DECEMBER 1989 - VOLUME 10 - NUMBER 12
B O O K R E V I E W
Don Lofgren's Dangerous Premises: An Insider's View of OSHA Enforcement paints a compelling picture of corporate disregard for worker health and safety. Dangerous Premises details, in conversational, accessible language, Lofgren's experiences as an inspector with the California Occupational Safety and Health Administration. (The 1970 federal Occupational Health and Safety Act allows states to establish state OSHAs which are monitored by the federal agency.) Ten case studies based on inspections performed by Lofgren reveal corporate indifference to workers' well-being.
"I had made inspections of asbestos rip-outs before, but the demolition of a former Johns-Manville plant was of a different magnitude," begins Lofgren's first and perhaps most startling case study. Lofgren found dangerously high levels of asbestos throughout the work site. The contractor responsible for demolishing the site did not alert its employees that they were working with a dangerous substance, did not provide them with protective gear and allowed them to be exposed to extremely high levels of asbestos dust. The contractor's managers were, however, well aware of the dangers; a son of one of the owners of the contracting company worked as a guard at the plant gate, but was not allowed to venture near the asbestos.
Lofgren shut down most of the work site after his initial investigation. After the contractor trained its workers and issued safety devices to employees working near asbestos, the demolition project resumed. A follow-up visit revealed, however, that the situation had worsened. When Lofgren threatened a second shutdown, the contractor agreed to subcontract the work to a specialist.
It soon became clear, however, that the contractor was intent on skirting Lofgren's efforts to ensure the demolition was carried out safely. The hired subcontractor turned out to be a cousin of the contractor who was no more concerned about handling asbestos properly than the original contractor. When Lofgren conducted a subsequent inspection, he found more violations and issued more citations and fines.
For employers so intent on not complying with health and safety standards, Lofgren determined, OSHA could have only minimal effect. After uncovering the subcontractor's violations, he writes, "I was . . . beginning to wonder whether the OSHA penalty structure and its administrative process were adequate for this job. Part of the problem was that appeals are scheduled nine to twelve months after a citation date. With such long delays, a temporary job can be completed and a contractor can have a new name and address long before action can be taken. And, while the citation is under appeal, the contractor is not liable for repeat citations, which carry higher penalties." Still, Lofgren notes, the most serious violations of OSHA's codes and threats to human life were curtailed by the initial shutdown of the site and by his diligence in monitoring the companies' practices.
Lofgren achieved a less ambiguous gain at a microelectronics company which was using chloroform as a solvent in its production process. He found the company was doing nothing to protect its largely female work force from the effects of the solvent's vapors. (Chloroform is a carcinogen and can also cause sterility.) Workers at the electronics plant who sprayed chloroform onto small electric parts received more than five times the permitted level of exposure to the solvent. Following Lofgren's inspection, the company changed the face plates on the spray boxes in which the workers used the chloroform; this small and inexpensive change was enough to reduce the workers' exposure to safer levels.
In the final chapter of Dangerous Premises, Lofgren concludes that although OSHA often does not do enough, "a review of a series of inspections, as was done in this book, [illustrates] that hazards were abated and injuries and illnesses prevented." Believing that OSHA is basically a sufficient mechanism to protect worker health and safety, Lofgren proceeds to analyze how the agency's effectiveness can be enhanced.
The overall policy direction given to the agency by the President strongly affects OSHA's operations. Under Ronald Reagan, Lofgren points out, inspectors were encouraged to undertake "consultation visits" in which they would advise employers on how to remedy hazards, rather than citing them for noncompliance with OSHA standards. Companies were given "fair warning" and a chance to correct dangers before being fined. When fines were assessed, they were usually low or reduced in the appeals process. This policy of "forced consultation" severely hampered OSHA's effectiveness, Lofgren concludes. "OSHA's penalty schedule is used primarily as a threat and a bluff ... Inspections become imposed information and safety audits without real sanction."
The problem with forced consultation is that many employers will not respond to mere suggestions for improving workplace safety. Lofgren's case studies make this clear. At the microelectronics company, a minor repair prevented workers from being exposed to dangerous levels of chloroform. But "what did it take to motivate this company to change?" Lofgren asks. "Not years of overexposure resulting in adverse health risks, including reproductive effects and cancer. Not persistent complaints from employees. Not acute exposure resulting in hospitalization. Rather, it took an OSHA inspection" and the accompanying threat of penalty.
Instead of forced consultation, Lofgren argues, the governing philosophy of OSHA should be "enforcement through deterrence." He believes that the firm and consistent application of penalties will generate "enough concern ... [to] motivate many more noncompliers to comply." Lofgren makes a number of recommendations to enable a policy of enforcement through deterrence to be carried out effectively. First, OSHA needs more inspectors to perform more work place investigations and to follow up more complaints from workers. Second, he advises, harsher penalties will constitute a more substantial deterrent to violaters of OSHA regulations; harsher fines should be levied--and not bargained down by OSHA's staff attorneys. Finally, the appeals process must be drastically expedited to prevent delays in the enforcement of OSHA standards.
Lofgren is persuasive in making the case for these reforms, but he fails to address more profound questions about OSHA. Dangerous Premises does not examine the history of OSHA--the struggle over its establishment, battles over setting permissible exposure levels, and corporate attacks on the agency's operations. These experiences reveal ongoing conflicts over business' autonomy.
Employers are hostile to OSHA not only because enforcing health and safety regulations is costly, but because it constitutes a government interference in the production process. Their hostility peaks in instances where OSHA empowers workers to influence the production process.
Worker empowerment is crucial to combatting corporate disregard for worker health and safety, however. Lofgren's case studies and analysis make it clear that workers with strong and responsive union representation gain the most from OSHA. Union representatives are generally not afraid to make complaints to OSHA. (Ever though the legislation enacting OSHA bars employers from discriminating against employees who register complaints with the agency, many workers are penalized, in subtle and not so subtle ways, for reporting problems to the agency.) And, according to Lofgren, the mere presence of union representatives at inspector walkarounds and in conferences with employers forces OSHA to prevent regulatory enforcers from sliding into overly cordial relationships with employers.
OSHA regulations which enable workers to directly protect themselves are among the most effective agency standards. Regulations which mandate workers' "right-to-know" about the substances with which they work and which allow employees to refuse to perform work which poses an "imminent danger" provide workers with the means to gain some control over their worklives.
Some unions, notably the Oil, Chemical and Atomic Workers (OCAW), are now lobbying for the enactment of standards which will give workers a right-to-act on their knowledge of hazardous working conditions. This would allow workers to refuse dangerous work, whether it imposes a narrowly construed "imminent danger" or not. It would deputize workers as OSHA inspectors and give them the right to issue citations and to bring in experts of their choosing to help with investigations of workplace health and safety.
Lofgren's recommendations are a good place to start, but the active involvement of those whose lives are endangered is necessary to combat a corporate culture which exhibits little regard for worker health and safety.