"Egregious Delay" -- Unions Sue OSHA For Protective Equipment Standard

Seems like common sense.

When workers are required to use gloves or boots or hardhats in order to do their jobs safely, the employer should pay for that equipment. Seemed like common sense to OSHA, as well, eight years ago when it began the process of issuing a standard codifying OSHA's previous practice of requiring employers to pay for workers' personal protective equipment.

Common sense, that is, to everyone except George Bush's OSHA which seems to be filled with very studious types who never have their fill of studying "complicated" issues. Never.

David James, a spokesman for the Labor Department, said, "The case has not fully been reviewed by the department and it deals with complicated issues that will affect different employers and employees in a variety of ways."

James said the department is reviewing public comments about the proposal before offering a final rule.

Those would be public comments from the last century.

America's workers, however, are fed up with what the AFL-CIO and the United Food and Commercial Workers union call an "egregious example of unreasonable delay"

The labor organizations filed a lawsuit today in the US Court of Appeals in Washington DC to force OSHA to issue its "Payment for Personal Protective Equipment Standard" within 60 days. The standard, initiated in 1997, would require employers to pay the costs of protective clothing, lifeines, respirators, face shields, gloves, boots, hardhats and other equipment used by an estimated 20 million workers to protect them from job hazards.

The failure of the Bush administration to issue the standard has been devastating:

The lawsuit asserts that the Bush Administration's failure to act is putting workers in danger. By OSHA's own estimates, 400,000 workers have been injured and 50 have died due to the absence of this rule. The labor groups say that workers in some of Americas most dangerous industries, such as meatpacking, poultry and construction, and low-wage and immigrant workers who suffer high injury rates, are vulnerable to being forced by their employers to pay for their own safety gear because of OSHA's failure to finish the PPE rule.

OSHA began work on the standard eight years ago in response to a court decision that said that OSHA's previous policy of requiring employers to pay for PPE was not legal because it was not specifically stated in OSHA's PPE standard. Many OSHA standards (such as lead, benzene, noise, respiratory protection, bloodborne pathogens, confined spaces, asbestos, and laboratory safety) already require emloyers to provide and pay for PPE, but where PPE is not required by a standard, OSHA's policy since its creation has been to require employers to pay for the PPE.

The tragedy of this situation is that this should have been a relatively short and simple standard to issue. OSHA issued a proposal in 1999, held four days of hearings which generated widespread support from safety professionals and unions, and almost no opposition from the business community. OSHA had originally planned to issue the standard in 2000, but missed that deadline. The Bush administration has set numerous deadlines since then and missed them all. In 2003, the AFL-CIO, UFCW and numerous other unions petitioned the agency for a standard.

According to the lawsuit, OSHA's failure to require employers to pay for PPE falls most heavily on immigrant workers:

In some jobs, including many low-wage jobs dominated by immigrant workers, PPE is a worker’s principal protection from harm. Poultry workers wear protective gear such as wire mesh gloves to protect their bodies from cuts and rubber boots to prevent them from slipping on wet floors. Welders wear face shields, welding aprons and gloves to protect them from hazards of the welding arc. Construction workers wear hard hats and steel-toed shoes to prevent injury from heavy objects falling on them. They rely on lifelines or lanyards to prevent falls from roofs and other high places. Other workers wear gloves, goggles, face shields, protective clothes and shoes, and other PPE.

Despite its importance, personal protective equipment is the least effective means of protecting workers, behind eliminating the hazard or using engineering controls (such as ventilation) to separate the hazard from the worker. But the lawsuit notes that OSHA itself had expressed concern that the current situation

could also lead to perverse incentives for employers. Given a choice between engineering controls that the employer must pay for, and PPE that would be paid for by employees, employers would have a strong incentive to use PPE even though engineering controls would be more protective and might even be cheaper.

The lawsuit also points out that the failure to require employers to pay for PPE has created an "inconsistent and confusing enforcement landscape."

Workers covered by many specific OSHA standards like asbestos and benzene receive PPE to protect them from these hazards at no cost, but workers who are exposed to hazards that are not covered by a specific rule can be required to pay for their own PPE. Thus, workers on the production line in a battery plant who are exposed to lead are provided protective clothing that is paid for by the employer, 29 CFR § 1910.1025(g)(1). But workers in the same facility on the charging line, who are filling batteries with sulfuric acid, can be required to pay for their own protective clothing, because sulfuric acid exposures are covered by the general PPE rule.

The lawsuit argues that the court should force OSHA to issue the standard because the Administrative Procedure Act (APA), which governs the development of regulations

directs agencies to conclude matters presented to them “within a reasonable time,” and authorizes courts to “compel agency action . . . unreasonably delayed.” OSHA’s failure to complete the PPE rule almost eight years after it was first proposed represents an egregious instance of unreasonable delay. This is an uncomplicated rulemaking on a straightforward, but significant, issue of importance to worker safety and health. This Court should direct OSHA to complete the PPE rule within 60 days after the Court’s order.

The lawsuit called OSHA's failure to act an "egregious example of unreasonable delay."

"Nothing is standing in the way of OSHA issuing a final PPE rule to protect worker safety and health except the will to do so. It is long overdue that the agency take action on protective equipment. Now, we are asking the courts to force OSHA to act," said Joseph Hansen, UFCW International President.

“The Bush Administration’s failure to implement even this most basic safety rule spotlights how it has turned its back on workers in this country,” said AFL-CIO President John Sweeney. “Too many workers have already been hurt or killed. The Bush Department of Labor should stop looking out for corporate interests at the expense of workers’ safety and health on the job.”

Related Documents

Text of the Lawsuit
Press Release in English
Press release in Spanish

Meatpacker's Treatment of Workers and Animals: Not Kosher

Something's not Kosher in Iowa.

Kosher beef is not only tastes better, according to many meat eaters, but it is good for the soul as well, because Jewish law requires that animals be killed quickly and humanely, and the processes must be approved by supervising rabbis.

Unfortunately, at least in one Kosher meat processor, AgriProcessors Inc in Iowa, not only are the cows allegedly not killed humanely, but the human workers aren't treated humanely either, according to a long article in last May's Forward:

One of those workers — a woman who agreed to be identified by the pseudonym Juana — came to this rural corner of Iowa a year ago from Guatemala. Since then, she has worked 10-to-12-hour night shifts, six nights a week. Her cutting hand is swollen and deformed, but she has no health insurance to have it checked. She works for wages, starting at $6.25 an hour and stopping at $7, that several industry experts described as the lowest of any slaughterhouse in the nation.

Juana and other employees at AgriProcessors — they total about 800 — told the Forward that they receive virtually no safety training. This is an anomaly in an industry in which the tools are designed to cut and grind through flesh and bones. In just one month last summer, two young men required amputations; workers say there have been others since. The chickens and cattle fly by at a steady clip on metal hooks, and employees said they are berated for not working fast enough. In addition, employees told of being asked to bribe supervisors for better shifts and of being shortchanged on paychecks regularly.

"Being here, you see a lot of injustice," said Juana, who did not want her real name used because of her precarious immigration status. "But it's a small town. It's the only factory here. We have no choice."

Now, the Washington Post reports that two Conservative Jewish organizations have created a task force to investigate the problems at the plant:

A month after the [Forward] piece ran May 26, the Rabbinical Assembly and the United Synagogue of Conservative Judaism launched a fact-finding study to find out what wrongs, if any, are being committed at the plant in Postville, Iowa.

Workers report being treated like animals:

On Manuel's first day, he said, he found himself slicing up chicken carcasses without even receiving the hour-long orientation that other workers had described.

"There's no training," he said. "You learn by getting chewed out."

Now, Manuel arrives each day at 4:45 a.m. Although the Supreme Court decided last year that meatpacking plants must pay their workers for donning and doffing — dressing and undressing before and after work — Manuel and the union organizers who lived in Postville said that the workers are not allowed to punch in until they take their positions on the line. Rubashkin responded by saying that the company did change the rules when the Supreme Court ruling came down.

Manuel works 10-hour days in the chicken department. Lunch breaks are 30 minutes, but after taking on and off the bloody smocks and masks at the beginning and end, there is closer to 15 minutes' time left for eating. Dozens of workers on a shift share the cafeteria, and the workers say there are only three microwaves, which short-circuit when used simultaneously.

"I've said, 'Why do you treat us like this?'" Manuel said. "We're human beings, not animals."

And People for the Ethical Treatment of Animals allege that the animals aren't treated very well either:

People for the Ethical Treatment of Animals has also campaigned against the slaughterhouse in recent years, alleging that workers, including rabbis, ripped the tracheas and esophagi out of the throats of fully conscious cows, which were left trying to stand three minutes after their throats were slit.

PETA cites a 2004 videotape it says was obtained by an undercover cameraman for the group. In the video, cows that have had their throats slit are shown writhing on the ground of the plant in pools of their own blood. AgriProcessors denied charges of inhumane slaughter then, telling PETA that its practices complied with kosher law.

Temple Grandin, a designer of livestock handling facilities and the author of several books on animal handling, welfare and facility design, saw the PETA tape but has not been allowed to visit the facilities.

"During my career I have visited over 30 kosher beef plants in the U.S., Canada and other countries . . .," she writes on her Web site. "Kosher slaughter without stunning can be done with an acceptable level of welfare when it is done correctly. When shehita [Jewish ritual slaughter] is performed correctly with the long knife, the cattle appear not to feel it. This tape shows atrocious procedures that are NOT performed in any other kosher operation."

OSHA also isn't pleased with the company's treatment of workers:

When it comes to outside regulatory agencies, the Occupational Safety and Health Administration have tagged AgriProcessors this year with six violations. That amounts to more than half the violations in all Iowa meatpacking plants during that time, according to OSHA statistics.

And the Agriculture Department isn't very happy about the plant's treatment of animals:

In March, the U.S. Department of Agriculture released a report finding that AgriProcessors had indeed violated provisions of the Humane Slaughter Act. The USDA did not, however, pursue criminal charges.

Meat, Lies and Op-Eds

The American Meat Institute didn't take kindly to a Washington Post Op-Ed last month by Lance Compa and Jamie Fellner describing the horrendous working conditions faced by meatpacking and poultry workers.

Compa and Fellner, authors of a report by Human Rights Watch issued last January entitled “Blood, Sweat, and Fear: Workers’ Rights in U.S. Meat and Poultry Plants,” described "the cuts, amputations, skin disease, permanent arm and shoulder damage, and even death from the force of repeated hard cutting motions," the fact that the companies do little to prevent these injuries (even though solutions are well known) and the lack of government protections.

But J. Patrick Boyle, president and chief executive of the American Meat Institute, writing a response in the Post, claims that Compa and Fellner's article "bears no resemblance to the reality of today's U.S. meat and poultry industry, or to our documented and successful efforts to enhance workplace safety."

Now I'm all for "balance" in our newspapers, there are two sides to every story, yadda, yadda. But I would think that a news organ as respected as the Washington Post would at least insist on a modicum of truth when accepting a response to one of their op-eds. In this case, they failed miserably. Instead of a fact-based response, we have a commercial for the AMI.

So where's the beef? Let's look at some of the myths and facts.

According to Boyle,

• It doesn't make good business sense to let workers get injured because "Each time we have to replace a valued, experienced employee, the cost of recruiting, hiring, and job and safety training for a new employee can easily exceed $5,000."
  
  Truth: I find this hard to believe, considering that the Government Accountability Office (GAO) recently reported that turnover in some plants can exceed 100% in a year.
  
  
• The Bureau of Labor Statistics reports a 67 percent decline in total injuries and illnesses since 1990.
  
  Truth: This is probably the biggest lie. First, the 67% drop is based on a change in BLS reporting methodology which Boyle never mentions.
  
  Second, the data is based on reported injuries and there is massive underreporting of injuries, because immigrant workers are afraid they will lose their jobs or be reported to Immigration, managers refuse to report repetitive stress injuries as work-related, insisting that they happened because of the employees' activity away from work.
  
  Finally, the BLS data does not include the night shift cleaning employees, who do the most dangerous work, but are generally employed by contractors. Instead of being counted as part of the meatpacking industry, they're counted in the same industrial category as building janitors and hotel room cleaners. (This is the same problem that has been identified in the refinery industry.)
  
  
• The United Food and Commercial Workers union estimates that it represents 60 percent of the red-meat-packing workforce, so the industry is clearly not anti-union.
  
  Truth: Something doesn't quite compute. According to the GAO,

  46 percent of workers in the meat products industry were union members, a figure that had remained stable since the 1970s. However, by the end of the 1980s, union membership had fallen to 21 percent. Declining rates of unionization coincided with increases in the use of immigrant workers, higher worker turnover, and reductions in wages.



• Processers don't force employees to work at unsafe speeds. In fact, "line speeds are based on a thorough assessment by systems engineers that ensures that tasks can be adequately and safely performed by a worker in a prescribed time." And anyway, "Line speeds, as well as food safety regulations, are monitored and enforced by nearly 8,000 federal inspectors who are in plants at all times."

Truth: Check out the article below this and then tell me how safe the line speeds are. In addition, the federal inspectors that Boyle talks about are not OSHA or worker safety inspectors, they are Department of Agriculture inspectors who are concerned about the quality and safety of the meat, not the safety of the workers. According to the GAO,

Line speed is regulated by USDA to permit adequate inspection by food safety inspectors. According to USDA, when the maximum speeds were originally set and when they are adjusted by the agency, the safety and health of plant production workers is not a consideration.

Boyle knows this. He's just hoping Washington Post readers don't know this.

So what, according to Boyle is the root cause of the apparent dementia plaguing Compa and Fellner? The root cause of this distorted picture of the American workplace is apparently that too many of today's journalism and sociology students have been contaminated by required reading of Upton Sinclair's The Jungle, "a moving fictional account of an immigrant's plight in a number of industries....It's a bit like relying on "Oliver Twist" for a picture of modern child care."

According to Boyle,

If Compa and Fellner can't accept the idea that we do the right thing just because it's right and we have a strong collective conscience, maybe they can believe that we do it because it's also financially beneficial and required by federal regulations. Either way, we are proud of our workplace safety improvements and committed to further progress.

So who's living in a fantasy land? In fact, listening to J. Patrick Boyle glorify the meat packing industry is a bit like listening to Donald Rumsfeld tell us that victory is right around the corner in Iraq.

The American Meat Institute and the Washington Post should be ashamed.