OSHA Standards and Democracy

The story below springboards an explanation of why the OSHA standard setting hearing is the most democratic government process worldwide. And why NAM missed the point of those hearings entirely.

NAM originally got bent out of shape [in the year 2000] because OSHA engaged a team of leading experts in ergonomics to provide scientific reviews and testimony at the ergonomics hearings.

The democracy of OSHA standards hearings starts with OSHA having to put on its evidence supporting the proposed standard. Most agencies put a written review in the record, and take written comments. OSHA prepares that review [the preamble], but also puts its own staff on the witness stand to be questioned by any of the parties to the hearing, management or labor. On the record, government staff have to answer the questions the parties want answered, not what OSHA wants to answer.

But wait, there’s more.

By practice, OSHA presents at its expense the leading experts in the field, the authors of parts of OSHA’s preamble and frequently the studies on which the preamble was based. Most of these are university faculty who would otherwise be sitting back at their institution doing research or teaching. Some don’t do any expert witnessing because it detracts from their main career. But OSHA brings them to the hearing room to present the parts of their work relevant to the key issues in setting a standard. And, in the case of ergonomics, to sit there and answer snarky questions from management lawyers such as Eugene Scalia. Scalia, son of the Supreme Scalia, was then representing United Parcel Service and Budweiser. Later he was appointed Solicitor of Labor in the first term of the second Bush Administration, although he was never confirmed by the Senate and left office.

So OSHA’s presenting expert witnesses is a service to opponents of the standard. Instead of commenting on a peer reviewed scientific paper, those who disagree [or agree] with the leading scientific experts get to frame their exact questions and get answers on the record. Thus, OSHA had provided a service to the opponents of its rule by bringing these academic fish into the hearing room barrel, to be shot at by management’s lawyers. [Mostly, they missed, the gang that couldn’t shoot straight.]

[The record is what people quote in their later lawsuits or before Congress and the public.]

What goes around, comes around. First, unlike a congressional hearing, any party of interest may present evidence and request air time. At a price. Management, and labor and public health organizations, also have to read their testimony and put their spokespersons on the stand to be questioned by the other side, and by OSHA. Because it’s not a courtroom [where the lawyer can say “I’m asking the questions here”], cross examination in an OSHA hearing can be a full contact sport in which the lawyer gets hit as well.

This OSHA hearing process [and subsequent litigation] work so well to produce standards both protective and feasible, that the whole bad guy effort centers on preventing a proposal from being issued and hearings held.


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January 24, 2005
How Quickly They Forget...

Not sure how many of you are following the recent flap over the Department of Education and Armstrong Williams, the conservative African-American commentator. The press has seized upon this as the scandal of the decade, in that Williams was allegedly [actually, Williams admitted this and apologized] paid to hype the "No Child Left Behind Act" on his radio show. ….
So why is this on a blog dealing with manufacturing issues? Because it was not very long ago when the Clinton Administration's Labor Department -- OSHA, to be precise -- paid over 20 witnesses $10,000 each to come testify in favor of its flimsy ergonomics regulation. I… the money was just doled out to allies ("cronies" has such a pejorative connotation) of the Administration and the rule. We raised a stink at the time Download file(Click here to download letter to OSHA), but the only reporter who found it a little, uh, aromatic was John McCaslin of the Washington Times, who ran a piece on it. …. They're outraged that the US Government would pay people to support their point of view without either of them disclosing it. What's so ironic is that this isn't what the Department of Education did, but it is precisely what OSHA did, to a collective yawn from the press, save one.
How quickly they forget, indeed.
Posted by Pat Cleary, vice president of NAM, at January 24, 2005 09:42 AM