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Government breaks the law: the sabotaging of the Occupational Safety and Health Act.


CORRUPTION AMONG PUBLIC OFFICIALS IS GENERALLY ASSOCIATED IN THE public mind with such egregious behind-the-scene activities as taking bribes and kickbacks, colluding with private contractors who bilk the government or produce shoddy merchandise, and as revealed in the Iran/Contra scandal, complicity in narcotic trafficking. Yet in an insightful article on corruption pertaining to military spending, the important observation is made that "even if all the fat were trimmed and the crooks thrown in jail, the problem of corruption would not be solved" (Dollars & Sense, 1985: 3). For corruption is rooted, the article maintains, in the military-industrial complex, which serves to benefit certain key institutions and those who control them at the expense of the public. More generally, when the driving force behind a program is not really intended to serve the public interest, but is mainly oriented toward pandering to special interests, it is inherently corrupt.(1)

Because the institutional sources of corruption are intermediated through individuals, the inclination of the public and of many scholars has been to blame corrupt practices on the moral shortcomings of those who abuse their office.(2) This approach, however, is often misleading. Those who were opposed to the appointment, for example, of former CIA Deputy Director Robert Gates as CIA director complained about his devious and deceptive conduct.(3) Yet this is just what the CIA requires. Since among its important roles is to undermine democratic movements -- an objective that is certainly not sanctioned by any statutes -- the CIA would self-destruct if led by anyone who insisted upon integrity, freedom, and openness. Many other government agencies, including those with benign reputations, also require officials who are willing to neglect their moral and legal responsibilities to the public. Those who resist conforming are penalized and weeded out. Not by identifying personal proclivities, but by taking into account the underlying systemic and structural influences upon government agencies can we understand widespread corruption in government and its corrosive impact on democratic decision making.

If secret government tends to subvert democracy, the converse, open government, does not ensure uncorrupt and democratic conduct. Since corruption is the betrayal of the public trust by misusing public office to serve particular individuals or special interests, the widespread assumption among scholars and the public is that corrupt conduct is generally clandestine (Alatas, 1980: 13).(4) However, corrupt practices in agencies within the executive branch and various independent enforcement agencies are routinely out in the open despite illegal conduct. Like behind-the-scenes corruption that feeds the nation's rapidly growing list of scandals, the misconduct of these agencies appreciably undermines the democratic elements of the U.S. political system.

Overt illegal conduct among enforcement agencies is endemic in liberal-democratic societies. Because the business sector is not omnipotent, it is unable to prevent many progressive laws from being enacted. If social-reform advocates completely lacked clout, all left-of-center bills would fail and, accordingly, there would be an absence of such legislation for public officials to flout. However, although the business community lacks absolute power, it exerts disproportionate influence, which it frequently employs successfully to prevent these statutes from being effectively enforced. The result is that enforcement agencies continually violate their legal duty to protect the public.

The influence of business is often also reflected in the various provisions of progressive statutes that dilute their effectiveness. Penalties for violations are often too lenient, remedial recourse is usually legally cumbersome, and agencies are given too much discretion. For these reasons, the failure of agencies to effectively enforce the law is often attributed to weaknesses in the statute. Yet even without amending the laws, the statutes are not empty boxes that agencies can fill anyway they choose. Agencies cannot continually engage in a pattern of nonenforcement without violating the law. To do so is to abuse their discretion, which is illegal. Yet feeble enforcement of the laws is the rule. The Savings and Loan (S&L) scandals, the polluted environment, the myriad of unsafe drugs, and widespread false advertising are among the grim testimonies to the lackadaisical enforcement practices of government agencies.

Even the most carefully constructed statutes do not compel agencies to enforce the law. The executive branch is adept at finding ways to break the law, and members of the judiciary, who are carefully selected by the executive branch and are usually confirmed by the Senate, generally validate the illegal actions of public officials. The continual pursuit of the perfect law, one that would impel agencies to adequately enforce statutes that regulate business conduct, is an illusory objective.

The unending abuse of the laws by public officials is camouflaged with legal rationalizations, which in part explains why the unlawful nature of their misconduct is often not apparent to the public. Also, because we associate corruption and illegal conduct with the actual commission of some objectionable act, when agencies do little or nothing about a problem, we do not regard it as illegal and certainly not criminal. Typical of the literature on corporate crime and violence is the lack of discussion on how the failure of public officials to perform their duties may make them accomplices to corporate crime.(5) Yet the failure to act when there is a legal duty to do so is illegal. When such an omission results in injury or death, it is a criminal offense (Henry, 1991: 253-270).

The Occupational Health and Safety Administration (OSHA) is among the agencies that habitually violate their legal obligations. Although its exclusive responsibility is to protect the health and safety of working people on their jobs, the agency instead is far more responsive to business interests. As I will detail in the discussion of OSHA's conduct, OSHA commits with impunity both civil and criminal violations, which in turn encourages the business community to flout the law.

In particular, this essay will consider how OSHA ignores its legal obligations both to enforce health and safety regulations and to adopt new standards. Like many other government agencies that are unwilling to abide by their statutory duties, however, OSHA attempts to convey the misleading impression that it is behaving responsibly. Since OSHA's feeble enforcement record is accessible to the public, its contempt for the health and safety law -- which it is required to enforce -- cannot be hidden from interested parties, particularly from various watchdog organizations.(6) The judiciary, nevertheless, has protected OSHA against the legitimate demands of working people to obtain adequate enforcement of the health and safety act.

OSHA and the judiciary occasionally live up to their obligations. Many OSHA inspectors are serious about their responsibilities, but on the whole they are kept in line. Despite their weakness, working people and their organizations are not powerless. They occasionally have been able to compel OSHA to take strong action, though generally only after publication of flagrant business violations or the occurrence of a major industrial accident. Since OSHA's achievements are more highly publicized than its derelictions, the agency's record, and the judiciary's as well, seems far more in balance than they are in actuality. The truth is that OSHA and the judiciary have continually violated their statutory responsibilities, resulting in a great deal of harm to working people. OSHA's routine performance of its duties cannot be justified as a lawful exercise of its discretionary powers. Its conduct has been illegal, criminal, and therefore corrupt. To use Marcus Raskin's phrase, it is "violence clothed in the law" (1991: 513).

The Problem

Tragically, the federal government's lackadaisical enforcement of the Occupational Safety and Health Act (the OSH Act) has been costing many working people their lives and physical well-being. As fines for violations are generally much lower than the costs of adequately correcting them, the business community realizes that they can get away with homicide and mayhem.

According to the National Safe Workplace Institute (NSWI, an independent research organization committed to advancing safety and health in the workplace), each year over 10,000 men and women are killed on their jobs and up to 70,000 workers become permanently disabled because of on-the-job injuries. Another 70,000 workers die of occupationally caused diseases. In the long run, about 25% of all workers will be either killed or seriously injured on their jobs or will die of job-related illnesses (NSWI, 1989a: 2). Going to work, as more workers are learning, is not recommended for good health and longevity.

The OSH Act confers the legal authority for enforcing the law on the Secretary of the Department of Labor. The Occupational Safety and Health Administration (OSHA), a unit within the department, has been established to administer the act, and responsibility for the operation of OSHA has been delegated to an assistant secretary of labor. Thus, although articles and reports on workplace safety often refer to OSHA without mentioning the Department of Labor, OSHA is not an autonomous unit. In fact, other department officials, including the solicitor, play an important role in shaping OSHA's decisions. The agency is an integral part of the Department of Labor and its practices reflect the policies of the Labor Department's secretary. OSHA's misconduct, then, is also the misconduct of the Department of Labor.

Critics of OSHA's lackluster performance have sought mainly to persuade Congress to amend the statute and to compel OSHA to adopt more health and safety standards. The OSH Act could certainly be improved and more regulations would be useful. A serious problem is that developing and finally approving regulations take at least four years, often much longer, not including a few additional years absorbed by court challenges (Shapiro, 1989: 13-14). Moreover, most proposed regulations are never approved.

OSHA's Enforcement Record

Yet when we consider how little OSHA has accomplished by using the legal tools it already possesses, the faith that changing the legal text will significantly improve enforcement practices is unconvincing. Revising the OSH statute would prompt OSHA to find new strategies to circumvent it. Importantly, the judiciary can al so be counted on to undermine the law.

Unions and other advocates of a safe workplace realize that OSHA could do much better without changing the laws. Yet they also believe that OSHA is generally law abiding and, therefore, reforming the OSH Act would influence the agency's conduct. Reform advocates have been urging Congress to adopt severe criminal penalties to discourage violations.(7) They maintain that the inadequate penalties of up to $10,000 in fines (recently increased to a maximum of $70,000) along with six months in prison for a first willful violation that causes death have discouraged the Department of Justice from prosecuting cases recommended by OSHA. Since the Department of Justice has not been prosecuting, OSHA has been reluctant, advocates claim, to refer cases.

True, OSHA has rarely recommended cases for criminal prosecution. Only one employer was ever sentenced to jail, for only 45 days (ESHG: Developments, 1990: 13,050). Yet the claim that statutory limits on penalties discourage the Department of Justice from prosecuting employers conflicts with the department's own assertion that by criminally prosecuting violators under the Comprehensive Crime Control Act of 1984, it can ask for penalties of up to $250,000 for each individual and $500,000 for corporations (USCS, 1990d: 60-61). Also, employers guilty of workplace homicide, who have knowingly jeopardized the safety of their employees, could serve long prison sentences under federal law if successfully prosecuted for second-degree murder or manslaughter.

Although the California OSH Act has certain advantages, the criminal penalties in California for homicide due to workplace accidents are not more stringent than the federal law. Yet while CAL/OSHA, which operates, after all, in only one state, has recommended 292 cases from 1981 to 1988 for criminal prosecution, the comparable figure for the federal government during this period is just 19. Almost 40% of CAL/OSHA's referrals had successful outcomes (NSWI, 1988a: 15).

The enormous differences in enforcement practices cannot be understood by comparing the legal scriptures. Rather, those who are responsible for enforcing the federal statute are resistant to implementing the OSH Act. CAL/OSHA's enforcement record, incidentally, has been recently deteriorating as it, too, has been losing interest in properly enforcing the law. If the federal OSH Act is amended, those entrusted with enforcing a revised statute will attempt to ensure that progressive changes in the law will be undermined.

Although Congress has substantially increased maximum fines, OSHA has almost always imposed fines well below the statutory maximum for serious violations, including those resulting in death. Also, as OSHA's highly publicized megafines show, OSHA can count violations in ways that yield substantial fines. The agency on occasion tabulates the total number of violations by multiplying each violation by the number of employees. OSHA, then, has not lacked the tools to compel employers to obey the law.

The problem has been that OSHA has generally preferred to pamper employers rather than penalize them. The average fine for manufacturing companies in a recent year was only $34 (Weil, 1991: 33). Proposed fines -- if they are challenged, they are at least deferred, and almost always reduced -- for construction accidents involving at least one fatality was under $1,000 in most cities (NSWI, 1989a: 12). Worse yet, two out of five fatalities in the construction industry did not result in any penalty at all Ibid.: 11).

Moreover, according to the General Accounting Office (the investigative arm of Congress), OSHA has been closing cases without requiring adequate evidence that violations were corrected. The agency only requests evidence. Also, OSHA discourages follow-up inspections. In 1989, only six percent of inspections were follow-up. OSHA's policy is to limit these inspections to 10% of all inspections (ESHG, 1991: 2-3). Very few employers who are cited for violations, then, are under pressure to make any improvements at all.

OSHA has been not only irresponsible: it has also been breaking the law. As the statute gives OSHA considerable discretion -- fines, for example, are not mandatory -- the impression is that OSHA is abiding by the mandates of the OSH Act. Since OSHA must take into account many factors to guide its conduct, it needs considerable discretion. The use of discretion, however, is limited by law. Not only is a public agency prohibited from doing whatever it wishes; neither can an agency take actions that are allowed by the law, but are undertaken for the wrong reasons. According to the Administrative Procedure Act, if an agency's conduct is arbitrary and motivated by reasons not allowed by the law, it is abusing its discretion, which is illegal (USCS, 1989: 432).

OSHA's enforcement practices are primarily motivated by its greater commitment to employers than to employees. Unlike the National Labor Relations Act, however, which is supposed to consider the interests of both employers and employees, the sole intent of the OSH Act is to protect workers. OSHA is required by law to respect the intent of the statute, which is to make the workplace healthier and safer for working people.

The agency's unlawful allegiance to employers is reflected, of course, in its lax enforcement practices. After more than 20 years of the OSH Act, the workplace remains dangerous. According to the Bureau of Labor Statistics, occupational injuries in construction, which is among the most hazardous industries, have increased over the past 10 years by 100,000 (Green, 1991: 9). The industry continues to violate, with virtual impunity, safety standards that were known to be dangerous long before the OSH Act was passed.

The Illusion of Megafines

Yet frequently mentioned in the mass media is OSHA's imposition of megafines, which were first imposed during the Carter administration. These fines, exceeding $100,000, convey the impression that OSHA is serious about enforcement. Although OSHA publicizes these fines, the agency does not inform the public that they are later substantially reduced by as much as 96% (NSWI, 1989b: 4). Moreover, the Department of Labor's Inspector General, who is responsible for auditing the activities of the department, found that because OSHA makes little effort to obtain what is owed to the government, the agency collects only a small amount of the fines due (NSWI, 1988b: 22-23). OSHA's disinterest in collecting fines violates both the Debt Collection Act of 1982 and its own regulation on collecting delinquent fines.

A record of final settlements imposed on various companies was requested by NSWI under the Freedom of Information Act. Despite the law, OSHA resisted complying. The Institute finally obtained the information it requested only after threatening to expose its recalcitrance, which was illegal, to the media and to Congress. The Washington Post columnist, Jack Anderson, correctly referred to OSHA's penalty approach as "a public relations binge" (Anderson, 1989: E19).

Tragic Events, Frivolous Response

OSHA's negligence has serious consequences; workers die or become incapacitated. In October 1989, a fire and explosion at a Phillips Petroleum Plant killed 23 workers and injured over 130 others. The incident was caused by the sudden release of several highly flammable gases. The Secretary of Labor acknowledged that the accident could have been avoided if recognized safety procedures had been followed. Among the violations were inadequate hazard communication, insufficient emergency exits, and insufficient respiratory protection. OSHA also found that Phillips Petroleum had ignored both its own procedures and standard industry practice (ESHG, 1990: 2).

This accident could have been prevented by OSHA had it diligently enforced the law. OSHA knew that the company's facilities had serious safety problems. Before this event, OSHA's inspection of facilities in the region showed 18 killed and many others hospitalized (Ibid.). These accidents should have triggered a vigorous enforcement effort; but they did not. In fact, despite the irresponsibility of management, OSHA did not even recommend criminal prosecution. OSHA's conduct was predictable. According to an audit by the Inspector General of the Department of Labor, OSHA has generally failed to take appropriate action "against employers with significant histories of fatalities" (NSWI, 1988b: 10).

In Chicago, an OSHA officer did not inspect a plant next door to the office because the company's records indicated a low injury rate. Yet conditions at the company's plant were described by a reporter as an industrial gas chamber. Several months after the OSHA inspection, an employee died of cyanide poisoning. The evidence showed a pattern of deception by management, which persuaded the State of Illinois to prosecute company executives for committing criminal homicide. A worker was instructed, for example, to remove the skull-and-crossbones symbol that warned of the lethal nature of one of the chemicals (Metz, 1988: 16). Yet OSHA had been quite willing to settle for only a modest fine of under $2,400 (Committee on Government Operations, 1988: 2). Each of three company defendants, however, were tried and sentenced by a state court in Illinois to 25 years in prison.(8) The sentence, though, was subsequently overturned on flimsy grounds.

Rationalizing Inaction

Advocates for a safe workplace complain that the paucity of standards is worrisome. They are convinced that the latitude of the agency to enforce the OSH Act is very limited. Yet the yearning for more and better regulations, although certainly appropriate, has been manipulated by the agency to detract from its poor enforcement practices. More often than many advocates realize, the problem is inadequate enforcement rather than OSHA's lack of a legal basis to act. Consider, for example, the approach taken by the agency, the media, and even advocates on the issue of protecting employees working in confined spaces. Accidents in confined spaces are responsible for about three percent of workplace fatalities. The main cause of death is asphyxiation. In addition, workers are killed because of mechanical failures they could not escape from in time.

OSHA expressed interest in a confined-space regulation as early as 1975, but to date one has not been adopted. The agency has claimed that the lack of a confined-space regulation has left many workers inadequately protected. It maintained "that the existing standards do not adequately protect workers in confined spaces from atmospheric, mechanical, and other hazards" (Federal Register, 1989: 204080).

The media and advocates have echoed OSHA's claims. A caption in a front-page Los Angeles Times article read "Lack of OSHA Regulations -- Confined-space Deaths Blamed on Federal Delays" (Weinstein, 1989: 1). Just before a public hearing on a detailed proposed confined-space regulation, a New York Times article discussed how family members of victims who were asphyxiated in confined spaces were to testify that their sons and thousands of others were killed because safety standards for confined spaces had not been adopted (Robbins, 1990: A17). The testimony of family members was arranged by NSWI, which was lobbying for the regulation.

The proposed regulation contains some very useful recommendations, especially a requirement that trained attendants regularly monitor confined work spaces. Yet OSHA already has an arsenal of regulations to protect workers confronted with hazardous conditions in confined spaces. In fact, the agency itself acknowledged that the "hazards encountered in permit spaces, such as exposure to electrical shock and contact with chemicals and machinery, are also encountered elsewhere in the workplace and are addressed, in general, by existing OSHA standards" (Federal Register, 1989: 204080).(9)

Also, to prevent atmospheric contamination, employers must adopt "engineering control measures" such as proper general and local ventilation systems and must substitute less toxic materials (CFR, 1990a: 401). When changing the workplace environment is not feasible, workers must be provided with appropriate personal protective equipment, including respirators (CFR, 1990b: 400, 401). In addition, information on the hazards of chemicals used at work must be communicated to employees (CFR, 1990c: 3867-3884).

Where recognized workplace hazards exist, OSHA's obligation to intervene is not limited to specific regulations. The OSH Act mandates a general duty clause to protect workers when no existing regulations apply. The clause declares that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (USCS, 1990b: 37).

The courts rejected the contention of employers that the general duty clause is unconstitutionally vague. The Supreme Court, reflecting on the legislative history of the clause, maintained that it was intended "to deter the occurrence of occupational deaths and serious injuries by placing on employers a mandatory obligation independent of the specific health and safety standards to be promulgated by the Secretary" (U.S. Reports, 1979a: 13). General duty citations could protect workers against exposure to toxics not covered by specific regulations. Although OSHA serves citations under the general duty clause for violations, including some for confined-space violations, very few are issued and the percentage given out began to decline in the 1980s (Morgan, 1983: 298-302).

Still, imposing additional legal regulations on business, such as requiring attendants to monitor confined spaces, could provide OSHA with more and better tools to enforce the OSH Act. Certainly, no proposed standard deserves as long as 16 years of consideration. In fact, the Administrative Procedure Act specifies that agency action cannot be unlawfully withheld or unreasonably delayed (USCS, 1989: 430). Since OSHA itself has officially recognized the importance of a confined-space regulation to saving lives, the failure of the judiciary to order OSHA to adopt the proposed regulation is a violation of the Administrative Procedure Act.

Lopsided Due Process

As already mentioned, OSHA's regulations are weakly enforced. When an OSHA compliance officer finds a violation, a citation is issued that identifies the nature of the violation and the period of time allowed to correct it. If an employer contests a citation, its enforcement is at least temporarily suspended. Commonly, employers work out a satisfactory settlement with OSHA. Although employers can appeal OSHA orders, they generally don't have to.

Since the welfare of workers is directly affected by the outcome of these settlements, employees and unions need the opportunity to contest agreements that fail to adequately address their health and safety grievances. However, although employers can contest and appeal any aspect of a citation, employees and their representatives can only object to the time allotted to deal with the violations. They cannot challenge the adequacy of OSHA's abatement order itself.

Adverse decisions can be appealed to the Occupational Safety and Health Review Commission, an autonomous, quasi-judicial body whose three commissioners are appointed by the president with the consent of the Senate. Within the commission, administrative law judges initially hear cases, which can then be reviewed by the commissioners. These cases can afterward be appealed to a federal court. The commission was created as a concession to business. It provides business with an additional opportunity to contest adverse orders, or at least to delay their enforcement for a long while. Among the commission's contribution to business is its practice of throwing out OSHA fines (NSWI, 1990: 5).

Except for allowing employees to contest the period of time that employers are allowed to abate violations, none of these legal routes are available to employees and their representatives. This dual system of justice, which is so generous to employers, but stints on employee rights, should have been declared unconstitutional. Employees are clearly being denied both due process and the equal protection of the laws. The denial of equal protection is especially ludicrous because the purpose of the OSH Act is to serve working people, not employers.

Since the federal appeals courts and the commission have deprived workers of their legal rights to protect their health in the workplace, the Supreme Court could have reminded these bodies of their constitutional obligations. Yet the high court was so thoroughly convinced that OSHA's right to withdraw a citation is unreviewable that it issued its opinion over the protest of two justices without giving those who objected an opportunity to present their side (U.S. Reports, 1985: 3-8). Called a summary proceeding, courts use this judicial procedure to settle cases promptly when there is supposedly no basis for a legitimate legal dispute.

The assault by the judiciary on the due-process rights of workers, many of whom confront life-threatening working conditions, is extraordinary. It assures that very few cases will reach the courts because workers are made completely dependent on OSHA to file suits against uncooperative employers.

As employees and their representatives cannot challenge OSHA settlement agreements with employers, disputes initiated by working people cannot reach the commission or the courts. The experience of workers and their unions is vital to determining how safety and health violations should be abated. Like parties to any dispute, their testimony may or may not be persuasive. Yet allowing only employers to appeal adverse decisions unfairly tilts the scales of justice heavily toward business.

Even had the OSH Act mandated the dual system of justice, this policy would still be illegal because it is unconstitutional. Nowhere in the OSH Act are employees explicitly barred from challenging settlements. On the contrary, in the section of the OSH Act on contesting citations, it reads: "The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings" (USCS, 1990c: 201). Legally speaking, a party is anyone who is directly interested in the issue being considered and who has the right, therefore, to be completely involved in any proceeding.

If the contrast between the statutory language and how it is interpreted seems startling, the commission and the judiciary have a prosaic explanation. The section of the statute on enforcement cites two grounds for appealing citations to the commission: first, when employers contest a citation, and second, when an employee or representative contests the period of time fixed in the citation for abating a violation. The courts have interpreted this to mean that employees are limited to challenging the time allowed for correcting a violation.

In 1982, the commission rejected this interpretation. The majority opinion explained that since the statute specifies that a citation should indicate the nature of the violation, the regulation that has been violated, and the time allowed to fix the violation, the time is not yet ripe for an employee to challenge a citation on a basis other than the reasonableness of the time period (OSHD, 1982: 33,033).

The actual changes, if any, that employers are required to make in the workplace are determined later, when OSHA and the employer work out a settlement agreement. Only then does it become appropriate for employees to challenge the abatement method. After a Reagan appointment to the commission, the OSH Act was reinterpreted to exclude workers as parties to its proceedings other than to challenge the time allotted for abating violations (OSHD, 1984:34,486-434,489).

Employees can still challenge OSHA's delays and inaction on proposed regulations or amendments. Although a few battles on these issues have been won in court, these victories are illusory unless they are enforced. Since OSHA has been relieved of employee legal challenges to its enforcement practices and settlements, it can continue to abuse its discretion with impunity.

New Regulations? More Inaction

If standards are not followed, why do OSHA and the business community fiercely resist their adoption? First, regulations are not altogether ignored. Some employers take regulations seriously, while various unionized companies are under pressure from unions to conform to OSHA's standards. Many employers are repeatedly cited for infractions, however, and still do nothing to correct them. As fines are typically less expensive than the costs of remedying violations, they are not a deterrent. These fines, in effect, are fees charged for doing business as usual.

As health and safety regulations serve as the legal basis for citing employers, OSHA is continually urged to adopt new standards. In a detailed critical evaluation of the rule-making process, researchers funded by a grant from OSHA reported that the agency even lacked regulations on most chemicals that have been identified as carcinogenic by the federal National Cancer Institute (Shapiro, 1989: 2).

OSHA has also ignored the law by failing to adopt stringent standards to adequately reduce the risks of exposure to hazardous substances. The agency even refused to strengthen its standard for airborne asbestos exposure until ordered to do so by a federal court. The serious health risks of being continually exposed to high levels of airborne asbestos is recognized by OSHA, which admitted that its own standard posed significant risks to workers. Yet in a court challenge by the AFL-CIO Building and Construction Trades Department, the agency's defense rested on its view that industry could not attain lower levels. As the court noted, OSHA's own records revealed that lower levels of exposure both could have and have been achieved. Appropriately, OSHA was ordered to reconsider promulgating a stronger regulation (Federal Reporter, 2d ed, 1988: 1269, 1272-1273).

The Supreme Court, drawing on the legislative history of the health and safety statute, had ruled that OSHA is forbidden to engage in a cost-benefit analysis in deciding to issue regulations dealing with toxic materials (U.S. Reports, 1980: 506-522). There was absolutely no legal justification for OSHA's refusal to issue a more stringent asbestos standard.

One would expect that an agency genuinely committed to minimizing exposure to toxics would be interested in warning those who come in regular contact with hazardous materials of the risks they encounter. Yet OSHA refused the request of unions to order companies that employ mostly non-English-speaking workers to use bilingual warnings and universal symbols on cartons containing asbestos. OSHA's hazard-communication regulations require warnings only in English. Yet the statute itself mandates "the use of labels or other appropriate forms of warning" so that employees are apprised of hazards in order to protect their health (USCS, 1990a: 133). Clearly, OSHA is violating the intent of the statute, which requires that employees be informed rather than kept in the dark about the toxic materials they are working with.

The court ordered OSHA to develop a regulation that would warn non-English-speaking workers, but the agency did not comply. After a complaint was filed in court, OSHA was given a deadline. A regulation was finally issued that left it to employers to determine how to inform employees of the hazardous material they were exposed to. The new regulation did not require bilingual identification or even universal symbols on containers. Since the regulation lacks specifics and gives employers almost complete discretion, compliance can easily be evaded and violations can be difficult to prove. Nevertheless, the court found the new proposed regulation acceptable.

Misinterpreting the Law: The Supreme Court's Turn

Different governmental institutions take turns undercutting the rights of workers by ignoring the OSH Act. OSHA argued before the Supreme Court that since no safe level for exposure to benzene, a carcinogen, can be determined, then it should limit exposure to the lowest technologically feasible level. This approach was consistent with the section of the law just cited, which directs the Secretary of Labor to develop standards assuring that no employee's health would be adversely affected.

The Supreme Court, however, interpreted the OSH Act to require a standard based upon a finding of significant risk rather than mandating the lowest feasible risk (U.S. Reports, 1979: 655). The high court still allowed OSHA considerable leeway. It ruled that OSHA should rely on the best available evidence without being required to support its findings with anything approaching scientific certainty (U.S. Reports, 1979: 656). At least, OSHA is not expected to delay issuing standards until definitive studies are completed. In this instance, the high court was only acknowledging the segment of the law that actually states "on the basis of the best available evidence." Also, the Court stressed that the agency should feel free "risking error on the side of overprotection rather than underprotection" (U.S. Reports, 1980: 656).

However, regulations based upon significant risk implies mandating higher levels of exposure to hazardous materials than regulations requiring the lowest technologically achievable levels. Also, since determining the adverse health effects of chemicals is expensive and takes many years, the Supreme Court's decision curtailed OSHA's ability to rapidly develop regulations. Yet nothing in the statute, as the dissenting Supreme Court opinion pointed out, refers to "significant risk." The statute's section on toxics is worded to minimize impairing the health of all workers exposed to hazardous materials. The high court did what only Congress is allowed to do -- rewrite the law.

OSHA's advocacy of a strict regulation on carcinogens seems inconsistent with its anti-regulatory stance. In actuality, however, OSHA failed to present a strong case. Despite the considerable evidence of the adverse impact of even very low dosages of benzene, OSHA made no finding, as the Supreme Court noted, that evidence of exposure to benzene at levels set by the current standard or below had ever caused leukemia (U.S. Reports, 1979: 634). The Court also noted that OSHA acknowledged that a study it had relied on to establish an emergency standard to reduce exposure levels did not support its view that benzene caused cancer at even much higher levels than the current standard permits (U.S. Reports, 1979: 633). As OSHA's defense of the standard was weak, it would have required an unusually progressive court to have validated OSHA's proposal.

Misinterpreting the Law: The Commission's Turn

The commission and the judiciary have shown the same indifference to working people. In one case, for example, the commission cited a Supreme Court decision to justify rejecting an OSHA general duty citation given to an employer for inadequately protecting employees from exposure to a carcinogenic chemical (OSHD, Kastalon, Inc., 1986: 35, 970-935, 982). As already mentioned, although the Supreme Court opposed a blanket policy of mandating the lowest possible level of exposure to toxics, it nevertheless indicated that OSHA was not obliged to show that a significant risk exists with anything approaching scientific certainty.

Yet the commission rejected the extrapolations from animal data as too speculative, including a Du Pont study in which 100% of the dogs exposed to the chemical, called MOCA, contracted cancers, but none did in the control group. Moreover, industry experts agreed that MOCA is carcinogenic and one leading manufacturer urged the adoption of a standard for MOCA. OSHA had certainly established a significant risk. Although the Supreme Court tremendously diluted the statute's provision on exposure to toxics, the Court didn't annihilate it.

Misinterpreting the Law: OSHA's Turn

In 1972, the agency rejected a petition by a Hispanic-American organization to require employers to provide farm workers with toilets, drinking water, and hand-washing facilities. These basic amenities are indispensable to human health. OSHA's refusal to seriously consider the proposal clashed with the intent of the OSH Act. The judiciary eventually ordered a reluctant OSHA to adopt a regulation, but not until 14 and one-half years later (Shapiro, 1989: 54). As the AFL-CIO's Safety and Health Director observed, "OSHA's list of achievements has been sorely outstripped by its shortcomings and reluctance to act" (Green, 1991: 8). Significantly, OSHA has not taken any serious steps to enforce the new standard (Noble, 1988: Al).


In the corporate world, criminal homicide and the willful injury of working people are daily events. That little or nothing is done to punish these crimes exposes the fiction that in our so-called liberal-democratic society, the "rule of law" prevails. According to the rule of law, laws oblige everyone equally (Lowi, 1988: ix). Therefore, any employer guilty of criminal homicide in the workplace should be subject to as severe a punishment as anyone outside the workplace who was convicted of manslaughter or murder. The reality, of course, is that the opposite is true; corporate managers are, so to speak, getting away with murder.

The rule of law applies also to public servants. Among those guilty of criminal conduct are OSHA officials. Yet they, too, escape criminal prosecution for their illegal conduct, which is mainly reflected in their failure to take appropriate action. Legally speaking, omission is an offense when there is a legal duty to act. By repeatedly ignoring their legal obligations, OSHA officials continually violate the Occupational Health and Safety Act and the Administrative Procedure Act. The Administrative Procedure Act, in fact, specifically includes inaction as a legal violation. Also, those entrusted with enforcing the law have been continually violating the constitutional rights of working people to due process and equal protection.

These, by themselves, are only civil violations. However, when the willful failure to act contributes to injuries and deaths, it is a criminal offense. In particular, these public officials are guilty of complicity because their inaction has encouraged workplace injuries and deaths. A lifeguard who fails to make a proper effort to prevent an individual from drowning a bather is guilty of complicity. Among the legal grounds for complicity, which is liability for the conduct of another, is: "having a legal duty to prevent the commission of the offense, fails to make proper effort so to do."(10) Moreover, according to the federal statute, accomplices are as criminally liable as those who directly commit a crime (USCA, 1969: 57).

OSHA officials have been legally entrusted with being the lifeguards of the workplace. By law, a crime of complicity does not require the accomplice to be on the scene when a crime has been committed. It is sufficient to demonstrate that OSHA officials have resisted making serious efforts to compel employers to correct health and safety violations despite the overwhelming evidence that these violations are appreciably threatening the lives of workers.

To dramatically improve the workplace would require empowering working people. In particular, workers and their chosen representatives would have to obtain the legal weapons needed to allow them to play a decisive role in changing working conditions.(11) Since the labor movement is weak, however, nothing significant can be won by first lobbying legislators for better laws. When workers are better organized and are making significant progress toward forcing employers to take their concerns seriously, only then can they successfully press for laws that reflect and consolidate the gains they have been achieving on the job.(12)

Yet the right to a healthy and safe workplace is a "subversive demand" (Navarro, 1991: 54). It ultimately entails control over the process of production, which interferes with the logic of capital (Ibid.). This incompatibility between the goals of workers and employers is irreconcilable. What begins, then, as a struggle by workers for social reform must eventually be transformed into a struggle to build a society in which protecting life and assuring justice are authentic and primary objectives of government.


(1.) For some excellent essays on the criminal conduct of the state, see Barak (1991). The essays attempt to recast issues of political economy into a criminological framework. (2.) See, for example, social scientist Syed H. Alatas (1980) and Fleishmann et al. (1981). (3.) For a concise summary of Robert Gates' misconduct, see "Mr. Gates' Past, the C.I.A Future." New York Times (November 4,1991): A18. (4.) For a clear, detailed discussion of the traditional concept of corruption, see Alatas' book (1980). (5.) For a comprehensive discussion of corporate crime, see Mokhiber (1988). Yet among the author's 50 recommendations to curb corporate crime, including stiffer penalties, none suggests prosecuting government officials for looking the other way. (6.) The National Safework institute carefully, thoroughly, and aggressively monitors OSHA. Those who are interested in obtaining their research reports, which are for sale, should write to NSWI, 122 South Michigan Avenue, Suite 1450, Chicago, Ill., 60603. (7.) A major obstacle to legislating severe penalties is the belief that corporate illegal conduct generally violates civil law, but rarely criminal law. For a detailed discussion and persuasive refu of this perspective, see Conklin (1977). (8.) For details, see Frank (1987). (9.) The belief that weak enforcement can be overcome by statutory amendments is widely shared by advocates of social reform. hi late October 1991 under the auspices of the AFL-CIO, a worker testified before a congressional committee that he would not have lost his job for complainin to an OSHA inspector about unsafe work conditions if proposed legislation were in place. See O'Neill, Colleen M., "Workers Seek Voice in Workplace Safety," AFL-CIO News (November 11, 1991: 4). However, the OSH statute already prohibits retaliatory dismissals, but OSHA rarely enforces this provision. (10.) This criterion for complicity is from the American Law Institute's (ALI) Model Penal Code, Section 2.06 (iii). In 1962, ALI completed an official draft of the Model Penal Code, major parts of which have been adopted by Congress and the legislatures of most states. ALI is an independ influential organization of lawyers, judges, and legal scholars. (11.) For a thorough and persuasive case study of the serious weaknesses of liberal-inspired regulatory programs, which generally fail because they discourage the participation of those that these programs seek to benefit, see Noble (1986). (12.) For several excellent articles on the failures and successes of organizing around health and safety issues, see "Organizing for Health and Safety," Labor Research Review 9,2 (Fall 1990). See also Judgins (1986).


Alatas, Syed H. 1980 The Sociology of Corruption. Singapore: Times Books. Anderson, Jack 1989 Washington Post (April 12). Barak, Gregg (ed.) 1991 Crimes by the Capitalist State. Albany: State University of New York Press. Code of Federal Regulations (CFR) 1990a Part 1910.134. 1990b Part 1910.132, 134. 1990c Part 1910: 1200. Committee on Government Operations (CGO) 1988 "Getting Away with Murder in the Workplace: OSHA's Nonuse of Criminal Penalties for Safety Violations." 100th Congress, 2nd Session. Conklin, John E. 1977 "Illegal, but Not Criminal." Englewood Cliffs: Prentice-Hall. Dollars & Sense 1985 "Corruption -- Or Capitalism" (October). ESHG (Employment Safety & Health Guide: Commerce Clearing House) 1991 GAO Reports Weaknesses in OSHA Abatement Confirmation Process, No. 1049. 1990 Phillips Petroleum, No. 989. ESHG: Developments (Employment Safety & Health Guide: Developments) Commerce Clearing House 1990 Senate Panel Hearings on Legislation to Increase Criminal and Civil Penalties for OSHA Violations. Federal Register 54 1989 "Permit Required Confined Spaces." Federal Reporter, 2nd 838 1988 Building Construction Trade Department, AFL-CIO v. Brock, Secretary of Labor. Fleishmann, Joel L., Lance Liebman, Mark H. Moore (eds.) 1981 Public Duties: The Moral Obligations of Governmental Officials. Cambridge: Harvard University Press. Frank, Nancy 1987 "Murder in the Workplace." Stuart L. Hills (ed.), Corporate Violence: Injury and Death for Profit. Totowa: Rowman & Littlefield: 103-107. Green, Arlee 1991 "Worker Involvement Crucial to Job Safety, Labor Says." AFL-CIO News (March 18). Henry, Stuart 1991 "The Informal Economy: A Crime of Omission by the State." Gregg Barak (ed.), Crimes by the Capitalist State. Albany: State University of New York Press. Judgins, Bennett M. 1986 We Offer Ourselves as Evidence: Toward Workers' Control of Occupational Health. Westport: Greenwood Press. Lowi, Theodore J. 1988 Forward. Andrei S. Markovits and Mark Silverstein (eds.), The Politics of Scandal. New York: Holmes and Meyer. Metz, Holly 1988 "Death by Oversight." Student Lawyer (September). Mokhiber, Russell 1988 Corporate Crime and Violence. San Francisco: Sierra Club Books. Morgan, Donald C. and Mark N. Duvall 1983 "OSHA's General Duty Clause: An Analysis of Its Use and Abuse." Industrial Relations Law Journal 5,2. Noble, Robert 1986 Liberalism at Work: The Rise and Fall of OSHA. Philadelphia: Temple University Press. NSWI (National Safe Workplace Institute) 1990 "Workplace Safety and Health" 3,11. 1989a "Unmet Needs: Making American Work Safe for the 1990s." 1989b "Unintended Consequences: The Failure of OSHA's Megafine Strategy." 1988a "Ending Legalized Workplace Homicide." 1988b "Failed Opportunities: The Decline of U.S. Job Safety in the 1980s." Navarro, Vicente 1991 "The Limitation of Legitimation and Fordism and the Possibility for Socialist Reform." Rethinking Marxism (Summer): 27-M. Noble, Kenneth B. 1988 "Farm Workers Fault Lack of Enforcement of Sanitation Rules." New York Times (October 4). OSHD (Occupational Safety and Health Decisions: Commerce Clearing House) 1987 Kastalon, Inc. 1984 Pan American World Airways, Inc. 1982 Mobil Oil Corporation. Raskin, Marcus G. 1991 "The Road to Reconstruction." The Nation (April 22). Robbins, William 1990 "Grieving Relatives Gird for Federal Hearing on a New Rule for Job Safety." New York Times (January 30). Shapiro, Sidney and Thomas McGarity 1989 "Reorienting OSHA: Regulatory Alternatives and Legislative Reforms." Yale Journal on Regulation Vol.6.CA (United States Code Annotated) 1969 Tide 18, Section 2. USCS (United States Code Service) 1990a Osh Act, Title 29, Section 655. 1990b OSH Act, Title 29, Section 654. 1990c Osh Act, Title 29, Section 659. 1990d Crimes and Criminal Procedure, Title 18, Section 358 1. 1989 (APA) Administrative Procedure Act, Title 5, Section 706. U.S. Reports 1985 Cuyahoga Valley Railway Co. v. United Transportation Union, Vol. 474. 1980 American Textile Mfg. v. Donovan, Secretary of Labor, Vol. 452. 1979a Industrial Union Department, AFL-CIO v. American Petroleum Institute, Vol. 448. 1979b Whirlpool v. Marshall, Secretary of Labor, Vol. 445. Weil, David 1991 "Enforcing OSHA: The Role of Labor Unions." Industrial Relations 30. Weinstein, Henry 1989 "Lack of OSHA Regulations -- Confined-Space Deaths Blamed on Federal Delay." Los Angeles Times (February 5).
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Title Annotation:Focus on Resistance, Rights, and Justice
Author:Brill, Harry
Publication:Social Justice
Date:Sep 22, 1992
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