putrid taste we still experience daily. I'm still a Scannel fan."

I liked Scannel too. I also realize that quite a few of the people who worked directly with him found Joe Dear to be a horses ass, and I certainly understand the downside to what he forced on us, but with the FIRM did he or did he not cause the inspection process to be simplified (especially the documentation)? Did he or did he not ensure that all CSHOs had video cameras and PCs (in some offices laptops)? Personally I like the response/strat teams, I think the old safety vs health was far less effective and at times too much us versus them. I like that the team leaders/AADs had to go out on inspections occasionally, instead of sitting in their office eating donuts all day (I just wish the ADs did too).

You can argue that most of these things would have happened with or without Dear, and it's a legitimate argument, but the fact is it happened under Dear. If nothing else, he shook us up, made us think outside of the box (see next comment).

I love this next comment, it's only tangentially related to safety and health, but I enjoy philosophical debates.

"Well, I've apparently been in OSHA longer than both of you(almost since OSHA started) and I was extremely unimpressed with your answers. I heard classic bureaucratic answers, more regulations, more staff, more money, more more more, etc. i.e. more government is the solution to everything. Neither of you can think outside the box. Thousands of years of civilized earth history prove than more government creates more problems than it solves. I say again "More government creates more problems than it solves!". The workplace can be made much safer! But not with more government unless you want a Police State. So I guess both of you are slow learners too or fail to study history. Granted, you cannot be flexible working inside the confines of a bureaucracy but then that is why OSHA will be worse if it gets bigger as both of you wish. But then one cannot teach an old dog new tricks as they say. By the way I have managed successful businesses over the years and money is not a problem. By creative thinking outside the box, I have made more money in ouside investments than what OSHA gave me. But steady government money can be addictive when compared to the real world of boom and bust finances. I still hang around to watch the "dumb and dumber show" but not for too much more. After a while it ceases to be funny and is no longer entertaining. But then both of your blogs are great! Carry on! Carry on!"

Yes, let's make government smaller and deregulate! After all it's worked so well with the banking industry, AIG, Enron and MCI. No, wait... I know, the weak government in Afghanistan is a success right? No, I guess not. Iraq? I'm sure there was no ethnic cleansing in Bosnia by Serbs, after all no one would take advantage of a weak government would they?

What history shows is not that big governments fail in their missions, it shows that oppressive governments and governments that do not evolve are destined to fail. The United Kingdom was formed over 300 years ago under the Acts of Union 1701, and they have done just fine, despite having a very large bureaucracy. England itself was formed in 927, yes, nine-hundred-twenty-seven, is their government a failure?

Look at our own history, does anyone remember studying the robber barons of the late 1800s, men who exploited everyone around them with no government regulation? Read The Hawks Nest Incident by Dr. Martin Cherniack, how Union Carbide was able to ignore "government regulators" and ended up killing as many as 1,000 workers.

On one level, government is a balance between protection and civil liberties. Where that balance lies is the real question, a government can be large as long it is not allowed to become oppressive. Do we, as a country, want a large OSHA? That's a whole different debate, and I would certainly expect a business owner like our commenter to say no.

First, ask yourself this: Can big government ever be good? Now consider this, the Department of Agriculture has inspectors in every meat packing plant in the country, how often is meat recalled? The answer is rarely, and when it is, it's almost always because the company knew about the problem but still made the conscious choice of money over public health. The USDA does not have food inspectors in every non-meat food processing plant, ever hear of Peanut Corporation of America?

Then there is the example of MSHA. Before WWII over 1,500 miners died every year, then came the Bureau of Mines, then came MSHA, now there are fewer than 70 miners killed every year (see the MSHA Fact Sheet), still too many, but what an improvement. The difference? MSHA inspects every mine at least twice per year, and some types more frequently.

Look at OSHA's own short history. In 1970 there were 17,500 work related fatalities, almost 40 years later that number is about 5,500. Still a lot, but getting better. Obviously OSHA can not claim to be the sole reason for the drop, but we've have certainly contributed.

I believe that the majority of companies out there try to do the right thing, but we're not here for those companies, we're here for the bottom 10% (10%? 20%? 30%? I don't know). Ask the families of the 5,500 people who die from work related injuries every year or the families of the 50,000 people who die from work related illnesses every year.

As another commenter said "Poster #4 should have provided his answers." You may have shared them during reinvention, but not all of us got a chance to hear them, so please provide us with wisdom O' Great One. And don't you dare spout the tired old "deregulate, smaller government, lower taxes" mantra of the US Chamber of Commerce, talk about thinking inside the box.

Interviews

Today Occupational Health and Safety Online posted interview questions they asked both Kane and I. The questions covered a wide range of OSHA issues and you can find our responses here.