U.S. Department Of Labor
Occupational Safety And Health Administration
Advisory Committee On Construction Safety And Health

Volume II

August 9, 1995
Room C-5320, Seminar Room B
Francis Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C. 20210

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Members Present:

Employee Representatives

William C. Rhoten
United Associate of Journeymen
and Apprentices of the Plumbers
Pipe Fitting Industry
901 Massachusetts Avenue, N.W.
Washington D.C. 20001

Dr. Knut Ringen, Chairman
Director, Center to Protect Workers Program
111 Massachusetts Avenue, N.W.
Washington, D.C. 20001

William J. Smith
Director, Safety and Health
International Union Oprtating Engineers
1125 17th Street, N.W.
Washington, D.C. 20036

Stewart C. Burkhammer
Vice President & Manager of Safety Services
Bechtel
9801 Washingtonian Boulevard
Gaithersburg, Maryland 20676

Bernice K. Jenkins
Corporate Compliance Officer
P.J. Dick, Inc./Trumbull Corporation
P.O. Box 98100
Pittsburgh, Pennsylvania 15227

Kathryn G. Thompson
Kathryn Thompson Development Company
95 Argonaut Suite 200
Aliso Viejo, California 92656

State Representative

Allen Meier
Commissioner of Labor
State of Iowa
100 East Grand
Des Moines, Iowa 50319

John Pompeii, Administrator
Oregon Occupational Safety and Health Division
Department of Consumer & Business Services
Room 430
Labor & Industries Building
350 Winter Street, N.E.
Salem, Oregon 97310

Federal Representative

Diane D. Porter
Assistant Director, NICOSH
1600 Clifton Road
Atlanta, Georgia 30333

Public Representative

Ana Maria Osorio
Chief, Division of Environmental & Occupational
Disease Control
California Department of Social Services
5801 Christie Avenue Suite 600
Emervyville, California 94608

P R O C E E D I N G S

(9:10 am)

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 say that.

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 committee.

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 produce regulations.

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?

[No response.]

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 committee.

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 there.

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 committee?

MS. PORTER: That's correct.

DR. RINGEN: At that you're going to deal with both electrical safety and --

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. Okay.

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 group.

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 just start.

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 goals.

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 who attended.

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 Plan.

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 education.

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 at.

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 many, hopefully.

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 employment.

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 employer.

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 be considered.

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 it.

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 that.

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 later.

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 provide.

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 report.

I think that's it.

DR. RINGEN: Is it the intent that the work group will develop this guide?

MS. OSORIO: Well, like I said, I kind of feel, I feel like a shadow reporter here.

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?

[No response.]

DR. RINGEN: All in favor?

[Chorus of ayes.]

DR. RINGEN: Any opposed?

[No response.]

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 very seasonal.

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 reproductive issues.

DR. RINGEN: I guess we'll get a full report on that also, by the next meeting.

MS. OSORIO: Yes, I'm sorry. I didn't realize there wasn't going to be a report.

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 late.

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 this investigation.

In addition, the office and the building and construction trades are working on a video for construction safety primarily emphasizing the four focused hazards.

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 statistics.

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.

Thank you.

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 you know?

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. Thank you.

DR. RINGEN: Ellen Rozwowski. Use a microphone, please, and identify yourself.

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 next meeting.

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 mannequin.

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 unbelievable.

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.

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 there.

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 research program.

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 there.

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 work.

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 good denominator:

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 business.

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 outdated.

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 issue.

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 there.

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 category.

DR. RINGEN: I guess the aerosol cans are still used, too. We'll get the mannequin out there.

[Laughter]

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.

[Simultaneous discussion]

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 self-employed person.

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 deal.

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, new people.

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 client.

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 States.

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 called?

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 dropout.

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 yet.

MR. BURKHAMMER: Is this October date locked? Is there any potential of changing it?

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.

[Simultaneous discussion]

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 Atlanta.

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 24th?

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 appropriations?

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 meeting.

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 dates.

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 issues.

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 you.

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.

[Applause]

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.

(Vote)

DR. RINGEN: Thank you very much for your participation.

(Whereupon, at 9:55 a.m., the meeting adjourned.)

 

- - -

REPORTER'S CERTIFICATE

TITLE:

Advisory Committee on Construction Safety and Health

DATE:

August 9, 1995

LOCATION

Washington, DC

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.