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U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND
|ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND
|Room C-5320, Seminar Room B
|Francis Perkins Building
|200 Constitution Avenue, N.W.
William C. Rhoten
United Associate of Journeymen
of the Plumbers
Pipe Fitting Industry
901 Massachusetts Avenue,
Washington D.C. 20001
Dr. Knut Ringen, Chairman
Director, Center to Protect Workers
111 Massachusetts Avenue, N.W.
Washington, D.C. 20001
William J. Smith
Director, Safety and Health
1125 17th Street, N.W.
Stewart C. Burkhammer
Vice President & Manager of Safety
9801 Washingtonian Boulevard
Bernice K. Jenkins
Corporate Compliance Officer
P.O. Box 98100
Kathryn G. Thompson
Kathryn Thompson Development Company
Argonaut Suite 200
Aliso Viejo, California 92656
Commissioner of Labor
State of Iowa
Des Moines, Iowa 50319
John Pompeii, Administrator
Oregon Occupational Safety and Health
Department of Consumer & Business Services
Labor & Industries Building
350 Winter Street,
Salem, Oregon 97310
Diane D. Porter
Assistant Director, NICOSH
Atlanta, Georgia 30333
Ana Maria Osorio
Chief, Division of Environmental &
California Department of Social
5801 Christie Avenue Suite 600
|Workgroup Reports and Discussion
Safety and Health Programs
Health and Safety for Women in Construction
|Construction & Engineering Update
DR. RINGEN: This morning we're going to deal with the reports of the
various work groups. We're going to have an update from the Construction
Engineering Office and we're going to finish early. I would hope that we
could be out of here before 11 o'clock.
We'll start with the Musculoskeletal Disorders work group, and Stu
Burkhammer will handle this one.
MR. BURKHAMMER: The committee has my report.
If you'll go to the second page, or the end of the first page, I guess,
we'll start with the recommendations.
First one is that the M.S.D. workgroup continue to exist and proceed
with its fact-finding process.
Second one is that the public comments regarding the content of the
existing work group document be forwarded to the work group chairman by
September 15th by interested parties; and those of you that are here this
morning that did have some comment yesterday, if you'd leave me your
business cards before you leave, I'll send you a letter describing what
I'd like to have and the date, September 15, when it's due, so you'll have
a record of what we'd like to have.
The third is that the work group have at least one and possibly two
meetings prior to the next full ACCSH committee, and that depends on
basically my schedule and the schedule of the committee members, that the
work group report back to the full ACCSH committee at that time as to the
progress of the work group, which would be our next meeting; and then if
at that time the work group chairman feels that a vote of the full
committee is warranted, a final presentation to the full committee will be
made and forwarded for final vote.
DR. RINGEN: Thank you very much. Any comments?
Again, I want to compliment you all for the work that you've done; and
in spite of the somewhat critical comments that were made yesterday from
many people here.
Very few of the comments that were made contained a great deal of
substance, and I hope that those who had concerns about the process will
provide detailed comments to the work group before September 15. Stu has
said he will send a letter to each of the people who presented here
yesterday, asking for that, asking specifically that you do that.
The one thing that I've thought about, overnight since yesterday, has
to do with the issue of whether we had adequate data in this area, whether
in fact there is a well-defined problem here, because I heard many people
I heard Pete Chaney in particular give a report from the A.G.C. where
they've had an expert group look at the available literature that has been
assembled at our center, and he concluded, or his expert committee
concluded that of the studies that were included in the literature, nine
were I believe fully adequate from the point of view of their expert
Now I don't know which criteria that expert committee used, but if it
used Bradford Hill's criteria for causal inference, which is typically the
criteria that a group like that would use, and if there were nine
epidemiological studies that met all of those criteria, I would say that's
a fairly substantial body of literature; much more so than we have in most
other areas of occupational health or environmental health, where we do
So what I'm going to do in this regard is ask our senior scientific
advisor, who is Dr. Jack Finklea, to pull together an expert group chaired
by the cochairman of our scientific advisory board, who is
Dr. Ralph Frankowski from the University of Texas to review the
literature, and we're also going to ask the A.G.C. to please provide that
expert group with the report that they have done. And we will produce a
review of this literature that is independent, objective and with a great
deal of credibility for presentation to your work group.
MR. BURKHAMMER: Thank you.
DR. RINGEN: Any other comments?
All those in favor of adopting the report that Stu has presented,
please -- do I have a motion, first of all, to adopt it?
MR. MEIER: I'll move that we adopt it.
MR. SMITH: I'll second it.
DR. RINGEN: Okay. Any comments on that? All in favor?
[Chorus of ayes]
DR. RINGEN: Any opposed?
DR. RINGEN: Thank you.
So you'll proceed accordingly. The next work group has to do with
electrical safety. Diane Porter will make the report.
MS. PORTER: We've had one meeting of this workgroup, which was on the
27th of July. We had a representative of employers from Dyna Electric, the
safety manger from there, and the IBEW, and two members from the
We at that meeting went over the draft, and considered and discussed
with Dave Wallace, who is the OSHA safety standards -- the person who
drafted it, actually.
The preproposal, and discussed several issues with respect to the
proposal, and are at this point inclined to pass on to the committee the
consensus of the group that, or that we are pleased with the current draft
as it is.
What they're trying to do is keep it in line with 1910.269 on
maintenance of electrical power, and make sure make sure that the
electrical utilities in 1926 is parallel to that, to that standard.
In our discussion, we discussed issues such as first aid and the
protective clothing issue that's there, and believe that the content of
the current draft is ready for public dissemination, so that was
We're having another meeting of the workgroup to finalize a report to
the committee on the subject, and also to consider the issue of lock out,
tag out. So if there is anybody here who has comments on the lock out, tag
out draft that was sent out by Holly a couple weeks ago, they should get
them to me and if there is anybody else that would like to participate in
the next meeting of the workgroup as we finalize the report to the full
committee on electrical safety, they should get their names to me before
that time as well.
DR. RINGEN: So you're [inaudible] before the next meeting of this
MS. PORTER: That's correct.
DR. RINGEN: At that you're going to deal with both electrical safety
MS. PORTER: Both lock out, tag out and finalizing the electrical safety
DR. RINGEN: And give us a report, a recommendation at the next meeting.
Do we need a motion to adopt that report?
MR. SMITH: So moved.
DR. RINGEN: All in favor?
[Chorus of ayes]
DR. RINGEN: All opposed?
Thank you. Thank you very much.
Safety and Health Programs. Judy Paul chairs that work group, could not
be here today, and Ana Maria Osorio will make the report for the work
MS. OSORIO: Let me just tell you what you're going to get.
First of all, I just want to acknowledge the leadership role that Judy
Paul has taken in this effort; unfortunately, she had a conflict that she
couldn't undo so that I have to give the report on her behalf.
What you're going to get right now is (1) a formal report to ACCSH from
myself, report of the work shop meeting, July 25th and 26th. There's also
two attachments; Attachment A and Attachment B, and there's also one
additional little paragraph, so you should have four documents. So let me
Again, this basically an update, and the primary action that's been
taken by this workgroup was to hold a meeting on July 25th and 26th, and
this was held here at DOL; the purpose of the meeting incorporated various
Number one, to review OSHA's progress to development of its standard on
safety and health programs; two, to assess how applicable any proposed
standard would be specifically to the construction industry; number three,
to communicate to OSHA the concepts and ideas that came out of some of
these stakeholders meetings and discussions, both as a beginning and
throughout the development of any proposed standard.
Those in attendance included Judy, Steve, John Moran, Bill and myself,
and Knute was there as ex officio chairperson of ACCSH.
The OSHA staff included Jim Lapping and
Camille Villanova and various other persons as I'm going to list; and I
really appreciate all the work of Jim and Camille in helping us get some
of the background organizational stuff done.
Other workshop attendees included various representatives from Labor,
Management, and other interested parties. I just have a sampling here of
Attachment A shows all the list of people who formerly attended. So we
tried to cut across a wide range of interest groups to get good discussion
going, which I think did ensue.
The presentations, real briefly, that went on during this meeting at
the bottom of the first page, we did get a briefing on an outline of what
the standard is going to be; the safety and health program standard. And
that was by Martha Kent, Rick Phieffer, and Chappell Pierce. Sorry if I'm
mispronouncing some names.
Basically this draft text is not available yet. Instead, as I said,
they went over what the elements were under consideration, and I've
included that as Attachment B so that people can glance generally over
what the main components are. You can read that at your leisure.
Basically, the presenters stated that the deadline to have a standard
package to the assistant secretary would be approximately June of next
year, and that the standard currently is being planned to include all
industry including construction industry.
The second briefing that occurred during this meeting was a briefing on
the OSHA draft form, OSHA 195, Safety and Health Program Evaluation
It's in a checklist form, and it basically has various components that
have numeric evaluation of a given worksite. And this includes management
leadership and employee involvement, work place analysis, both pro active
and reactive components, hazard and prevention control, both hazard and
emergency response aspects, and safety and health training and
And all the numerical summaries of this checklist will be entered into
the IMIS, the primary tracking system for OSHA.
The effective date of this form going into use out in the field, it was
presented to us as being October 2nd of this year.
The third item that we got, that we were brief on, was just a general
overview of OSHA's cooperative program requirements, specifically for
construction projects; and a review of what some of the existing
evaluation criteria included.
The basic premise for this is for the prior project was that a good
management of worker safety and health protection will translate into
fewer injuries and illnesses, and that there should be some
acknowledgement of some of the good actors in the field.
So they presented I think what's familiar to a lot of people here, the
VPP program and the Star and Merit programs, and the construction safety
excellent demonstration program. That was Stu's.
I've done the next section; it was very unwieldy for me because as I
said, it wasn't until the end of the meeting I was told I was going to
write this up.
So various people sent their comments and different aspects of why the
construction industry is different and what things need to be looked
There weren't a whole bunch of answers, necessarily, but I think a lot
of red flags that one has to look at if they're going to do a center that
has usefulness and can be applied to the construction industry.
So I'm just going to briefly go through all these. There aren't too
Again, one of the basic points that was raised by everybody really in
the group is that there has to be special consideration of the
construction industry, and this is because of the unique characteristics
of this work force, which include multi-employer nature of work sites,
various employers engaged on a site at different times and for different
durations of the given project, and the transitory nature of the
The other area that was very problematic, and I think some of these
people have heard before, to actually delineate what are the different
employer responsibilities when you include all the primaries and the subs
on a given project; and also, maybe thinking about a competent person as a
way to coordinate these respective responsibilities among all the
different entities involved.
A third point was that preplanning is really essential for a
construction type of work site.
The way the presentation was made of the proposed standard, it would be
more applicable to an ongoing, permanent existing work site, so that I
think some acknowledgement needs to be done that a slightly different
approach is needed for construction.
Another topic that elicited quite a bit of comment was, whether or not
to have a written safety plan, and I think -- there wasn't 100 percent
uniformity on this point, but I do think two things came out, and that is
that it does signify by and large employer commitment having some sort of
written plan that there has been some thought to health and safety in a
more systematic manner; and the other thing I think that people brought
out was that's very useful in that you may have a site, but because
employers and employers are going in and out of a given site, having some
sort of plan specific to the site would be very beneficial.
However, there was significant emphasis being placed on having this
plan be brief, manageable and understandable, and I'll talk a little about
training further down.
Going to the next page, the question was: Will the safety and health
program standard apply to all employers or will there be selective
applications of different aspects of the standard based on size.
If so, size needs to be defined, as has been mentioned in previous
meetings of this group; and that is that you may have one or two people
that belong to the prime contractor, but he or she may have various other
subcontractors; and when you include the whole number of people involved,
it would be a quite large work force, not all necessarily under one
So I think there has to be some special consideration of that.
The next part that was a strongly felt view was that employee
participation in such a health and safety program is really essential.
So that there has to be a way, and again this is -- where some of the
creativity has to come into play, as to how the various employers, prime
and subs, can work on a site at various times through different time
periods and yet coordinate exactly how input and how give and take is
being provided, or the opportunity for give and take is being provided to
all the workers.
The next one that was again strongly emphasized was that training is
really critical, and this, the training really came into two aspects.
There were two aspects of the training.
One was general safety and health training which would be going on,
maybe employer based, but also having a little more specific training for
the given site that's underway, that's currently being used. And that how
can one coordinate such a site specific training?
These are questions we didn't necessarily have answers for but need to
And the other thing I think that was important is that if training at a
prior site is to be accepted for total or partial fulfillment of the
general safety and health training, what kind of criteria can one use to
verify that yes, indeed, adequate training was being provided?
The next three points deal with record keeping. One is retention issue;
and that is, since there are limitations on an employer's obligation to
retain a record for very short-term employees, how will one evaluate
whether these work sites safety and health plans are working? Because the
records aren't going to be retained.
There was some discussion of perhaps giving copies of employees'
records, copies of their records so that when they leave a certain site or
certain employer and they go on, that will be retained with them. But
again, more discussion needs to be given to that topic.
The other thing is coverage. If record keeping exemption is to include
employers with 20 or fewer employees, as is being discussed as stated in
one of the presentations that day, then again the question of what is size
at a construction site needs to come into play, and again some thinking
needs to go into that.
The other very important consideration, and this was stressed a lot by
some of the industry contractor's reps out there, that access to records.
Some of the primaries stated they have been trying to get records and
injury and illness information for some of their subs, but they're just
not accessible to them.
So what kind of coordination can be suggested by such a standard?
And again perhaps using a site specific competent person who make
coordinate some of these activities might be of help.
The next one is the part about, there's a large task force that
currently is dealing with the standard, the proposed safety and health
program standard, and the people presented to us admitted "Oh, I don't
know, it's 50, 60 people, it's pretty big; and yet there isn't anybody on
that task force with experience in the construction industry.
So one of the recommendations I'll get to is that we strongly encourage
somebody with construction beyond that committee.
There also was discussion about whether it should be a special section
on construction in a general industry-kind of standard or whether it
should be a separate construction standard. And I'll get to the
recommendations in a second.
I think the committee, because this meeting just happened two weeks ago
and our chairperson isn't around, we haven't gelled as a group yet and
really made concrete decisions, but I think the group is leaning toward
consideration of a separate standard.
But again I want to put that with a little asterisk, because again it
would be nice to have the chairperson here so we can all talk about
The next point again was felt to be a very important one. Whatever
standard results, a standalone construction or as part of a general
standard, it's very important for it to be concise and user-friendly; and
there was emphasis on adequate training and guidance and/or reference
materials for both employers and employees in order for the standard to be
understood and to be applied and be effective.
A lot of people felt this was especially true because of the small
employer situation that is seen in the construction industry.
The next point -- I'm almost through -- is, what will be the
performance criteria when somebody is out in the field evaluating the
adequacy of such a safety and health program?
And also the site specific safety and health plan.
The form that was presented that I alluded to in the briefing, the 195,
I think was good in that it contained general components that one would
want to have assessed in such an evaluation. But upon reading the specific
details, the work group members did not feel that as it stands right now
it could be applied to construction sites.
So one of the recommendations I'm making is that they hold off in
applying it to the construction industry until modification can be made to
So basically what I came down to is four recommendations, and I just
want to state that there may be more recommendations that are coming out
of this group; but again without our chairperson here, without having a
post-meeting meeting, so to speak, it was hard to have any further
discussion go on.
So first of all, we strongly recommend that a person with experience in
the construction industry be added to the current OSHA safety and health
program standard task force.
We feel it's imperative, and it should be done sooner rather than
Number two, because of the unique aspects of the construction industry
as noted earlier, it's essential, we feel, that either a separate section
on construction be included in the general standard, or that a separate
construction standard be developed.
As I said, I think the work group is leaning toward the latter, but
again I want to hedge on that until we can have our post meeting.
The use of the draft OSHA 195 checklist form, we feel is not currently
suited to the construction industry; we strongly recommend that this form
not be used until some appropriate modifications for construction work
site can be made.
And some of the work group chairs are actually reviewing that, and
perhaps by the next meeting we'll have some concrete examples to
Again, I anticipate at a minimum having a conference call with all the
work group members together, and then in a systematic fashion going over
the large amount of information that was provided to us, and possibly a
meeting, another full meeting before the next ACCSH meeting.
Lastly, on a personal note, I just want to say thanks to everybody who
participated. I thought it was a pretty lively one and a half days, and
there was a lot of really good input and energy that came out of the
meeting. So I am hoping that something good will come out of it.
Any general comments?
Oh, excuse me, there's one more thing. The last page here was something
that Judy Paul -- we had been talking about it and such, and this was one
thing that Judy Paul wanted to have included here.
So just briefly, the recommendation is to be helpful to some of the
small contractors unions, compliance officers, et cetera, is to prepare a
non-mandatory guide or pamphlet for how to develop a safety program.
And that this guide would not be a draft standard, but really using
existing models such as they already are being applied in the work place,
in the construction work places.
And that the model or this training guide, I guess, would be specific
in that it would include the small contractor, multi-employee sites and
all the different aspects that I've mentioned in the body of the
I think that's it.
DR. RINGEN: Is it the intent that the work group will develop this
MS. OSORIO: Well, like I said, I kind of feel, I feel like a shadow
DR. RINGEN: Or is that a recommendation that OSHA should do -- from the
work group that OSHA should develop this guide?
MS. OSORIO: Like I said, I just got this this morning, this last piece
from Judy, and I have not had the opportunity to talk to her about this;
so I would have to punt at this point.
Again, she is the chairperson. I'm trying to do the best I can to
describe her feelings on this, but I really don't know.
[Remark off mike]
DR. RINGEN: Any comments? Bill, you were at the meeting.
MR. RHOTEN: I think you covered it very well. I think you did an
outstanding job. You got all the bases covered right there.
DR. RINGEN: At least what I saw from the meeting was quite lively. Very
interesting. You did a great job of pulling together a lot of people, and
did get quite a bit of information.
But it's your intent that we'll have a more detailed report based on
all the information collected by the next meeting?
MS. OSORIO: The main thing is, two weeks ago, things haven't gelled
yet; and really, there's a lot of notes everybody has, so I think we'll
have a little pithier kind of review for the next -- go ahead.
MR. RHOTEN: The only thing that I would emphasize that is already in
the report is that I think it's imperative to get somebody on that
committee that's putting the standard together with OSHA, that in fact has
some knowledge of construction.
I was actually amazed to hear that there was nobody there when the
question was asked, because they're going on with this and if we're going
to have it by June of next year, it surprises me that they haven't, you
know, somebody hasn't already thought of that.
It's like they're going along, ignoring the construction industry. So I
would hope that OSHA can respond to that quickly.
DR. RINGEN: Well, I heard Rick Phieffer, who more or less in charge of
this task force, I think, say specifically that he wanted to help with the
construction part, because they didn't know how to deal with that.
MR. BROWN: The task force was initially put together to look at general
industry, and Bruce has had some discussions, and I'm sure that there will
be some further involvement.
DR. RINGEN: Any other comments? I think it's moving along well.
Do we have a motion to adopt this report?
MR. MEIER: I move.
DR. RINGEN: Do you have a second?
MR. RHOTEN: Second.
DR. RINGEN: Do we have any discussion of that?
DR. RINGEN: All in favor?
[Chorus of ayes.]
DR. RINGEN: Any opposed?
DR. RINGEN: Thank you, very much.
The final report is the health and safety program, or the Health and
Safety for Women in Construction. Now, Lauren Sugerman is not here today;
and who's going to give that report?
MS. OSORIO: Do you want me to just say a couple of words?
DR. RINGEN: Yes.
MS. OSORIO: Again, I thought there was going to be a report from her,
but basically we actually had a conference call and we've been exchanging
information and such, and what is being compiled now is sort of an issue
memo relating some of the aspects of gender-based problems that are in the
construction work site.
We're also pulling together different key bits of literature and also
reviewing some of the actual data. It's a long story, but some of the
documentation for construction workers with respect to percentage that are
women vary quite a bit, because as you know, the construction industry is
So depending from what source and from what month; what is that, a year
average or whether you're taking the peak or the low, so we're trying to
get some real numbers from the National Center for Health Statistics. And
hopefully this report will be in a draft form before the next meeting, and
then we'll have something more substantial to present to you. But it's
taking quite a bit of time.
Also, there's a review of the standards that do deal with gender and
DR. RINGEN: I guess we'll get a full report on that also, by the next
MS. OSORIO: Yes, I'm sorry. I didn't realize there wasn't going to be a
DR. RINGEN: All right, that takes care of all of our work group
reports, unless there are any others that have anything to report.
Construction Engineering office update, Bruce has not showed up. Are
you going to do that, Tony?
CONSTRUCTION ENGINEERING UPDATE
MR. BROWN: Yes. Tony Brown with the Office of Construction Engineering,
and I represent Bruce. I talked to him yesterday and he wasn't feeling too
good. He said he may not be here; if he was, it might be a little bit
Like so many of the groups here, this will probably be a short report.
The Construction Office, we haven't had any additional staff, as everyone
else knows, so limited work.
Primarily the Engineering Group has been involved in, unfortunately,
several other accidents, investigations of a pharmaceutical plant in Lodi,
New Jersey there were five fatalities; an airport hangar collapse in White
Plains, New York. Another parking garage collapse at the Newark Airport. A
crane accident in Buffalo, New York.
And we're working with EPA on an explosion in Mariette, Pennsylvania,
in which two workers were killed. It was a cogeneration plant. That's kind
of, I won't say a new effort, but we're working real close with EPA on
In addition, the office and the building and construction trades are
working on a video for construction safety primarily emphasizing the four
That is I'd say about 75 percent finished, and we should see kind of a
draft video here in a few weeks.
We continue working with different offices within the agency, the
industry and labor on various construction issues as they come up. And
especially with the federal/state operations right now in all of the
cooperative programs, some were mentioned here: Construction excellence
program, and a number of the area offices have tried some pilot projects
and which we're working with them on.
We had two student engineers in for a few weeks this summer, and
they're putting together -- Bill, you might be interested in this; putting
together a report, a survey on crane accidents for the last ten years.
They've done quite well. They're two industrial engineers from Puerto
Rico and they've taken this project very serious, and come up with some
pretty interesting and unique aspects of looking at the crane
Again, we're just continuing to work as normal, and fortunately no real
catastrophes yet, but we are getting a little short handed; but we're
doing our best.
DR. RINGEN: Thank you very much.
Any comments, any questions for Tony?
MR. SMITH: I don't know, you're not from the engineering side, no.
That parking garage that collapsed, was that a structural collapse, do
MR. BROWN: Yes.
MR. SMITH: The same thing we talked the other day about, unsecured iron
and stuff like that?
MR. BROWN: I think it was a prefab section. Concrete.
MR. SMITH: I'd be interested to see what they work out with that study
for the ten years, because Ontario, Canada, it's probably the closest we
have to real statistics.
Just the province of Ontario, and locally it's hard to get something
and that's good; and you know the effort going on with the certification
of crane operators from the industry, and hopefully we can link the
industry and the government together in some case, so that would be good.
DR. RINGEN: Ellen Rozwowski. Use a microphone, please, and identify
MS. ROZWOWSKI: Tony and I didn't have a chance to confer this morning
on the report --
DR. RINGEN: This is Ellen Rozwowski from --
MS. ROZWOWSKI: From the Office of Construction and Engineering.
But I did want to mention two things that the office is currently
office is also currently working on. One is is that I participated along
with Stu and a number of other health and safety professionals in
reviewing NIOSH's grant program in construction.
I think this was a very, very excellent opportunity for OSHA to become
very much more familiar with the sorts of things that NIOSH is doing, and
it will actually lay the ground work for better coordination and
communication between the two groups working in construction.
So I'm very, very excited about the work that was done and the work
that we'll be able to do in the future on this.
The other thing that I have been involved with and that Bruce has been
reporting to the group on is the National Science and Technology Council
subcommittee on Construction and Building.
That work is ongoing, that group is meeting about monthly, and so what
is happening is that pursuant to the seven goals for the subcommittee, two
of which are very health and safety connected, one of which is a 50
percent reduction in worker illnesses and injuries in construction.
We have come up with eight work areas, one of which is human factors,
and are coming up with what are called road maps to accomplishing those
goals, which will involve activities by a wide range of government
agencies; and the whole point of this is to really make the federal
program in construction very focused on the real problems like safety and
construction and to actually get federal research and federal activities
aligned in a more comprehensive fashion.
So that work is actually gelling into some real road maps and some
activities that will actually address health and safety programs.
I think health and safety programs are going to be a big part of this,
and I have also been in touch with the Federal Facilities Council, which
is another interagency group, and they are very, very interested in
improving health and safety programs on federally-funded construction
site. So that's another linkage that we're pursuing in terms of leveraging
health and safety programs.
So as I say, we've been doing a little bit more outreach activity in
the past couple of months, and so the office would be pursuing those types
of activities in the future.
VOICE: Thank you very much. Any questions for Ellen, by the way?
MR. BURKHAMMER: I'll add a little bit. It was pretty interesting to the
panel that Ellen and I and Joe Adam participated in, we were the only
three non-M.D., PH.Ds in the whole joint.
VOICE: That was in the NIOSH review.
MR. BURKHAMMER: That was in the NIOSH review.
We listened to 40, give or take, grantees that had received -- and I
won't go into the whole thing, because the report just went to Linda
Rosenstock, and -- VOICE: We may ask for a detailed report on this at our
MR. BURKHAMMER: I'm sure Diane would be kind enough to do it. But it
was pretty interesting. Some of the people that are getting grants to do
construction studies didn't have a clue what construction was, or I think
what they were doing. And I'll just relate one, because it was kind of the
highlight of the whole panel.
There was an individual, a Ph.D., who was doing a study on a mannequin
and aerosol spray cans, and he had invented a little wind tunnel and he's
spray these spray cans, and it would go and hit this mannequin; this
mannequin would tell this guy what the spray was affecting the
And I tried to explain to the guy that basically in construction we're
trying to phase out aerosol cans, but he didn't seem to get the drift.
That was kind of out of the thing, but it was very interesting that a
lot of these people are really doing some terrific research in
construction. And a lot of those studies could really benefit our industry
if there was some way to get them to us, and that was a mechanism that we
addressed as a panel.
So hopefully in the next six months to a year, when NIOSH implements
some of these recommendations that this panel made, we'll see more of this
information coming out of NIOSH, because some of these studies are
When you sit there and listen to what these people are doing, you
wonder "Why can't we get this information, because it would be of great
help to us." And it would be a great help to a lot of the work groups that
are currently doing some of the things that we're doing.
DR. RINGEN: Exciting parties that we now have the large national
construction safety and health research program for the first time in the
U.S. And that's developing pretty well, I think.
Any other comments?
I have a couple of things on Committee Business.
The first is that we're going to have two new issues come up, not
immediately but in the future. One is scaffolds, other is commercial
diving, and I suspect there will be other very specific safety-related
issues that will come up.
What I'm going to suggest is that we take this committee that we have
used for electrical safety, that Diane is chairing.
If she's willing to do that, and make that into sort of a general work
group. Make that sort of a general work group dealing with specific safety
issues like that as they come up, and change the membership of it, as
needed, when those things come up.
Is that acceptable? It's a practical way of organizing it, rather than
creating work, work groups.
The second thing is, we've tentatively scheduled our -- we have not
tentatively, we've definitely scheduled our next meeting for October 24
and 25, and that is tentatively scheduled to be held in Atlanta; but that
depends on OSHA's budgetary situation and so on, and we won't know about
that until later. Right?
We've asked that it be held in Atlanta so that we have the opportunity
to review the field office operation up there, one of your new
experimental -- not experimental, but the kind of field operations that
you're going to have in the future. That was the idea of going down
I have a number of different issues that I would like to have this
committee look at and discuss at its future meetings, and I've identified
some of them. Whether all of those are on the agenda for the next one or
if we delay some of them, is a matter for discussion; but issues that I've
identified is first of all the SENRAC committee, since it will have
concluded its discussions, we would like to get a report from some of the
principal people at that, and I know Jerry's going to take care of that at
our next meeting, both with regard to their findings and with regard to
how that process can work, the negotiated rulemaking process works and can
work better, perhaps, in the future.
The second issue is the one that Stu raised and Ellen raised: I would
like to see this committee get a report on the review of the NIOSH
I think we would all benefit from that, and further integrate more the
activities that go on at OSHA and at NIOSH.
I heard some of the review committee members suggest that perhaps this
committee could do more in the way of providing assistance to the NIOSH
research program and review some of the priorities and so on that are
The third issue that we have on our agenda and that we have not dealt
with yet, and that maybe we'll get to by the next meeting is the whole
issue of international harmonization of standards under GATT and the
International Standards Organization; I think Frank Froydna at some future
date will talk to us about that.
That's going to be a very important change in the way that OSHA does
business in the future; I'm sure in all federal agencies.
The fourth issue is, the consideration by DOE that OSHA takes over.
It's the regulation of safety and health on its sites; an oversight of the
safety and health.
A lot of what DOE is doing now is construction, particularly
de-construction, decontamination and environmental remediation. And if the
process of reaching agreement between OSHA and DOE has moved far enough so
that we know how that's going to be proposed, it would be interesting to
hear about that.
Finally the fifth issue, which is very important and it relates to the
task force at the White House that Ellen talked about; and that is
industry importance and what it should be.
The White House Task Force thinks that we ought to be able to operate
this industry at about 50 percent of the injuries and fatalities that we
have at the present time. That's the goal.
We've looked at that at our center and we think we ought to be able to
operate at about 80 percent below where we are at the present time.
Part of the problem is, when we talk about performance and setting
performance goals for an industry, is that we've got to have some way of
measuring that performance than is better than at present; and we've had
A group from the Bureau of Labor Statistics, the Bureau of the Census
of the Department of Commerce, NIOSH, and the data people at our own
center; Earl Pollock, specifically, who is somewhat of an expert in this
field, look at improving national data.
Look at first of all how to get a more accurate count of fatalities,
although we think of a good count of fatalities now; but also of serious
injuries and recordable incidents in the industry; and secondly to get a
How many workers do we have? How much do they work, and so on, so that
we can establish accurate rates.
We think -- that huge a gap, depends largely on how you define the
denominator. So there are a lot of those issues that we should have
consideration of here as that goes forward.
Because particularly when you think of safety and health program
standards and program guidelines, you should also be able to say what an
employer or an employee should expect from an employer, when they are
operating according to that standard.
That standard, those safety and health programs, should achieve some
performance in terms of safety and health that should be measurable and
that we should be able to hold people accountable to.
So those are issues that I've identified. You all may have others that
we ought to address, or you may think those are not the most important
issues that we should address. Is there any discussion of this? Hal.
MR. MEIER: I think the thing that garbages a lot of the statistics up,
there's a veritable explosion of independent contractors out there, and
usually it's a wife or a family member that isn't aware of any kind of
reporting, and I think it's going to continue and be a larger portion of
the work force in general and the construction in particular.
I think there are a lot of forces driving this.
DR. RINGEN: Well, as near as we can tell, the number of independent
contractors has gone from about 700,000 in 1974 to maybe 1.8 million right
now. But that's a very unclear number, and probably numbers somewhere in
the neighborhood of 25 percent of the work force.
MR. MEIER: We register them in Iowa, and the explosion is there, and we
know we aren't even approaching doing an 100 percent job.
DR. RINGEN: Any other questions? Issues?
MR. SMITH: A while ago, when Joe Dear gave a presentation, he talked
about the fact that the government is looking at OSHA and OSHA is
changing; and one of the avenues was the fact of outdated regulations or
standards such as the OSHA poster; and they were looking at the fact
instead of fining somebody for not having it, we're going to look at
giving them one, kind of a deal.
At that point we had mentioned the fact that maybe this committee would
be able to work with OSHA, too, and look at the standards in construction
and look at the penalties for not complying with standard of regulation,
and seeing where we can kind of make recommendations also, which is what
Congress wants everybody to do; re-look at the way OSHA runs its
So I think what we ought to do in some time is -- and Steve, I don't know if this is a case or not, but, because I
was just asking Stu, and I know it's probably all over the board, but
there's not a flat citation checklist for a certain violation. I think the
numbers can be whatever the regional administrator wants it to be in a
sense of a penalty.
MR. JONES: There's not a precise formula.
MR. SMITH: But I'm sure there's something out there that we could
probably work with, don't you think, in that area? And what I'd like to
find out is, if there's a possibility to do that and maybe even have some
kind of a subgroup, a workgroup of labor/management together looking at
the current standards the way they exist, and looking at possibly an
average of the current citations or violations in saying, "This is
You shouldn't give a $500 penalty for the fact that the guy had a
plastic bucket versus a galvanized bucket when currently there are
standards out there and new products that say that you can use these
containers in construction sites."
Some of those things I think we ought to look at that I think would
benefit OSHA if they came from a recommendation of a work group such as
labor management, saying "Here's a recommendation. Whether you want to
look at it or not is up to you, but at least we did look at it.
DR. RINGEN: You asked about this at the last meeting when Bruce was
here. I talked to Bruce about the issue before this meeting, a couple of
weeks ago, and asked him what he was doing about that; and I had expected
a report from him as part of his report today. He was going to put that
together for us.
So we'll probably have that by the next meeting, and maybe at that time
we should consider setting up a separate work group to consider the
MR. SMITH: Case in point is, I was talking to an individual yesterday
after the meeting, and like he said, the bad part about it is, a small
employer was out there and he was painting the ground, marking for utility
lines with paint.
And he had an MSDS program in effect, he had training there, and he had
MSDSes for basically everything but that particular product he didn't have
an MSDS for, just that aerosol can, and that particular product.
Now, in that sense he's still got a violation of citation, and to me
that's a little ludicrous, and that's why Congress bangs on OSHA heavily.
And we still have to do it to a certain extent because you can't let them
off on this because then you let them off on the next one and you let them
off on the next one, and there might be some really hazardous chemical
that you don't want to let him off on because he does not have the MSDS
But as we all know in this real world of trying to use common sense, I
mean not having an MSDS for an aerosol paint can is probably not going to
be the worst thing in the world you can do. And it may not warrant a
citation, violation or penalty at that point. But we may be looking at
some other highly hazardous chemicals that are, and put it in that
DR. RINGEN: I guess the aerosol cans are still used, too. We'll get the
mannequin out there.
Put him out on the highway.
MR. SMITH: I'll tell you, another avenue -- I was talking about the
independent contractors. Another avenue that was discussed was the fact
that -- and it's talked about small employers not having the ability or
the access to OSHA or even being familiar with OSHA, not even knowing what
1926 means, other than the year 1926 in that sense.
One of the discussions, we were talking about, which might be a good
avenue as a recommendation of a small work group was that, and it may be
hard to do it, even; because it's two different agencies, and it's state
plans and the whole nine yards; but just food for thought because that's
why we're here, to think about how to correct problems; is that it was a
good idea coming from the individual that said that "When anybody applies
for a license to be a contractor, whether it's an individual or whether
it's a corporation or an incorporation, when they apply for a license at
licensing and regulation of each state, part of the application process
should be that they bring a certification that they've been through an
OSHA ten hour awareness course.
MR. MEIER: They're exempt from the Act.
MR. SMITH: Who's exempt?
MR. MEIER: Independent. Self-employed.
MR. SMITH: So the independent contractor then is exempt, so therefore
the small business guy is getting around the system anyway, and don't want
to be part of the system.
MR. JONES: The employees of a contractor -- I'm just trying to say,
it's not that the contractors themselves are exempt, it's that
self-employed individuals are exempt, and the employees of a contractor
would be covered by the OSHA statute and regulations.
MR. SMITH: Okay, but here's, I guess, our problem: Is that it seems
like the argument from small business is that we don't know about OSHA, we
can't get to OSHA, we can't get consulting services.
They're not big enough, they don't have enough resources. That's the
argument we hear from the business side, is small business can't use OSHA
because there's not enough resources.
Well, it's sad to say in that case, and maybe there's a regulation
problem or a real problem because they are exempt. But it's sad to think
that part of an application process of getting a license to be a
contractor, whether you're employing yourself or whether you're eventually
going to have one or two employees behind you, is the fact that that
individual, if he's going to work for himself and be his own boss, he
still should understand at least a minimum of what OSHA is.
And it seems like that would be a good part of the application process,
just to get the guy in the door to apply for a license.
Now if it can't happen, that's okay; but it was good food for thought.
In the avenue of, from here on out in the future, making sure that every
little business man that applies for a new license as a contractor for
construction at least has part of the application; that he's been through
a one day OSHA awareness course somewhere.
DR. RINGEN: Steve, the issue of independent, self-employed people is a
very gray area. There is I guess under the National Labor Relations Act
criteria established, and the IRS has developed more criteria and also a
training program now for its agents to look at -- I think that there are
20 criteria that have to be met in order for you to be defined as a
When OSHA inspects, does it ever look at this issue, about whether in
fact people are legitimately self-employed?
MR. JONES: That has come up. There has been litigation within the last
couple of years where a case out in California, it was found that certain
people who had been set up as independent contractors were in fact
employees; and therefore that they were subject to OSHA liability.
MR. MEIER: That complicates your inspection. If you have to tear down
that corporate veil and prove independent contractor, you've kept your
inspections down to 1 in 10 that you could have made without -- usually
you just walk away. And those independents, instead of hiring somebody,
put on another independent contractor.
It doesn't cost much to get registered as an independent; and that gets
rid of all the EEO and ADA and prevailing wages. It's just the whole net
of labor protective legislation --
MR. SMITH: I understand. And like I said,--
MR. MEIER: -- down. How do you pay workers comp?
MR. SMITH: -- it was good food for thought to the extent that every new
little contractor coming in that business, which they are fly by nights,
and they might work out of a pickup truck off the tailgate kind of a
But everybody out there starts out that way in most cases; unless
you're born into an organization or you marry into one that's there, and
then you take it over.
But basically, from here on out, the big businesses are established.
But the little ones that will be our future big businesses start out as
mom and pop.
But it's sad to think that a part of the application process wouldn't
be that somehow they would have to go through a course to understand what
OSHA is and what the laws are, the rules are, that they're going to be
working under as well as any employees that they may hire in the future.
And it's sad to think that we can't make --
MR. MEIER: There's bigger employees going through this, discharging
their employees and then going to Manpower or some employment service for
temporaries and part time people and hiring their same people back through
a broker, employee broker, to escape all the labor legislation.
There's an explosion going on out there, whether you know it. What, 26
million people working out of their homes, I think now, at least part
time. And that, OSHA doesn't touch that.
If you think OSHA is disliked now, wait until you knock on somebody's
house and say you want to peek inside of it.
MR. SMITH: Well, I thought it was a good idea to start with.
MR. MEIER: There's an explosion of employment in those areas going on
out there right now.
MR. JONES: It's something that probably at the state or some other
local or professional level would be a very useful initiative because of
the licensing authority the states or other jurisdictions have; but OSHA,
because our statutory mandate is very much focused on the
employer-employee relationship, there would have to be legislation to
enable us to take the kind of action that you're suggesting.
MR. SMITH: Yes. Thanks.
DR. RINGEN: Any other issues?
MR. RHOTEN: I'd just comment that I think that's a good idea, and I
don't think we should stop it there.
Maybe it's a long term idea. Maybe it's a five or ten year program or,
I think to keep that thought in mind here is not a bad idea.
All the people in our industry that go into business, in fact, take
skill training, they'd be basically already a journeyman when they open up
a shop, most of them anyway. Plumbing shops aren't opened up by
electricians, or people out of college.
So they've already got some knowledge of OSHA generally, I think, at
least in our industry anyway. So for them to say that they don't know
anything about OSHA, at least a mechanical-plumbing contractor, if he's a
craftsman, he knows something about OSHA already. For him to say he
doesn't is not really the truth.
But I think that idea that you have is a good one, and I think we ought
to think about at least endorsing some kind of concept like that out of
here; and maybe there are some states that can pick up the legislation,
get it done; because it's a good idea.
MR. SMITH: It was given to me by one of the participants in the
audience, so. Like I said, that's why we're here. I think it's a good
start, because the small guy is a future big guy, hopefully. At least it
lays a foundation for him.
DR. RINGEN: Oh, there's no doubt that there are a lot of legitimate
owner-operators who function in this industry and always have. But most of
the growth that we're seeing is a misclassification, mainly, of people to
get around employment standards and the costs.
MR. POMPEI: The nice thing again about state plans, not the federal
bureaucracy, is in a state such as Oregon, we delineate between a sole
proprietor and independent contractors.
My law does not just have an employer/employee relationship; the other
parts of the test is who has control and remuneration. So if we have 15
independents on the roof, we do what you say, Al, we cite everybody and
throw out the ones that don't count. Then we'll find somebody that's
controlling the site.
That's different from a sole proprietor. He or she goes up on the roof
by themselves and doesn't impact anybody. Independents will eventually
impact other people regarding occupational health and safety, because if
they have a problem they may kill or maim or hurt somebody else.
So again, we've expanded the scope of the law in Oregon to have
remuneration and direct control. And believe me, you'll be able to find an
individual when you throw them all out; and as far as your other system
goes with the temporaries, I think the temporary agencies are asking for a
lot of trouble.
I really think this is a bad system for the temps. If they're going to
get worker compensation, then they have to have training and education of
these people they're sending in to harm's way, so you have the possibility
there, in an OSHA involvement, to have two citations: One for the
temporary agency and one for the employer who's having direct control.
MR. MEIER: Whose worker's comp is he under? His real employer that
refers him to this job, or the controlling employer that will --
MR. POMPEI: Most of the temps, the worker comp is with the temporary
agency; but the employer is directing and controlling the individual in
the work site. So you have double jeopardy there, as far as Oregon OSHA
law is concerned.
MR. MEIER: You don't catch them all; if you have 209 roofers on a roof,
all claiming that they're independents, why that's easy. You know, you
cite them all.
But with our contract we can get to the one that claim that they're
exempt if they aren't registered. But it's still a problem, and you just
scratch the surface. I've got one guy running the whole state, or had in
the past -- not there anymore; but it's a problem and there is an
explosion of these people coming on. You register thousands every year,
MR. POMPEI: My statement was that, in states, you have the ability to
expand definitions and laws as opposed to the federal, but I think you'll
see some state OSHA plans having the authority to look at independents and
temporary agencies. I just brought that up.
DR. RINGEN: Are you going to comment on this?
MR. BURKHAMMER: Yes. Another issue that goes along with this is labor
brokering. A lot of your nuclear clients are hiring contractors and the
contractors are brokering labor to the owners, and the owners are
directing all the work operations in their plant so the crafts people get
paid by the company that's broking them. But they get all their work
direction and all their tasks and work order and everything from the
So I think that's a twofold problem; one, it's a record keeping problem
because if the guy gets hurt, and he goes on who's OSHA 200 log; does he
go onto paying employer or does he go on to controlling employer? We've
debated this heavily in the record keeping committee.
And the other one is, if a compliance officer goes into a plant, which
on the nuclear site is extremely difficult to get into them anyway; and
some of them are very good at making the compliance officer go through the
week's training and go through all the testing and the psycho testing and
everything before they even let him on the site; but when he finally does
get in there, who does he cite?
Does he cite the paying employer or the controlling employer?
And that's a major issue that I think OSHA needs to look at, because
right now it's an extreme gray area of what to do. And it's something
that's becoming more and more prevalent in operating plants, because in
not only nuclear but now fossil, your trash burners, a lot of your
governmental agencies are broking out to contractors, labor; but yet their
maintenance people are running the show.
So pretty soon a lot of contractors are just going to be pass-through
contractors, and they're being paid to supply labor.
MR. MEIER: Manpower is now the largest employer in the United
DR. RINGEN: As you said, the record keeping work group has looked at
this issue in the past for many years, I think. In fact, you had
discussions of it. And I imagine the Labor Department has a lot of stuff
going on, thinking about this issue, as well.
Especially the Office of the New American Workplace, or whatever it's
But we may be able to get a report from the Department of Labor about
that and consider taking some additional steps to make some
recommendations in that area.
MR. BURKHAMMER: One work group report you didn't ask for was the record
keeping work group, and I know we haven't done anything lately, but I am
pleased to report that the total package has finally cleared OSHA and went
to OMB. So all these years, we finally have moved forward.
DR. RINGEN: You just persist, Stu. You keep that in mind when you think
of your musculoskeletal activity.
MR. BURKHAMMER: I may revert back to my high school days and be a
DR. RINGEN: Any other issues, comments?
Tentatively, I would like to see if we can schedule, not the next
meeting but the meeting thereafter in January.
It's a little difficult, because I don't have my schedule for January
MR. BURKHAMMER: Is this October date locked? Is there any potential of
DR. RINGEN: The October date is locked, pretty much.
MR. BURKHAMMER: Do we have to go to Atlanta?
DR. RINGEN: No, we don't have to go to Atlanta; I'm not sure that we
will go to Atlanta.
I see Holly is shaking her head. She doesn't think we're going.
MS. OSORIO: Why go to Atlanta?
DR. RINGEN: It was to see one of these new field office operations.
DR. RINGEN: We will look into that issue.
So those who want to schedule work groups in connection with the next
meeting should do it in the afternoon. No, you can do it in the afternoon
of the 24th.
If we're not going to be in Atlanta, we can certainly handle the work
groups in the afternoon of the first day, like we've done before, so we
don't take up three days of committee members' time unnecessarily.
MR. BURKHAMMER: Yes, but one of the problems of work groups and being
in Atlanta is that a lot of your ex officio members won't be in
DR. RINGEN: No, if we're not going to be in Atlanta.
MR. BURKHAMMER: Oh, if we're not.
DR. RINGEN: Then we will be able to schedule it. So it will either be
in the afternoon of the 23rd if we are in Atlanta, or else if we're not in
Atlanta, we'll do it on the afternoon of the 24th.
Since I'm getting vibes from Holly here that we probably won't be in
Atlanta, we will probably end up--
MS. NELSON: It's just the uncertainties of the budget that --
DR. RINGEN: To make life easy, even that you can't make a commitment
about that at this point in time, why don't we just change that meeting to
Washington and then we'll see if we can do another one of these field
things at a later date when you know for sure your situation. Okay? That
makes it easy for everybody.
MR. BURKHAMMER: So what groups will be in the afternoon of the
DR. RINGEN: So the meeting on the 24th and 25th will be here in
Washington; work groups will be in the afternoon of the 24th.
MR. MEIER: Do you think things are going to get better over there, with
DR. RINGEN: By then they'll be on a continuing resolution.
VOICE: At a nice low level.
DR. RINGEN: Well, I don't know about that yet.
January. How does the week of January 22nd look for people?
MR. BURKHAMMER: Don't we need to address the five or six outgoing
members? Are we going to have a committee in October?
DR. RINGEN: I assume we will. I haven't heard anything to the contrary;
that's OSHA's business.
MR. BURKHAMMER: Yes, but if nobody shows up.
DR. RINGEN: We don't have a committee; then we will have to cancel the
MR. JONES: As we did previously, current members would be able, at the
Agency's discretion, to remain as members in order to maintain the
operation of the committee.
We anticipate that we will have a fully functioning committee; but that
is our fall back.
DR. RINGEN: So in one form or another we will have the committees.
If we do it on the Tuesday and Wednesday, which seems to be the
preference of most people, that would be the 23rd and 24th. How are those
dates for you all here?
Obviously, with those dates, we have to have some flexibility because
none of us are sure about January yet. But tentatively we'll suggest those
Is there any other business here? We have the business, just one issue
remaining that's an enjoyable issue, and that is that Al Meier is retired
as the labor commissioner after a good tenure in Iowa, and he has served
as a member of this committee since 1984, the longest running member, I
think, at this point in time, if I'm not mistaken.
And I think everybody on this committee appreciates very much your
contributions to it, and really dedication to it, which I just observed in
the last year, in your efforts to help Stu and others, particularly on the
musculoskeletal disorders, and help the rest of us with a variety of
It's been very much appreciated. That's a long tenure to serve on a
committee like this. What a punishment, I would say; but we certainly
appreciate your dedication and I think OSHA does the same.
MS. NELSON: Yes, we do. We do have a certificate of appreciation for
Emily Sheketoff was going to be bring it up sometime after 10, I don't
know; perhaps we'll all be disbanded by the time she gets here, but it's a
certificate that has been signed by the Secretary and by Joe Dear
expressing our appreciation for all your work; and I know that we're going
to miss your participation on a regular basis, but hopefully you will be
able to come back for some of the meetings that ACCSH has, and continue to
be involved in some way.
DR. RINGEN: Thank you very much from all of us on the committee.
MR. MEIER: It's been rewarding and educational.
DR. RINGEN: Certainly educational; in that sense rewarding, yes.
MR. MEIER: I've appreciated the opportunity.
DR. RINGEN: Anybody have any additional issues, anything?
Motion to adjourn?
MR. RHOTEN: Moved.
DR. RINGEN: All in favor.
DR. RINGEN: Thank you very much for your participation.
(Whereupon, at 9:55 a.m., the meeting adjourned.)
Advisory Committee on Construction Safety and
||August 9, 1995|
This is to certify that the attached proceedings were held according to
the record and that this is the original, complete, true and accurate
transcript which has been compared to the reporting or recording
accomplished at the hearing.
|| August 9, 1995|