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 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.
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
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
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
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
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.