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Proposed changes to OSHA's consultation practices, September 1999

Note: NRCA submitted the following letter to the Occupational Safety and Health Administration regarding proposed changes to its on-site consultation procedures.

Sept. 23, 1999

Docket Office
Docket No. C-05
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

Re: Proposed changes to consultation procedures

A notice by the Occupational Safety and Health Administration (OSHA) in the Federal Register, Vol. 64, No. 127, July 2, 1999, requests comments on proposed changes to OSHA's consultation procedures. Background from the notice summarizes the history of the OSHA On-Site Consultation Program:
    The Occupational Safety and Health Administration (OSHA), under cooperative agreements with agencies in 44 states, the District of Columbia, and several U.S. territories, administers and provides federal funding for an on-site consultation program which makes trained health and safety personnel available, at an employer's request and at no cost to the employer, to conduct worksite visits to identify occupational hazards and provide advice on compliance with OSHA regulations and standards. (In the remaining 6 states and 2 territories on-site consultation services are provided to small employers in the private sector as part of an OSHA-approved state plan funded by federal grants under section 23(g) of the Occupational Safety and Health (OSH) Act, rather than under cooperative agreements.) Priority in providing on-site consultation visits is accorded to smaller employers in more hazardous industries. (Various OSHA directives currently specify that priority for consultation services be given to employers having not more than 250 workers at the site receiving the consultation, and no more than 500 workers nationwide.) The consultation program was first authorized by Congressional appropriations action in 1974. On July 16, 1998, President Clinton signed into law the Occupational Safety and Health Administration Compliance Assistance Authorization Act (CAAA), Pub. L. 105-197, which codifies this important OSHA program as a new subsection 21(d) of the Occupational Safety and Health Act.
    The OSHA on-site consultation program is administered in accordance with regulations at 29 CFR Part 1908. These regulations provide, among other things, rules and procedures for State consultants performing worksite visits. In the present Federal Register notice, OSHA proposes several revisions to these rules, and requests interested members of the public to submit any data, views, or arguments relevant to these proposed changes, during a 90-day public comment period.
NRCA's position on proposed changes

The National Roofing Contractors Association (NRCA) is opposed to OSHA's proposed revisions to the consultation program, because they are based upon the false premise that consultation visits are tantamount to preliminary enforcement inspections. This would totally negate the consultation program's usefulness and viability by destroying the "firewall" that has historically existed to separate consultation visits from inspections.

NRCA's analysis

Employee Walk Around Rights

Per the Federal Register notice, "Current consultation program regulations provide that employees, representatives of employees, and members of joint workplace safety and health committees may be allowed to accompany the consultant and the employer's representative during the on-site consultative visit 'to the extent desired by the employer' [29 CFR 1908.6(c)(2)]. Although these regulations encourage, but do not require, the employer to accord 'walkaround' rights to employee representatives, OSHA's procedures for some time required that union representatives should be accorded walkaround rights during consultation visits to unionized workplaces."

But though there are no problems with the current regulations, "OSHA is proposing to amend 29 CFR 1908 to expressly provide authorized employee representatives a right to accompany the consultant during the physical inspection of the workplace." This, in fact, would start to dismantle the "firewall" that currently exists between consultations, where employers voluntarily request safety audits, and inspections with citations. And it looks as if OSHA is attempting to downplay the issue when it states:
    Although the role of employees in consultation visits differs from their role in OSHA enforcement inspections, where employee representatives have statutory rights to participate both in the investigation and in subsequent enforcement litigation, there are many potential advantages to active employee involvement during a consultant's worksite visit.
NRCA agrees there are "many potential advantages to active employee involvement", but rejects mandating involvement through regulation. It would compromise consultations and also raise issues per the National Labor Relations Board's "Electromation" decision. (The 12/17/92 ruling found that employer/employee committees in non-union companies are "sham unions" in violation of the National Labor Relations Act.) NRCA believes that Congress is the proper authority to deal with these issues.

NRCA supports HR 1427, the Safety Advancement for Employees Act of 1999. Section 3 of the bill: Encourages employees and employers to discuss, identify, and correct occupational safety and health hazards by affording employers the option of establishing participation programs in the workplace for the sole purpose of addressing safe and healthful working conditions. The bill's section-by-section analysis states: This section does not have, claim, or seek authority to negotiate or enter into collective bargaining agreements with the employer or amend existing collective bargaining agreements between the employer and any labor organization. Moreover, participation programs do not constitute a "labor organization" according to section 8(a)(2) of the National Labor Relations Act or Sections 1 and 2 of the Railway Labor Act. Rather, this section clarifies that participation programs are entirely permissible under the current federal law.

The Federal Register goes on to state: "OSHA is further proposing that authorized employee representatives should be afforded the opportunity to participate in opening and closing conferences with the consultant (either separately or jointly with the employer)." OSHA continues to confuse consultations with inspections and NRCA is opposed.

Employee Notification of Hazards

OSHA's apparent lack of concern for compromising the consultation program is baffling in view of its explanation of the program in the following Federal Register excerpt:
    At the very same time, a consultation visit is a voluntary service provided to small employers who typically would be unable to afford the services of paid safety or health consultants. The visit is not an enforcement inspection which leads to the issuance of citations; involves the creation of inspection records, many of which will ultimately be subject to public disclosure; or has provisions that allow the employer to contest alleged violations. Consultation visits and subsequent reports reflect the best professional judgement of consultants, but the consultant's report of hazards does not have to meet all the legal standards required for the issuance of a citation for violation of OSHA regulations and/or the OSH Act. Further, the report often contains many details about business practices, processes and personnel not ordinarily made public by the employer. Moreover, the success of OSHA's consultation program depends to a great extent on the voluntary cooperation of employers who request its services; the confidentiality of the consultant's report has long been viewed by OSHA and state consultants as essential to continued participation by employers in this important program.
NRCA could not agree more. Therefore, NRCA is opposed to OSHA's proposal that each employer be required to post a list of hazards identified by the consultant's report, and the dates for completion of corrective action, in a prominent place that is readily observable by all affected employees. It is remarkable that OSHA would propose such a disincentive to voluntary employer participation in the consultation program. Instead of rewarding employers for taking the initiative to improve workplace safety, it sets up the employer for harassment from disgruntled employees. OSHA's "making clear that the full text of the consultant's written report to the employer remains confidential" is absurd; OSHA can't have it both ways concerning consultation and confidentiality.


The proposed changes by OSHA to the consultation program run contrary to the intent of Congress in the Compliance Assistance Authorization Act. The consultation program is voluntary and incentive-based, and in this way it relates to enforcement under regulations that provide for a one-year exemption from general schedule programmed inspections for employers who complete a consultation visit and meet the requirements set in paragraph 1908.7(b)(4). Regrettably, OSHA's proposals are heavily tilted towards the punitive side of enforcement and would severely compromise the program.

NRCA opposes such changes to the consultation program and urges OSHA to suspend the rulemaking. It is recommended that OSHA rewrite proposed revisions to regulations for federally-funded on-site safety and health consultation visits and give members of the Occupational Safety and Health Consultation Programs maximum input. OSHA should also avoid attempting to draft regulations for issues that properly belong in Congress, i.e., mandating employee involvement where no mandate previously existed.

NRCA represents more than 4,500 members in all 50 states. They employ more than 100,000 workers and perform approximately 60 percent of all roofing work in America. NRCA was founded in 1886, and is one of the oldest trade associations in the country.

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