Interlocking regulatory and industrial relations: The governance of workplace safety

Administrative Law Review

Volumn 57, Issue 4, 2005, Pages 1071-1151

  Lobel, Orly ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 33644627330     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (393)

1. The concept of “field” invokes different socio-legal themes that inform the inquiry. First, the idea of field refers to Bourdieu’s work on the contextual application of a theoretical model to a particular social field. PIERRE BOURDIEU, IN OTHER WORDS: ESSAYS TOWARDS A REFLEXIVE SOCIOLOGY (1987). Second, it alludes to new institutional works on “organizational fields,” defining an organization as constituting an area or regime of institutional life, where regulatory agencies, corporations, groups and intermediaries operate. DIMAGGIO & POWELL (1983).
2. See, Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, forthcoming 89 MINN. L. REV. (2004);
3. Orly Lobel, Setting the Agenda for New Governance Scholarship, forthcoming 89 MINN. L. REV. (2004).
4. Pub. L. No. 91-596, 84 Stat. 1590 (1970).
5. See, DAVID R. MCCAFFREY, OSHA AND THE POLITICS OF HEALTH REGULATION (1982);
6. THOMAS O. MCGARITY & SIDNEY A. SHAPIRO, WORKERS AT RISK: THE FAILED PROMISE OF OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (1993).
7. GRAHAM K. WILSON, THE POLITICS OF SAFETY AND HEALTH: OCCUPATIONAL SAFETY IN THE UNITED STATES AND BRITAIN 43 (1985);
8. Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 13, 25 (1994). Numerous proposals were introduced to amend the authority granted to the agency, including proposals to abolish the agency altogether, yet Congress largely failed to pass any of these proposals because of committees that were generally supportive of labor (although Congress-at-large would have probably past the laws). Id.
9. Eugene Bardach & Robert A. Kagan, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS (1982). Termed “a congressional whipping boy”, senators have invoked the images of Gestapo and KGB in attaching OSHA. Editorial, Occupational Hazards, N.Y. Times, December 23, 2003. “Most employers would describe OSHA as the Gestapo of the federal government," says Rep. John A. Boehner (R-Ohio), a former plastics salesman. A bumper sticker expressing the feelings of many business owners proclaims, “OSHA is America's KGB: It Turns The American Dream Into A Nightmare.”
10. Sarah J. McCarthy, OSHA Targets Bridge Painters, Regulation, The Cato Review of Business & Government, http://www.cato.org/pubs/regulation/reg18v4f.html.
11. Karen L. Johnston, The Federal Mine Safety and Health Act of 1977: Is It Suffering from a Mid-Life Crisis?, 78 DENV. U. L. REV. 441, 452 (2001).
12. OSHA Oversight: Hearing Before the Senate Labor Comm., FDCH Cong. (1995) (statement by Sen. Kay Bailey Hutchison) (stating that "more than in any other area of federal government regulation, [OSHA] has come to symbolize what is wrong"); Lloyd Meeds, A Legislative History of OSHA, 9 GONZ. L. REV. 327, 327 (1974) (OSH Act is one of the "most highly praised" and "most vilified legislative endeavors of [the twentieth century]").
13. Darryl K. Brown, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, 149 U. PA. L. REV. 1295, 1304 (2001).
14. ILO, World Day for Safety and Health at Work, World of Work 26-27 (June 2004).
15. Every day, an average of 10,000 workers in the United States are seriously injured on the job. Every year, thousands of workers die and millions of workers are injured at work. NIOSH website http://www.cdc.gov/niosh/about.html#dsp. Worker Injuries/Illnesses/Fatalities for 2002. In 2002, occupational injury and illness rates were 5.3 cases per 100 workers, with 4.7 million injuries and illnesses among private sector firms. There were 5,524 worker deaths in 2002. Studies show that OSHA reports on occupational injury and illness are underestimated by as much as 69 percent. See, AFL-CIO Safety Report 2004. According to OSHA estimates an average of seventeen workers die each day. AMERICAN SOCIETY OF SAFETY ENGINEERS ENCOURAGED BY OSHA'S NEW POLICY ON ENHANCED SAFETY ENFORCEMENT DES PLAINES, IL (March 17, 2003). See also, Shapiro (“Assuming a total of only 2.5 million injuries per year, [a] conservative estimate translates into about 10,000 serious injuries each working day.”);
16. Emily A. Spieler, Perpetuating Risk? Workers' Compensation and the Persistence of Occupational Injuries, 31 HOUS. L. REV. 119 (1994) (OSHA estimates are lower than others).
17. Thomas O. McGarity & Sidney A. Shapiro, OSHA’s Critics and Regulatory Reform, 31 WAKE FOREST L. REV. 587, 592 (1996) (studies report that the Bureau of Labor statistics understate the level of occupational risks). Occupational injury estimates range from two to eleven million per year. Shapiro, describing estimates of annual occupational disease-related deaths from 50,000 to 210,000. Id.
18. Deaths among all foreign-born Hispanics increased in 2002 to 577 from 527 in 2001. AFL-CIO Report.
19. The Liberty Mutual Workplace Safety 2002 Index-NIOSH website. http://www.cdc.gov/niosh.Workers' compensation programs consumed $56 billion in 2000, represent the primary allocation of publicly mandated funds to safety and health in the workplace. While injury rates have not fallen in recent years, compensation costs have, because of changes in the definitions of eligibility. According to OSHA records, workplace injuries, illnesses and fatalities cost the nation $170 billion each year. OSHA report_.
20. David P. Mccaffrey, OSHA AND THE POLITICS OF HEALTH REGULATION 1 (1982).
21. Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 13, 39 (1994).
22. See, Paul Krugman, America's Failing Health, NYT August 27, 2004; Census Bureau report 2004.
23. Government spending on environmental protection is more than 10 times than that on workplace safety. Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 13, 39 (1994);
24. Sidney A. Shapiro, Substantive Reform, Judicial Review, and Agency Resources: OSHA as a Case Study, 49 Admin. L. Rev. 645, 646-50 (1997) (arguing against deregulation and regulatory reform as a solution to OSHA’s financial woes). The agency's appropriation budget is $457.5 million. The administration's 2004 budget proposed to cut 77 enforcement and related positions from the Occupational Safety and Health Administration, while adding two new staff members whose jobs would be to help industry comply with agency rules. If reelected, the Bush administration proposes to further cut staff and budget at OSHA.
25. Amy Goldstein & Sarah Cohen, Bush Forces a Shift In Regulatory Thrust: OSHA Made More Business-Friendly, Washington Post Sunday, August 15, 2004. Adjusting for inflation, the FY 2005 proposed OSHA budget represents a $6.5 million cut over FY 2004 appropriations. The Bush administration has proposed a 1.7 percent cut in OSHA's budget for this year. Death in the Workplace, NYT editorial Jan. 11, 2003.
26. In the fiscal year 2003, OSHA conducted 39,798 federal inspections (OSHA vital statistics, osha.gov).
27. TH ANNUAL REPORT ON OCCUPATIONAL SAFETY (2004) at afl-cio.org. By the end of the 1990s, OSHA had 200 fewer employees than in 1971 and about 800 fewer employees than in 1980. Sidney A. Shapiro, Substantive Reform, Judicial Review, and Agency Resources: OSHA as a Case Study, 49 ADMIN. L. REV. 645, 646 (1997). By the end of the 1990s, OSHA had 200 fewer employees than in 1971 and about 800 fewer employees than in 1980.
28. Bryan Virasami & Graham Rayman, Advocates Decry Workers' Deaths, Newsday June 15, 2004;
29. Sidney A. Shapiro & Randy Rabinowitz, Voluntary Regulatory Compliance in Theory and Practice: The Case of OSHA, 52 ADMIN. L. REV. 97 (2000) citing Work is Changing But Observers Wonder if OSHA is Changing With It, O.S.H. Rep. (BNA) 1513, at 1537 (May 19, 1999);
30. Ian Ayres & John Braithwaite, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992) (describing OSHA as never having had more than “a weak regulatory presence”).
31. Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61, 65-70 (1997). OSHA’s budget has remained constant since the 1980s, meaning that it lost approximately $100 million to inflation.
32. Sidney A. Shapiro, Substantive Reform, Judicial Review, and Agency Resources: OSHA as a Case Study, 49 ADMIN. L. REV. 645, 646 (1997).
33. Weil; LI Boden & DH Wegman, Increasing OSHA's Clout: Sixty Million New Inspectors, Working Papers, May/June:43-49, 1978,
34. Joseph Rees, REFORMING THE WORKPLACE: A STUDY OF SELF-REGULATION IN OCCUPATIONAL SAFETY 10 (1988).
35. Employers can be also prosecuted under state manslaughter statutes, which are not preempted by the federal OSH Act. However, such prosecutions are rare. Most local district attorneys consider workplace deaths to be under OSHA’s jurisdiction. See, David Barstow, 2:29 PM January 10, 2003, NYTimes.com.
36. Thomas O. Mcgarity & Sidney A. Shapiro, THE FAILED PROMISE OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 220 (1993).
37. See, e.g., Sunstein et. al, making these comparisons as examples of inconsistent penalties.
38. The labor-based Coalition for Occupational Safety and Health in Massachusetts described as “ludicrous” the assumption that there is an enforcement system of occupational safety and health in the United States, citing extremely low averages of penalties for accidents involving fatality. KSG Case Study, Regulatory Reform at OSHA C102-97-1371.0 p. 6-7.
39. Employers can be also prosecuted under state manslaughter statutes, which are not preempted by the federal OSH Act. However, such prosecutions are rare. Most local district attorneys consider workplace deaths to be under OSHA’s jurisdiction. See, David Barstow-2:29 PM ET January 10, 2003, NYTimes.com. Another debated factor is of course the need to prove liability, rather than a regime of strict liability.
40. In 1984 Congress raised maximum criminal fines. The legislative reform was part of a broader sentencing reform package to raise the maximum criminal fine from $10,000 to $500,000.
41. Cass Sunstein, Daniel Kahneman, David Schkade & Ilana Ritov, Predictably Incoherent Judgments, 54 STAN. L. REV. 1153 (2002);
42. Cary Coglianese, Bounded Evaluation: Cognition, Incoherence, and Regulatory Policy, 54 STAN. L. REV. 1217 (2002).
43. Sunstein et. al., id. at 1191 (“The most obvious set of anomalies involves OSHA. A serious violation of OSHA calls for a maximum penalty of $7000; unlawful importation of a wild bird calls for a penalty of more than triple that amount ($25,000). In fact, the penalties imposed by the Fish and Wildlife Service are systematically higher than those imposed by OSHA. It is extremely doubtful that the public would support that pattern of penalties, taken as a whole.”) A similar comparison is posed in relation to employment discrimination laws: “Offhand, most people are likely to think that it is worse to subject someone to life-threatening working conditions than to discriminate against them. It is reasonable to suppose that the category of occupational safety and health violations ranks higher than the category of unlawful discrimination. Hence it is odd that an act of discrimination can receive a penalty of $50,000 and more, whereas an OSHA violation is subject to a $7000 ceiling.” Id.
44. See, Orly Lobel, What Consumers Care About (unpublished work-in-progress). Medians were $4,000 vs. $100,000 respectively. Moreover, the maximum penalty demanded for an environmental violation was 16% of the maximum penalty by law ($25,000), whereas the maximum penalty demanded for worker-safety violations was 1429% of the maximum penalty by law ($7,000). I hope to elaborate the study with additional experiments in which people are primed in ways that they either envision themselves as owners or as workers and then ask about penalties and enforcement.
45. AFL-CIO Delegates Urge Congress to Act on Legislation to Award Workplace Safety Law, 23 O.S.H. Rep. (BNA) No. 20, at 527 (Oct. 13, 1993) quoting John Sweeny, President of Services Employees International Union, cited in Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 13, 41 (1994). The delegates summed up by declaring that something is very wrong in this country "when the quality of life of a jackass is valued more than the life of a worker." Id. See also, December 22, 2003 Uncle Sam: Worker's Lives Mean Sh*t http://www.leanleft.com/archives/002093.html (“the law says that killing your employee through a willful safety violation is less important than messing with wild burros”).
46. David Barstow, U.S. Rarely Seeks Charges for Deaths in Workplace, NY Times December 22, 2003.
47. Id.
48. The following data is sourced from state and federal OSHA information and the Bureau of Labor Statistics, and is based on an eight-month examination of workplace fatalities by The New York Times, http://www.nytimes.com/2003/12/22/national/22OSHA.html. Estimates of work-related death vary, and by many measurements, the official data made available by the Bureau of Labor Statistics under-estimates the number of fatalities.
49. Several studies have found that even after accidents occur, OSHA regularly fails to inspect the majority of the workplaces. Seventy-five percent of the 6,411 sites with a fatal or serious accident in 1994-1995 were not inspected by OSHA in the five years following the accident. Earle Eldridge, Study Links Job Deaths to OSHA Failure, USA Today, Sept. 5, 1995, at B1.
50. See Appendix 4.
51. In all of the jail sentences totaling less than 30 years, The Times found. Twenty of those years were from one case, a chicken-plant fire in North Carolina that killed 25 workers in 1991. The Environmental Protection Agency, in 2001 alone, obtained prison sentences totaling 256 years.” David Barstow, U.S. Rarely Seeks Charges for Deaths in Workplace, NY Times December 22, 2003. See also, Frontline Investigation.
52. Id. (Reporting that in the past two decades, there have been 17 states, the District of Columbia and three territories, with not a single prosecution for willful violations that killed 423 workers.) In the Frontline report, the number of cases that carried prison sentences was 16. frontline.com. Following the NYT-Frontline investigation, OSHA conducted its own self-study to check these numbers, and has concluded that these findings are generally accurate. Id.
53. Id.
54. AFL-CIO 13th Annual Death on the Job Report; Bryan Virasami & Graham Rayman, Advocates Decry Workers' Deaths, Newsday June 15, 2004 (“The maximum penalty for an OSHA violation is six months in jail. City fines are capped at $2,500 for some types of violations and $5,000 for others, but the actual fines often are substantially lower.”). The median fine for a willful violation that caused the death of workers is from 1982 until 1991 was $5,800, and has gone up since 1991 to $30,240. In 2003, only 404 of OSHA's 83,539 cited safety violations in were cited “willful.”
55. David Barstow, U.S. Rarely Seeks Charges for Deaths in Workplace, NY Times December 22, 2003.
56. For example, WorldCom has recently paid a $750 million in civil fines for misleading investors. Barstow, NYT Times, 2003. Compare Martha Stewart’s crime and fine.
57. The percentage of “downgraded cases” has been declining. See Appendix 1. California has been unique in its treatment of workplace death as a serious crime. California is one of the 21 states that administer occupational safety and health by a state plan. For the state/federal responsibilities under OSH Act, section 18(b)-(h) and section 23 encourage states to operate state health and safety plans, by 1) designating a state agency to run the plan and, 2) the agency is adequately funded and granted sufficient authority and, 3) the state plan is at least as effective as the federal standards. There are twenty five state plans that have been approved by the federal department of labor. California, unlike the federal government or the other states has engaged in aggressive pursuit of criminal employers. There are concrete changes, hiring safety professionals. Since 1990, California has pursued prosecution in 36.2 percent of the cases of workplace fatalities that were deemed the result of willful violation of safety violations. By contrast the federal government has prosecuted only 3.9 of the cases, and other state plans have an average of 4.6. See, Barstow, supra note_. On differences between states in enforcement activities, see also,
58. Alison Morantz, Does Devolution Injure Workers? (Unpublished Manuscript, on file with author).
59. GENERAL ACCOUNTING OFFICE, OCCUPATIONAL SAFETY & HEALTH: PENALTIES FOR VIOLATIONS ARE WELL BELOW MAXIMUM ALLOWABLE PENALTIES (1992).
60. Barstow, supra note_.
61. Median fines for fatalities caused by willful violation in the last decade have been 24,750. Approximately half the sum of the initial fines imposed by OSHA prior to negotiation with the employer. NY Times Investigation. See also, GAO report on fining;
62. Joseph A. Kinney, Why Did Paul Die?, NEWSWEEK, Sept. 10, 1990, at 11, 11
63. Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 13, 39 (1994). Kinney describes the American worker as five times more likely to die than a Swedish worker, and three times more likely to die than a Japanese worker. Id.
64. Fleming, S.H., Charting a New Course Toward Workplace Safety and Health, 7 JOB SAFETY AND HEALTH QUARTERLY 9, 10 (1996).
65. Thomas O. Mcgarity & Sidney A. Shapiro, WORKERS AT RISK supra note _ at 42.
66. See, e.g., KSG Case Program, Regulatory Reform at OSHA C102-97-1371.0 p. 3.
67. KSG Case Study, Regulatory Reform at OSHA C102-97-1371.0 p. 4.
68. The Impact of Federal Occupational Safety and Health Requirements on Small Business: Hearing Before the Subcomm. on Reg., Bus. Opportunities, and Energy of the House Comm. on Small Bus., 102d Cong. 38 (1992) (testimony of John B. Moran); Steven Bradford, Does Size Matter? An Economic Analysis of Small Business Exemptions From Regulation, 8 J. SMALL & EMERGING BUS. L. 1 (2004); In his first presidential campaign, Ronald Reagan repeatedly told the story of an Iowa mom and pop grocery store that was forced to shut down because it failed to comply with OSHA’s regulations of installing separate men’s and women’s restrooms. The only woman employee at the store, Reagan’s story told the audience, was the wife of the owner. KSG Case Study, Regulatory Reform at OSHA C102-97-1371.0 p. 6
69. John Mendeloff, The Role of OSHS Violations in Serious Workplace Accidents, 26 Journal of Occupational Medicine 353 (1984).
70. Lawrence Bacow, BARGAINING FOR JOB SAFETY AND HEALTH 40 (1980).
71. John Mendeloff, The Role of OSHS Violations in Serious Workplace Accidents, 26 Journal of Occupational Medicine 353 (1984). Mendeloff found that violations accounted for 13 to 19 percent of 645 fatality cases that he studied.
72. Centers for Disease Control & Prevention, Occupational Injury Panel, Occupational Injury Prevention, in Injury Control in the 1990s: A National Plan for Action 329 (1992)
73. Dean J. Haas, Falling Down on the Job: Workers’ Compensation Shifts from a No-Fault to a Worker-Fault Paradigm, 79 N.D. L. REV. 203 (2003).
74. For example, the costs of implementing OSHA’s vinyl chloride rules were estimated at $40 million while saving one life annually. John M. Mendeloff, THE DILEMMA OF TOXIC SUBSTANCE REGULATION 22 (1988).
75. Indus. Union Dep't., v. Am. Petroleum Inst., 448 U.S. 607 (1980);
76. Cotton Dust, Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981).
77. th Cong. See also generally, William S. Jordan, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking? 94 NW. U. L. REV. 393 (2000);
78. Jerry L. Mashaw and David L. Harfst, THE STRUGGLE FOR AUTO SAFETY (1990) (describing how ossification led to the NHTSA between 1977 and 1980 focusing on recalls rather than rule promulgation);
79. Jerry L. Mashaw, Reinventing Government and Regulatory Reform: Studies in the Neglect and Abuse of Administrative Law, 57 U. PITT. L. REV. 405 (1996).
80. W. Kip Vicusi, RISK BY CHOICE 78-100 (1983) (arguing that while OSHA regulates standards with little benefits, it does not regulate significant risks of carcinogenic substances.).
81. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, forthcoming MINN. L. REV. (2004).
82. Joseph Rees, REFORMING THE WORKPLACE: A STUDY OF SELF-REGULATION IN OCCUPATIONAL SAFETY 6 (1988) (quoting the President of the United Steelworkers of America at the Committee on Labor and Human Resources, Occupational Safety and Health Act 1970 (Oversight Hearings) 96 Congress, 2d sess. 1980, 745-51.
83. In its enforcement approach, compliance officers targeted worksites because of high injury rates, reports of fatalities, or complaints filed by workers about serious safety and health hazards. In case of a finding of violation, employers face sanctions such as fines. OSHA has been involved in extensive litigation on the validity of some of its central top-down regulations.
84. Don J. Lofgren, DANGEROUS PREMISES: AN INSIDER’S VIEW OF OSHA ENFORCEMENT (1989)
85. “If you see it, you cite it” is the OSHA inspectors’ rule under traditional enforcement. KSG Case Program, Regulatory Reform at OSHA C102-97-1371.0 p. 3.
86. Joseph Rees, REFORMING THE WORKPLACE: A STUDY OF SELF-REGULATION IN OCCUPATIONAL SAFETY 6 (1988) citing The President of the United Steelworkers of America at the Committee on Labor and Human Resources, Occupational Safety and Health Act 1970 (Oversight Hearings) 96 Congress, 2d sess. 1980, 745-51.
87. Eugene Bardach & Robert A. Kagan, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS 104-16 (1982).
88. Robert Kagan, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2003).
89. See also, William Simon, Solving Problems versus Claiming Rights; Susan Sturm, Second Generation Employment Discrimination; BRAITHWAITE, TO PUNISH OR PERSUADE.
90. Robert A. Kagan & John T. Scholz, The "Criminology of the Corporation" and Regulatory Enforcement Strategies, in ENFORCING REGULATION 67, 74 (Keith Hawkins & John M. Thomas eds., 1984);
91. John T. Scholz, Cooperation, Deterrence, and the Ecology of Regulatory Enforcement, 18 L. & SOC. REV. 179, 184 (1984).
92. See also, GAO 2004 Report, 26.
93. Lobel, The Renew Deal (2004); Sturm.
94. See e.g., Eugene Bardach & Robert A. Kagan, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS 64-65 (1982) (discussing short term and long term incentives to comply with regulation).
95. David Weil, Assessing OSHA Performance: New Evidence from the Construction Industry, 20 JOURNAL OF POLICY ANALYSIS AND MANAGEMENT 651 (2001).
96. Jean-Jacques Laffont & Jean Tirole, The Politics of Government Decision-Making: A Theory of Regulatory Capture, 106 QUARTERLY JOURNAL OF ECONOMICS, 1089 (1991);
97. Alison Morantz, (working paper 2003).
98. David Weil, Assessing OSHA Performance: New Evidence from the Construction Industry, 20 JOURNAL OF POLICY ANALYSIS AND MANAGEMENT 651 (2001).
99. Id. Congress has however limited OSHA’s inspections to firms employing ten or fewer persons.
100. See supra _. See also, Thomas O. Mcgarity & Sidney A. Shapiro, WORKERS AT RISK: THE FAILED PROMISE OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 26-27, 188-89 (1993)
101. Darryl K. Brown, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, 149 U. PA. L. REV. 1295, 1303 (2001).
102. See, e.g., Bryan Virasami & Graham Rayman, Advocates Decry Workers' Deaths, Newsday June 15, 2004.
103. Orly Lobel, Orchestrated Experimentalism in the Regulation of Work, 101 MICH. L. REV. 2146 (2003).
104. On “radical modernity” see, Anthony Giddens, THE CONSEQUENCES OF MODERNITY 50-52 (1990).
105. See also, Lobel, The Renew Deal (2004).
106. Fiona Haines; Neil Gunningham & Richard Johnstone, REGULATING WORKPLACE SAFETY: SYSTEMS AND SANCTIONS 17 fn 11 (1999) (firms of under 50 employees than in workplaces are more likely to have fatal accidents than firms with over 100 employees.)
107. BRAITHWAITE, PUNISH OR PERSUADE; OSHA reports.
108. Richard Johnstone, Claire Mayhew & Michael Quinlan, Outsourcing Risk? The Regulation of Occupation Health and Safety Where Subcontractors are Employed, 22 COMP. LAB. L. & POL'Y J. 351, 383 (2001);
109. J. Rebitzer, Job Safety and Contract Workers in the Petrochemical Industry, 34 IND. REL. 40-57 (1995).
110. Guido Calabresi & Philip Bobbitt, TRAGIC CHOICES (1978) (“It is far easier to trade dollars for lives when employees are perceived as statistics and not as real people”);
111. Braithwaite, Crime, Shame and Reintegration (1989) (managers distance themselves from harm that occurred);
112. Ralf Nader, Houston L. Rev. (firms engage in “pitiless abstraction” as a defense mechanism to distance themselves from risk and workers.)
113. Richard Johnstone, Claire Mayhew & Michael Quinlan, Outsourcing Risk? The Regulation of Occupation Health and Safety Where Subcontractors are Employed, 22 COMP. LAB. L. & POL'Y J 351, 383 (2001);
114. J. Rebitzer, Job Safety and Contract Workers in the Petrochemical Industry, 34(1) IND. REL. 40-57 (1995).
115. Orly Lobel, The Slipperiness of Stability: The Private Employment Agency and Flexible Work Arrangements, 10 TEX. WES. L. REV. 109 (2003);
116. Orly Lobel, Class and Care: The Roles of Private Intermediaries in the In-home Care Industries in the United States and Israel, 24 HARV. W. L. J. 89 (2001).
117. Brennan v. OSHRC, 513 F.2d 1032, 1038 (2nd Cir. 1975); United States of America v. Pitt-Des Moines, Inc., 168 F.3d 976 (7th Cir. 1998).
118. Johnson Co. v. OSHARC, 516 F.2d 1081 (7th Cir. 1975); Johnstone et. al, supra note_ . OSHA’s policy is to cite the employer whose employees are exposed to the hazard (“the exposing employer”). When there is a specific duty of care, OSHA may also cite the employer who actually causes the hazard (“creating employer”), the employer who has general supervisory authority over the worksite (“controlling employer”) and the employer responsible for correcting the hazard at the worksite (“correcting employer”). Id.; OSHA Instruction, CPL 2-0.124, Multi-Employer Citation Policy, Oct. 12, 1999.
119. Allen S. Hammond, Reflections on the Myth of Icarus in the Age of Information, 19 SANTA CLARA COMPUTER & HIGH TECH. L.J. 407, 426 (2003) citing Richard W. Boss, Ergonomics for Libraries, 37 Library Tech. Reports, Nov. 1, 2001, at 1.
120. OSHA estimates that ergonomic injuries are understated by at least a factor of two. Id.
121. 5 U.S.C. §§ 801-802. Under the CRA, agencies are required to send all regulations to Congress for review sixty days before they take effect. President Bush signed the resolution repealing the rule, as one of the first activities of the new administration. The ergonomics standards required employers to redesign workplace in order to protect workers against muscular-skeletal injuries, such as repetitive-stress injuries and carpal tunnel syndrome. The Clinton administration viewed the ergonomic standard, applying to millions of workplaces, at an estimated cost of $4.5 billion for employers, as the most important intervention government could take to protect the safety of the largest number of workers. Two months after Bush took office, Congress, making first use of its new power to review regulations, repealed the ergonomics standard. See also,
122. Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963 (2001);
123. Amy Goldstein & Sarah Cohen, Bush Forces a Shift In Regulatory Thrust: OSHA Made More Business-Friendly Washington Post Sunday, August 15, 2004.
124. In 1995 OSHA estimated reduction workers' compensation costs of $14 billion and over half million fewer injuries. Repetitive injury claims cost fifty percent above average injury claims. The National Academy of Science reported that “conservative estimates” about the cost of repetitive injury are $50 billion between $45 and $54 billion annually. See, Dean J. Haas, Falling Down on the Job: Workers’ Compensation Shifts from a No-Fault to a Worker-Fault Paradigm, 79 N.D. L. REV. 203 (2003) citing The National Academy of Science, Musculoskeletal Disorders and the Workplace: Low Back and Upper Extremities, ES-1 (2001); Occupational Health & Safety, Ergonomic Draft Eases Burden, Allows More Flexibility for Employers, 24 Occupational Health & Safety Letter No. 6 (Apr. 23, 1995).
125. OSHA 2003-2008 management plan, http://www.osha.gov/StratPlanPublic/strategicmanagementplan-final.html.
126. Id.
127. Thomas J. Kniesner & John D. Leeth, Abolishing OSHA, 4 Regulation 46 (1995);
128. William J. Maukestad & Charles Helm, Promoting Workplace Safety and Health in the Post-Regulatory Era: A Primer on Non-OSHA Legal Incentives that Influence Employer Decisions to Control Occupational Hazards, 17 N. KY. L. REV. 9 (1989).
129. See e.g., Kip Viscusi, Reforming OSHA: Regulation of Workplace Risks, in REGULATORY REFORM: WHAT ACTUALLY HAPPENED 234, 259 (L. Weiss et al. eds., 1986);
130. Sidney A. Shapiro & Randy Rabinowitz, Voluntary Regulatory Compliance in Theory and Practice: The Case of OSHA, 52 ADMIN. L. REV. 97, 101-102 (2000) (developing an economic model that “assumes that economic actors behave perfectly rational”).
131. Hazard pay articles.
132. Occupational safety and health in the United States has largely been taken out of the tort system by replacing individual liability with no-fault workers' compensation state programs along with the institution of the preventative federal safety administration of OSHA. After the worker compensation “deal” has been put into play, “the visible nature of the employer's half of the bargain ($56 billion in payments in 2000) overshadows the employee's half (release of tort liability) because it is not measured, rendering it invisible. As a result, a view has emerged that workers' compensation payments constitute social welfare.” Dean J. Haas, Falling Down on the Job: Workers’ Compensation Shifts from a No-Fault to a Worker-Fault Paradigm, 79 N.D. L. REV. 203 (2003).
133. See also, Thomas O. Mcgarity & Sidney A. Shapiro, WORKERS AT RISK ch. 2 (1993);
134. Thomas O. McGarity & Sidney A. Shapiro, OSHA's Critics and Regulatory Reform, 31 WAKE FOREST L. REV. 587 (1996). Reforming worker compensation benefits is not a sufficient way however to address the challenges of worker safety in the new economy. See, Spieler, supra note_;
135. Martha T. McCluskey, The Illusion of Efficiency in Workers' Compensation "Reform," 50 RUTGERS L. REV. 657 (1998). Coverage of injuries is low; significant numbers of injuries are unreported. The value of unreported injuries is much higher than over reported compensation. Costs are regularly shifted to workers and insurers. Id. In the context of worker safety, even using purely economic calculations, it is widely recognized that both ex post liability and compensation for harm and ex ante safety regulation and governance are needed because of unequal capabilities and power distribution, errors in enforcement, and advances in knowledge and organization. See e.g.,
136. Patrick W. Schmitz, On the Joint Use of Liability and Safety Regulation, INT. REV. OF L. AND ECON. 371 (2000).
137. Spieler, supra note _; Elinor P. Schroeder & Sidney A. Shapiro, Responses to Occupational Disease: The Role of Markets, Regulation, and Information, 72 GEO. L.J. 1231 (1984).
138. Spieler, supra note_ at 155 (1994)
139. Id.
140. Id. at 155 (1994) (citing a 1988 study of the W.E. Upjohn Institute for Employment Research).
141. Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996);
142. Susan Rose-Ackerman, Progressive Law and Economics--and the New Administrative Law, 98 YALE L.J. 341, 367 (1988);
143. Kenneth Arrow et al.; Amartya Sen, For example, several scholars have challenged the calculations of on the famous Morall table, which points to high costs with low benefits of a myriad of social regulations. Lisa Heinzerling, Regulatory Costs of Mythic Proportions, 107 YALE L.J. 1981 (1998);
144. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613 (1995). Those who want less regulation often insist on the scientific nature of their calculations, while those advocating more regulation tend to focus on the political character of expertise.
145. Albert O. Hirschman, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY 12 (1991);
146. Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. CHI. L. REV. 407, 434-37 (1990);
147. Cass R. Sunstein, Congress, Constitutional Movements, and the Cost-Benefit State, 48 STAN. L. REV. 247, 261-62, 300-01 (1996) (discussing the health-health paradox and potential remedies through cost-benefit analysis);
148. Lester B. Lave, THE STRATEGY OF SOCIAL REGULATION 15-17 (1981). Importantly, such analysis is not confined to a simple dollars-and-cents paradigm; social considerations and externalities are increasingly recognized as a necessary component of the calculus. The need to articulate and calculate costs and benefits can also help overcome the cognitive limitations of individuals by broadening perspective and producing “sensible priority-setting.” See generally,
149. Matthew D. Adler & Eric A. Posner, Rethinking Cost-Benefit Analysis, 109 YALE L.J. 165, 245-46 (1999) (providing examples of situations where the outcome of traditional cost-benefit analysis should be disregarded in favor of other goals). Cost-benefit analysis can also force agencies to become more transparent in their evaluation and regulatory activities. See, e.g., Milton Russell, The Making of Cruel Choices, in
150. P. Brett Hammond & Rob Coppock, VALUING HEALTH RISKS, COSTS, AND BENEFITS FOR ENVIRONMENTAL DECISION-MAKING 15, 18 (1990). Hahn & Sunstein, at 1502;
151. Clayon P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. PENN. L. REV. 1027, 1072 (1990). It has also been argued to democratize administrative action by allowing a more informed debate and by reducing the risks of “the anti-democratic” threat of regulation.
152. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 55-64 (1995) (proposing cost-benefit analysis as one part of a broad initiative to make regulation more democratic);
153. Cass R. Sunstein, Cost-Benefit Default Principles, 99 MICH. L. REV. 1651, 1661 (2001). Cf. McGarity & Shapiro, supra note _ at 627 (arguing that cost-benefit analysis holds the same threat to democracy).
154. Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 172-75, 178-90 (1988).
155. Performance-based or market-based strategies are different from governance-based strategies. Cass Sunstein has called this the cost-benefit state – a performance standard regime in which private industry has the freedom to choose the most cost-effective and suitable means to achieve the regulatory goals. Market based approaches, for example in the area of environmental regulation, includes emissions trading regimes. In worker safety a parallel injury trading regime would naturally be more controversial and ethically problematic. Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996);
156. Susan Rose-Ackerman, Progressive Law and Economics--and the New Administrative Law, 98 YALE L.J. 341, 367 (1988).
157. Other terminologies include “process-based requirements” or “management-based rules”. See also, Lobel, The Renew Deal;
158. Cary Coglianese & David Lazer, Management-Based Regulation: Prescribing Private Management to Achieve Public Goals, 37 Law & Soc. Rev. 691 (2003).
159. Lobel, The Renew Deal, supra note _.
160. Cite, perhaps include their tables in the Appendix and highlight those requirement – they assign high costs, and the number 0 as the benefits.
161. Orly Lobel, Rethinking Traditional Alignments: Privatization and Participatory Citizenshi, forthcoming CLARE DALTON ED., PROGRESSIVE LAWYERING, GLOBALIZATION AND MARKETS: RETHINKING IDEOLOGY AND STRATEGY (2005).
162. See, Shapiro, supra note_.
163. Baradach & Kagan, supra note_;
164. Ian Ayres & John Braithwaite, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE 31 (1991).
165. I find that a significant majority of consumers (73.5%, p < 0.0001) indicate that they care much more about wok conditions than about environmental preservation. Moreover, I find that 73.5% of consumers are willing to pay at least 5% more for products manufactured under good labor standards, and 21% of consumers are even willing to pay a 20% premium to ensure proper work conditions. Conversely, 47% of consumers indicate they will not pay for a product that was manufactured under poor labor standards if a substitute exists. Orly Lobel, What Do Consumers Care About? (work-in-progress, on file with author) see Appendix 2 for preliminary results. See also, Richard Freeman’s book; Martin Sandbu, Preference for Process; Douglass Kyssar, Product/Process Divide, HARV. L REV.
166. Safety experts are widely in agreement that in many cases lives can be saved by increased enforcement. Barstow, supra note _.
167. ILO, World Day for Safety and Health at Work, WORLD OF WORK 26-27 (June 2004).
168. The two other goals are the annual reduction of occupational hazards and the strengthening of the agency’s internal infrastructure.
169. John Braithwaite, TO PUNISH OR PERSUADE: ENFORCEMENT OF COAL MINE SAFETY (1985).
170. Fiona Haines, CORPORATE REGULATION: BEYOND "PUNISH OR PERSUADE" 9 (1997) ("For a range of reasons, there has been a shift in regulatory theory away from promoting extensive reliance on criminal law measures to advocating a regulatory mix of punishment and persuasion.").
171. st century, see, Thomas Friedman, THE LEXUS AND THE OLIVE TREE: UNDERSTANDING GLOBALIZATION (1999).
172. Lobel, The Renew Deal, supra note_; William H. Simon, THE COMMUNITY ECONOMIC DEVELOPMENT MOVEMENT: LAW, BUSINESS, AND THE NEW SOCIAL POLICY 41 (2002).
173. Id.
174. In the past decade, the average growth in funds for voluntary compliance strategies has been over 9 percent per year. See Appendix 3. In less than a decade, the percentage of the compliance assistance expenditures has increased by approximately 8 percent, while the enforcement activities spending have fell by 6 percent from the total budget. Funding for other activities remained relatively stable. By contrast, enforcement activities had an average of 2.5 percent growth. GAO report, p. 22. The OSHA state-plan states have similarly been expanding such programs and there is in fact some evidence that these states have been relying on cooperative programs to a greater extent than the federal OSHA. See, Morantz; the state-plan states association report (2004).
175. Merit worksites are those who have not achieved all necessary requirements for Star but demonstrated potential to achieve the Star status. Demonstration worksites test alternative ways to achieve safety excellence, which may lead to change in VPP Star criteria.
176. Voluntary Protection Programs to Supplement Enforcement and to Provide Safe and Healthful Working Conditions; Notice of Changes, 51 Fed. Reg. 33, 669-70 (1986). From 1993 to 2003 VPP has increased from 122 worksites to 1,024, a 739 percent increase. In 2003, Voluntary Protection Programs involved 223,275 employees in the federal VPP at 732 sites and in more than 180 industries; 437,515 employees in state VPPs, covering 287 sites and 147,366 employees. In 2003, 92 percent of all VPP worksites had “Star” status. Only 1 percent of VPP participants carry demonstration status. The program has been expanding dramatically and over the next few years, OSHA plans to expand VPP worksites from 1000 to 8000. The majority of participating firms have more than 200 employees. See, GAO report p. 11. In 2004, OSHA introduced three new VPP initiatives. VPP Challenge is designed as a roadmap program that will help employers, particularly small employers, achieve VPP status regardless of their current level of safety and health. VPP Corporate helps firms that already have VPP worksites expand their participation to additional worksites. Finally, VPP Construction, expected to be implemented in 2005, is designed to help construction worksites, especially temporary worksites, to attain VPP status, by adjusting the requirements.
177. OSHA reports that lost workday rates for VPP participants are significantly below industry rates, ranging from 35 percent to 92 percent below national average. Neil Gunningham & Richard Johnstone, REGULATING WORKPLACE SAFETY: SYSTEMS AND SANCTIONS 83 (1999). The agency relies primarily on the Bureau of Labor Statistics data, as well as reports from individual employers.
178. Thomas O. Mcgarity & Sidney A. Shapiro, WORKERS AT RISK (1993).
179. Small businesses are defined as worksites with fewer than 250 workers, and no more than 500 workers companywide.
180. The program is also referred to at times as “the State Consultation Program”.
181. As OSHA plans to expand SHARP it will include oversight on the part of state consultants. GAO Report 2004.
182. 29 C.F.R. § 1908.7(c)(4) (1996)
183. A trade association consists of employers in the same industry; professional associations consist of practitioners in a given professional (e.g., engineers). In 2003, OSHA formed 37 national alliances; 76 regional and area alliances. AFL-CIO Safety Report. See, e.g.., National Federation of Independent Business Aligns with OSHA Agreement June 14, 2004 OSHA website.
184. See, OSHA.gov.
185. GAO Report 2004, p 17. An example of one objective of an OSHA alliance in the health care industry is the development and incorporation of materials for business school curricula about the competitive advantages and value of occupational safety programs.
186. Susan Hall Fleming, OSHA at 30: Three Decades of Progress in Occupational Safety and Health, 12 JOB SAFETY & HEALTH QUARTERLY 23, 28-29 (Spring 2001).
187. These courses are usually open to the public, although most of the students are OSHA employees. OSHA also uses 33 universities as Education Centers that teach 16 of the Training Institute’s most popular courses. These centers train mostly non-agency personnel. OSHA plans to increase the number of people trained by its training programs by 10 percent per year. GAO Report, p. 20.
188. In 2004, OSHA funded training grants totaling $10.5 million. In 2003, OSHA funded grant totaling over $11 million, training 4,940 students at the OSHA Training Institute; 15,871 students at 20 OSHA Education Centers; 65,000 students under OSHA training grants and 280,785 students trained through the OSHA outreach training program.
189. GAO 2004 Report, supra note_ at 43.
190. http://www.osha.gov/dcsp/vpp/index.html. According to OSHA reports, injuries and illnesses in cooperative programs at-large have been cut by 47 percent at worksites engaged in cooperative relationships with the agency; GAO 2004 Report, supra note_ at 25-26.
191. Emily A. Spieler, Perpetuating Risk? Workers' Compensation and the Persistence of Occupational Injuries, 31 HOUS. L. REV. 119, 155 (1994)
192. http://www.osha.gov/dcsp/vpp/index.html.
193. Rees, supra note_ (Cal-OSHA data).
194. GAO 2004 Report, supra note_.
195. GAO Report 2004, supra note _.
196. Id. at 26-27.
197. Id.
198. Id. at 15.
199. osha.gov (quoting Tommy Lee, Safety Director, W.S. Bellows Construction Company).
200. GAO Report 2004, supra note _ at 25-27.
201. Id.
202. GAO Report, 27.
203. GAO Report, 27. The GAO report also mentions shifts in union attitudes to support management in promoting safety. An interviewed safety director for a union involved in a partnership reported that the union supported disciplinary action against workers that did not comply with safety rules.
204. www.vpppa.org. The Program is coordinated by the Voluntary Protection Programs Participants' Association.
205. GAO Report, 28.
206. See, supra note _ and Appendix _.
207. osha.gov.
208. GAO 2004 Report, supra note_ at 28.
209. Id. at 29.
210. Id.
211. OSHA "Summits" With Friends While Hispanic Workers Continue to Die. www.confinedspace.org.
212. OSHA also reviews participants’ yearly self-evaluations, and must recertify, including conducting an onsite review, the VPP worksite every 1 to 5 year, depending on their VPP status.
213. GAO Report supra note_ at 24.
214. In 2003, out of OSHA’s overall $450 million budget, the agency spent $126 million (almost 30%) on its compliance assistance programs and activities. Enforcement activities consumed $254 million.
215. www.asse.org. Founded in 1911, ASSE is the largest professional non-profit safety organization providing consultation to employers interested in improving their safety performance.
216. Confined Space website (labor-based).
217. Amy Goldstein & Sarah Cohen, Bush Forces a Shift In Regulatory Thrust: OSHA Made More Business-Friendly, Washington Post Sunday, August 15, 2004.
218. Id.
219. GAO Report, 18.
220. Goldstein & Cohen, supra note_.
221. th Congress 1999). The Bill was a collaboration among by a group of representatives that rank high on ACU rating of conservative congresspersons and representatives that rank high on ADA liberal quotients. See, Roger L. Ashby, OSHA’s Voluntary Protection Program (unpublished manuscript, on file with author).
222. *** add my file on COSHRA, the Comprehensive Occupational Safety and Health Reform Act.
223. 29 CFR 1900.1, Docket no, S&H-0027.
224. In the following sections, I describe the abandonment of the Cooperative Compliance Program, integrating sanction and incentive and the failure to require participation. www.osha.gov/SLTC/safetyhealth/index.htm.
225. National Performance Review, The New OSHA-Reinventing Worker Safety and Health (May 1995); Bill Clinton & Al Gore, The New OSHA: Reinventing Worker Safety and Health 1 (1995); Department of Labor, OSHA, The New OSHA, http://www.osha-slc.gov/html/Reinventing/index.html>
226. National Performance Review, The New OSHA-Reinventing Worker Safety and Health (May 1995); Bill Clinton & Al Gore, The New OSHA: Reinventing Worker Safety and Health 1 (1995); Department of Labor, OSHA, The New OSHA, http://www.osha-slc.gov/html/Reinventing/index.html>
227. President's Memorandum on Regulatory Reform, 31 Weekly Comp. Pres. Doc. 363 (Mar. 4, 1995).
228. KSG Case, Regulatory Reform at OSHA C102-97-1371.0.
229. KSG Case Program, Regulatory Reform at OSHA C102-97-1371.0.
230. Id. at 8-10.
231. Id.
232. Id.
233. Id.
234. Id. Officers described a plant that was making strong efforts to reform its safety practices. When the site was re-visited, the company safety directors, plants officials and union representatives all argued: “No matter what we do, you don’t care. You’re just going to bang us. And the corporate is just going to take the attitude, ‘the hell with them. Let’s fight them from henceforth.’” Id.
235. Id.
236. Id. For example, a grocery store was cited for not posting warning about handling chemicals that were on site and for electrical violations. The store corrected these violations. Yet the leading cause of injury was from repetitive motions of cashier registers, causing tendonitis and carpal tunnel syndrome, not chemicals or electrical wiring. (interviews with Maine officers. Another major cause of injury in the grocery store was slips in the produce department cause by loose grapes on floor…).
237. On the struggles for an ergonomics standard, see supra text to footnote_.
238. Id.
239. John Mendeloff, Maine 200 Report; on Maine 200, www._.
240. Harvey Simon, Regulatory Reform at OSHA, KSG Case Study (1997).
241. Harvey Simon, Regulatory Reform at OSHA, KSG Case Study (During the first year of the program, the 182 participating workplaces identified 95,800 hazards and abated 55,200, compared with the 36,780 hazards cited by OSHA inspectors in Maine over the previous eight years). While all studies of the pilot program indicate a decrease in injury rates, there is disagreement about the exact causal effects of the different components of the pilot, combining new targeting measures with cooperation requirements. See, Marcus Stanley (claiming that the success was mostly attributable to the new selection system); Mendeloff (pointing to changes in worker compensation eligibility that contributed to the decrease in claims).
242. John Mendeloff, Maine 200 Report (also pointing to the fact that the program is resource intensive and that the targeting of the 200 firms was not necessarily the worst firms, but rather the largest.);
243. Malcom K. Sparrow, THE REGULATORY CRAFT: CONTROLLING RISKS, SOLVING PROBLEMS, AND MANAGING PROBLEMS 252-53 (2000). Other studies evaluated the program were more cautious in their evaluation.
244. KSG Case C102-97-1373.0
245. In these pilots, states devised different ways for compiling target lists. Maine and Colorado used workers compensation data provided by the state labor departments. New York used the "OSHA 200 Data Survey Initiative"; Wisconsin combined both worker compensation data and the OSHA survey data. Maine combined the worker compensation data with general industry statistics. John Leonard Watson, The "New" OSHA: Reinventing Worker Safety and Health, NATURAL RESOURCES AND ENVIRONMENT (1998).
246. OSHA Maine 200 Application, cited in Malcom K. Sparrow, THE REGULATORY CRAFT: CONTROLLING RISKS, SOLVING PROBLEMS, AND MANAGING PROBLEMS 86-87 (2000).
247. The nationalized targeted the top four hazards in the construction industry that cause the highest number of fatalities – falls, electrocution, crushing and striking injuries. John Leonard Watson, The "New" OSHA: Reinventing Worker Safety and Health, NATURAL RESOURCES AND ENVIRONMENT (1998).
248. Sparrow, supra note_ at 252-53.
249. The CSHP would have to meet the standard established in the OSHA's 1989 Safety and Health Program Management Guidelines. Id.
250. CHAMBER OF COMMERCE v. DEPARTMENT OF LABOR, 174 F.3d 206, 335 U.S. App. D.C. 370, 18 O.S.H. Cas. (BNA) 1673, 1999 O.S.H.D.
251. Id. Similarly, the court rejected OSHA’s claims about forum of appeal, and its own definition of standards versus regulation. OSHA objected that the directive should not be subjected to judicial review by the court of appeals but by the district court because it was not a regulation. OSHA argued that the directive was not a “standard” because it did not address a “specific and already identified hazard.” it lacked “the formal attributes of the typical standard,” in particular, participation in the program was strictly voluntary; the directive was not backed by the threat of a legal sanction, and it did not preempt any regulation imposed by a state. The court stated “”[W]e are forced by the jurisdictional structure and form of the OSH Act to characterize the Directive either as a "standard" or as a "regulation." Although neither moniker is entirely apt, we conclude that the Directive is a "standard" within the meaning of § 652(8) because it effectively obligates employers, under penalty of certain inspection, to adopt a CSHP, and thereby imposes upon employers new safety standards more demanding than those required by the Act or by any pre-existing regulation implementing the Act. And because the Directive is a standard, we have jurisdiction under § 655(f) to consider the Chamber's petition to review it.”
252. Chamber of Commerce, supra note_. See, also Sparrow, supra note_ at 252-53.
253. John Leonard Watson, The "New" OSHA: Reinventing Worker Safety and Health, Natural Resources and Environment (1998).
254. Id.
255. Id. citing Memorandum to John Watson from Byron R. Chadwick, Regional OSHA Administrator (July 2, 1997).
256. Chamber of Commerce, supra note_.
257. 5 U.S.C. § 553; §§ 556, 557.
258. Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 37 (D.C.Cir.1974); Chrysler Corp. v. Brown, 441 U.S. 281, 301, 99 S.Ct. 1705, 1717, 60 L.Ed.2d 208 (1979); Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like--Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992).
259. Batterton, 648 F.2d at 707.
260. Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877-881 (3d Cir.1982); cf. SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947). See also, Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463 (1997);
261. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992);
262. Robert W. Hamilton, Procedures for the Adoption of Rules of General Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 CAL. L. REV. 1276 (1972).
263. Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (SSA Claims Manual without legal effect); Roberts v. Cameron-Brown Co., 556 F.2d 356, 362 & n. 11 (5th Cir.1977) (HUD handbook not intended to have force of law); Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir.1983) (SSA claims manual without impact on substantive rights); Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 988 (9th Cir.1980); Gatter v. Nimmo, 672 F.2d 343, 347 (3d Cir.1982) (VA manuals without force of law); First State Bank of Hudson County v. United States, 599 F.2d 558, 564 (3d Cir.1979), (FDIC Manual was not substantive but procedural rule), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 38 (3d Cir.1976) (Soil Conservation Service manuals are internal operating procedures); Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir.1974) (handbooks are non-legislative rules); Avoyelles Sportsmen's League, 715 F.2d; Batterton, 648 F.2d.
264. American Trucking Association v. United States, 688 F.2d 1337, 1341 (11th Cir.1982), rev'd on other grounds, 467 U.S. 354, 104 S.Ct. 2458, 81 L.Ed.2d 282 (1984).
265. 5 U.S.C.A. § 553.
266. See, Malcom K. Sparrow, THE REGULATORY CRAFT: CONTROLLING RISKS, SOLVING PROBLEMS, AND MANAGING PROBLEMS 252-53 (2000).
267. CHAMBER OF COMMERCE v. DEPT. OF LABOR, OSHA 174 F.3d 206, 335 U.S. App. D.C. 370, 18 O.S.H. Cas. (BNA) 1673, 1999 O.S.H.D. (CCH) P 31,787.
268. OSHA also argued that the Chamber does not have standing to sue because, absent a legal penalty for non-participation, employers suffer no cognizable injury.
269. Chaney v. Heckler, 718 F.2d 1174, 1185-88 (D.C.Cir.1983), cert. granted, 467 U.S. 1251, 104 S.Ct. 3532, 82 L.Ed.2d 838 (1984); Center for Auto Safety v. National Highway Traffic Safety Administration, 710 F.2d 842, 845-46 (D.C.Cir.1983). See also, APA 5 U.S.C. § 555(c); OSH Act § 657(g)(2). At times inspection decisions are also considered even less than a procedural rule. They are understood as an “investigative act.” Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir.1983); D.C. Circuit in FTC Line of Business Report Litigation 595 F.2d 695.
270. 5 U.S.C.A. §§ 551(4), 555(c); Occupational Safety and Health Act of 1970, § 8, 29 U.S.C.A. § 657.
271. STURM v. Department of Labor 300 F.3d 867, 353 U.S.App.D.C. 245, 19 O.S.H. Cas. (2002) UNITED STATES DEPARTMENT OF LABOR v. KAST METALS CORPORATION 744 F.2d 1145, 12 O.S.H. Cas. (BNA) 1045, 1984-1985 O.S.H.D. (CCH) P 27,093.
272. STURM v. Department of Labor 300 F.3d 867, 353 U.S.App.D.C. 245, 19 O.S.H. Cas. (2002) UNITED STATES DEPARTMENT OF LABOR v. KAST METALS CORPORATION 744 F.2d 1145, 12 O.S.H. Cas. (BNA) 1045, 1984-1985 O.S.H.D. (CCH) P 27,093.
273. Stoddard Lumber.
274. Id. citing CPL 2.25B(E)(4)(b).
275. “Although the plan departed from a previous inspection formula, see CPL 2.25B(E)(4)(c), at 3, change alone is insufficient to satisfy the twin prongs of departure and substantial impact found in Brown Express, 607 F.2d at 702.”
276. U.S. Dept. of Labor v. Kast Metals Corp.A.La., 1984, 744 F.2d 1145, 12 O.S.H. Cas. (BNA) 1045, 1984-1985 O.S.H.D. (CCH) P 27,093C (REVERSED and REMANDED). See also, Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229 (D.C.Cir.1980).
277. See, Malcom K. Sparrow, THE REGULATORY CRAFT: CONTROLLING RISKS, SOLVING PROBLEMS, AND MANAGING PROBLEMS 254 (2000) (“If the regulated community did not appreciate novel programs based on structured discretion, OSHA figured, they could have it the old way.”)
278. Malcom K. Sparrow, THE REGULATORY CRAFT: CONTROLLING RISKS, SOLVING PROBLEMS, AND MANAGING PROBLEMS 254 (2000).
279. Edward Rubin, Its Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95 (2003).
280. Id.
281. The general duty of section 5(a)(1) requires employers to “furnish to each of his employees, employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." The general duty has been interpreted to cover only those areas in which there is no relevant specific standard. Courts have developed exceptions to this general rule, based primarily on the direct knowledge of an employer that particular safety standard is inadequate to protect workers against the hazard it is intended to address or when the conditions of employment are such that the safety standard will not adequately deal with the hazards to which the employees are exposed. United Auto Workers v. General Dynamics Land Systems Division, 815 F.2d 1570, at 1577 (D.C. Cir.), cert. denied, 484 U.S. 976 (1987).
282. Edward Rubin, Its Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95 (2003).
283. OSHA Instruction CPL 2.90; Sidney Shapiro and Randy Rabinowitz; Paper Company Agrees to Pay $872,220 Fine, Conduct Corporate-Wide Plant Safety Audit, Daily Lab. Rep. (BNA), Aug. 1, 1988.
284. OSHA Instruction CPL 2.90; Sidney Shapiro and Randy Rabinowitz; Paper Company Agrees to Pay $872,220 Fine, Conduct Corporate-Wide Plant Safety Audit, Daily Lab. Rep. (BNA), Aug. 1, 1988.
285. Sidney Shapiro & Randy Rabinowitz.
286. 29 U.S.C. S 658(a) (1988). At its early days, OSHA interpreted the OSH Act as mandating citations with fines and precluding on-site, sanction-free consultation by OSHA representatives. Initially, the discretion of OSHA inspectors was legally constructed as very limited at the point of substantive definition of violation and the issuance of citations, but very broad in targeting for inspection and investigation and making informal bargains that reduce of penalties after citation. Benjamin W. Mintz, OSHA: History, Law, and Policy 335-60 (1984).
287. KSG Case, Regulatory Reform at OSHA C102-97-1371.0 p. 4. General Accounting Office, Informal Settlement of OSHA Citations: Comments on the Legal Basis and other Selected Issues (1994).
288. See, supra _; Appednix 1.
289. David Barstow, U.S. Rarely Seeks Charges for Deaths in Workplace, NY Times December 22, 2003 citing OSHA Field Manual.
290. E.g., Simpson Paper Agrees to OSHA Settlement, Will Pay $300,000, Create Safety Position, Daily Lab. Rep. (BNA), July 11, 1990 (firm required in the settlement agreement to create a safety manager position).
291. Rubin, supra note_.
292. Robert Kagan, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2003).
293. John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or Utopian?, 46 UCLA L. Rev. 1727 (1999);
294. Neil Gunningham & Darren Sinclair, Regulatory Pluralism: Designing Policy Mixes for Environmental Protection, 21 LAW & POL'Y 49 (1999);
295. Neil Gunningham & Joseph Rees, Industry Self-Regulation: An Institutional Perspective, 19 LAW & POL'Y 363, 394 (1997).
296. Email correspondence with Malcom Sparrow, Sept. 2004.
297. Michael Levine, Politics and Polarity: The Limits of OSHA Reform 3 REGULATION 33 (1979).
298. Robens Committee, Report of the Committee on Health and Safety at Work 1970-72 p. 66 (1972)
299. Neil Gunningham & Richard Johnstone, REGULATING WORKPLACE SAFETY: SYSTEMS AND SANCTIONS 8-9 (1999);
300. See also Occupational Safety and Health Act 1984, http://www.safetyline.wa.gov.au/pagebin/pg004928.htM;
301. See also, Robert Kagan, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2003);
302. Neil Gunningham, Robert A. Kagan, & Dorothy Thornton, SHADES OF GREEN: BUSINESS, REGULATION, AND ENVIRONMENT (2003);
303. Braithwaite, To Punish or Persuade, supra note_; Japanese article.
304. Don J. Lofgren, DANGEROUS PREMISES: AN INSIDER'S VIEW OF OSHA ENFORCEMENT 203-204 (1989).
305. Lawrence S. Bacow, BARGAINING FOR JOB SAFETY AND HEALTH 121 (1980).
306. David R. Mccaffrey, OSHA AND THE POLITICS OF HEALTH REGULATION 40 (1982) (describing the resources committed by unions occupational health as “trivial”. In 1976, the Health Research Group studied the involvement of unions in health and safety, concluding that “worker health is still not a top priority issue with many international unions…In all areas, from doctors and hygienists to engineers and lawyers, the numbers of health experts working for unions is distressingly low”. Id.
307. Allan Freedman, Workers Stiffed, WASH. MONTHLY, Nov. 1992, at 27
308. Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 13, 30 (1994).
309. OSH Act section_. The OSH Act also includes a provision against retaliation for whistle-blowing.
310. Leone v. Mobil Oil Corp., 523 F.2d 1153 (D.C. Cir. 1975). Unlike the OSH Act, The Federal Mine Safety and Health Act of 1977 does require employers to pay worker representatives for time spent accompanying health inspectors. the MSHA specifically requires payment. 30 U.S.C. § 813(f).
311. Louise Sadowsky Brock, Overcoming Collective Action Problems: Enforcement of Workers Rights, 30 U. MICH. J.L. REF. 781 (1997).
312. OSHA Directives, CSP 03-01-001.
313. Id.
314. Randy S. Rabinowitz & Mark M. Hager, Designing Health and Safety: Workplace Hazard Regulation in the United States and Canada, 33 CORNELL INT'L L.J. 373 (2000);
315. Gregory R. Watchman, Safe and Sound: The Case for Safety and Health Committees Under OSHA and the NLRA, 4 CORNELL J.L. & PUB. POL'Y 69 (1994).
316. Paul C. Weiler, Governing the Workplace: Employee Representation in the Eyes of the Law, in BRUCE E. KAUFMAN & MORRIS M. KLEINER, EMPLOYEE REPRESENTATION: ALTERNATIVES AND FUTURE DIRECTIONS 81, 87 (1993).
317. David Weil compared the enforcement effects of mandated safety and health committees in Oregon in 1999. In the unionized workplace he found that enforcement strengthened considerably with the introduction of safety committees. In non-union workplaces, safety increased but to a lesser degree. David Weil, Are Mandated Health and Safety Committees Substitutes for or Supplements to Labor Unions?, INDUSTRIAL AND LABOR RELATIONS REVIEW 339 (1999). Eleven states have legislated safety committee requirements, although the legality under federal law of such requirements remains unclear.
318. Matthew W. Finkin, Employee Representation Outside the Labor Act: Thoughts on Arbitral Participation, Group Arbitration, and Workplace Committees, 4 U. PA. J. LAB. & EMP. L. (2002).
319. But see, David Fairris, Do Unionized Employers Reappropriate Rent Through Worsened Workplace Safety?, EASTERN ECONOMIC JOURNAL 17 (1995) (finding higher injury rates at newly unionized workplaces);
320. Leon Grunberg et al., The Relationship of Employee Ownership and Participation to Workplace Safety, 1996 ECONOMIC AND INDUSTRIAL DEMOCRACY 221 (finding that employee ownership, including coops and the ESOPs, do no better than other workplaces and sometimes had worse safety performances. Authors attribute these findings to the precarious economic conditions of the employee-owned firms they surveyed).
321. David Weil, Enforcing OSHA: The Role of Labor Unions, 30 INDUSTRIAL RELATIONS 20 (1991).
322. OSHA inspections: Process and outcomes in programmed inspections versus complaint-investigated inspections, 8 EMPLOYEE RESPONSIBILITIES & RIGHTS JOURNAL 245 (1995). This finding can also explain some counter-intuitive findings, that workers’ compensation claims can be in some areas higher in a unionized context than in a non-unionized context.
323. David Weil, Enforcing OSHA: The Role of Labor Unions, 30 INDUSTRIAL RELATIONS 20 (1991).
324. David Weil, Building Safety: The Role of Construction Unions in the Enforcement of OSHA, 13 JOURNAL OF LABOR RESEARCH 121 (1992). Weil concludes that “a de-facto “two-tiered” system of regulation has emerged in the construction industry. For the union sector, OSHA represents a real force in ensuring the enactment of safety and health standards, particularly in larger sites. For non-union workers, however, OSHA has become the “toothless tiger” commonly cited by its critics.” Id.
325. Joseph Rees, REFORMING THE WORKPLACE: A STUDY OF SELF-REGULATION IN OCCUPATIONAL SAFETY 4 (1988).
326. Id.
327. Id.
328. Id.
329. Id.
330. Id.
331. Dennis Devaney, Electromation and DuPont: The Next Generation, 4 CORNELL J.L. & PUB. POL'Y 3, 16 (1994) (reporting that the National Safety Council estimated in 1993 that 56% of nonunion workplaces had some form of employee safety committees).
332. Gregory R. Watchman, Safe and Sound: The Case for Safety and Health Committees Under OSHA and the NLRA, 4 CORNELL J.L. & PUB. POL'Y 65 (1994).
333. GAO Report 13.
334. Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1542 (2002). See, COSHRA supra _. H.R. 1280, 103d Cong. (1993); H.R. 3160, 102d Cong. (1991).
335. See, Orly Lobel, Agency and Coercion, supra note _ at _.
336. Randy S. Rabinowitz & Mark M. Hager, Designing Health and Safety: Workplace Hazard Regulation in the United States and Canada, 33 CORNELL INT'L L.J. 373, 431 (2000) (requiring joint safety committees was "strongly opposed by the business community").
337. Kenneth A. Kovach et al., OSHA and the Politics of Reform: An Analysis of OSHA Reform Initiatives Before the 104th Congress, 34 Harv. J. on Legis. 169 (1997);
338. Randy S. Rabinowitz & Mark M. Hager, Designing Health and Safety: Workplace Hazard Regulation in the United States and Canada, 33 Cornell Int'l L.J. 373 (2000).
339. Kenneth A. Kovach et al., OSHA and the Politics of Reform: An Analysis of OSHA Reform Initiatives Before the 104th Congress, 34 HARV. J. ON LEGIS. 169, 175 (1997);
340. Teamwork for Employees and Managers Act of 1997: Hearing on S. 295 Before the S. Comm. on Labor and Human Resources, 105th Cong. 49 (1997) (testimony of Jonathan P. Hiatt, Gen. Counsel, AFL-CIO) (calling for “employee involvement” only in the context of “an independent voice");
341. A. B. Cochran, III, We Participate, They Decide: The Real Stakes in Revising Section 8(a)(2) of the National Labor Relations Act, 16 BERKELEY J. OF EMP. & LAB. L. 458 (1995).
342. Section 2(5) NLRA.
343. Id.
344. See, Lobel, Agency and Coercion, supra note_.
345. Electromation, Inc. & Int'l Bd. of Teamsters, Local Union No. 1049, AFL-CIO & "Action Committees" 309 N.L.R.B.990 No. 163 (1992) enforced, 35 F.3d 1148, 147 L.R.R.M. 2257 (7th Cir. 1994). See also, General Foods Corp., 231 N.L.R.B. 1232, 1235 (1977) (employee committees were not labor organizations and did not constitute a section 8(a)(2) violation).
346. See also, Michael H. LeRoy, Employer Domination of Labor Organizations and the Electromation Case: An Empirical Public Policy Analysis, 61 GEO. WASH. L. REV. 1812 (1993)
347. E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893 (1993); See also, Polaroid Corp., 329 N.L.R.B. 424 (1999).
348. Section 8, NLRA, supra _.
349. Simmons Indus., 321 N.L.R.B. 228 (1996); NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959)
350. Vons Grocery Co., 320 N.L.R.B. 53 (1995); Sears, Roebuck & Co., 274 N.L.R.B. 230 (1985).
351. Du Pont; Simmons Indus., 321 N.L.R.B. 228 (1996). Crown Cork & Seal Co., 334 N.L.R.B. No. 92 (2001); General Foods Corp., 231 N.L.R.B. 1232, 1235 (1977).
352. In 1995, Michael LeRoy examined twenty-three nonunion work teams. Leroy found that about half of the teams only made suggestions to management, not “dealing with” employers to constitute a section 2(5) violation. Similarly, Leroy found that most teams focused on the process and quality of production. Leroy finds that “the work teams surveyed here were very different from company unions of the 1930s,” describing three-fourths of the teams in compliance with Electromation and DuPont. In a second study, 1997, LeRoy surveyed six Fortune 500 companies with almost eighty nonunion teams. This time Leroy found that over one-half of the team were “dealing with” management, yet still the primary focus of most teams was on processes of production. Over one-half also consider safety and work schedules. Less than one-quarter also considered pay and other employment issues. LeRoy describes his study as indicating "no evidence of company unions.” Michael H. LeRoy, Employee Involvement Programs and Section 8(a)(2): A Survey of Employer Practices, in SAMUEL ESTREICHER, EMPLOYEE REPRESENTATION IN THE EMERGING WORKPLACE: ALTERNATIVE/SUPPLEMENTS TO COLLECTIVE BARGAINING 141 (1998).
353. See, Orly Lobel, Agency and Coercion, supra note_; Edward Lawler et al., Employee Involvement and Total Quality Management: Practices and Results in Fortune 500 Companies 119 (1992) (over 80% of large companies have one or more forms of employee involvement). Richard Freeman and Joel Rogers found that over half of the workplaces that surveyed had some form of employee involvement program and over a third had an established employee participation committee to discuss problems with management on a regular basis. Freeman and Rogers find that a large proportion of non-unionized committees regularly discuss issues such as wages and benefits
354. Lobel, Agency and Coercion, Id. at_.
355. Jeffrey Pfeffer, Competitive Advantage through People: Unleashing the Power of the Workforce, Harvard Business School Press 113 (1994);
356. Richard E. Wokutch, WORKER PROTECTION, JAPANESE STYLE: OCCUPATIONAL HEALTH AND SAFETY IN THE AUTO INDUSTRY (1992).
357. Rogers & Freeman; Dunlop Report.
358. David G. Blanchflower & Richard B. Freeman, Unionism in the United States and Other Advanced OECD Countries, 31 INDUS. REL. 56 (1992) (advocating a “new brand of unionism" that gives greater emphasis to worker voice).
359. Commission on the Future of Worker-Management Relations, U.S. Dep't of Labor, Report and Recommendations (1994) (available at www.ilr.cornell.edu/library/e_archive/)
360. Lobel, Agency and Coercion, supra note_; Dunlop Commission Report, supra note _.
361. Dunlop Commission Report, supra note _.
362. Id.
363. Id.
364. The commission emphasized however that this would be “incidental”.
365. Id. at 26-27.
366. TEAM differed from the Dunlop Commission’s recommendations to facilitate employee involvement programs (EIPs) in three respects. First, the TEAM Act’s specific reforms to Section 8(a)(2) of the NLRA differed from the Commission’s proposal. The Dunlop Commission recommended that Congress clarify Section 8(a)(2) of the NLRA to facilitate the growth of employee involvement programs (EIPs). The Commission stressed that such a clarification should allow EIPs to discuss the terms and conditions of employment if such discussions were “incidental” to the work of the EIP. The Commission also recommended that the law should maintain a ban on company dominated labor organizations. In contrast, the TEAM Act did not restrict the discussion of terms and conditions of employment, and it did not address employer domination. Senate Democrats believed the TEAM Act permitted the formation of company unions so long as the employers did not engage in collective bargaining. Second, the Dunlop Commission recommended other reforms to facilitate EIPs by ensuring that participating workers would not suffer employer retaliation and that they would retain their NLRA rights. It suggested to provide protections against workers who want to initiate employee participation or speak openly against an existing program. The TEAM Act did not address any of these other EIP-specific reforms. Finally, the Dunlop Commission proposed changing Section 8(a)(2) as an integral part of a larger labor market reform agenda. The TEAM Act did not address the larger labor issues. H.R. 743, 104th Cong. (1996); S. 295, 104th Cong. (1996); Rafael Gely, Whose Team Are You on? My Team or My TEAM?: The NLRA's Section 8(a)(2) and the TEAM Act, 49 RUTGERS L. REV. 323, 366-69 (1997);
367. COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, U.S. DEP'T OF LABOR & U.S. DEP'T OF COMMERCE, FACT FINDING REPORT (1994).
368. Orly Lobel, Agency and Coercion in Labor and Employment Relations: Four Dimensions of Power in Shifting Patterns of Work, 4 U. PA. J. LAB. & EMP. L. 12 (2001);
369. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 HARV. L. REV. 1379 (1993);
370. Abigail Evans, Cooperation or Co-optation: When Does a Union Become Employer-Dominated Under Section 8(a)(2) of the National Labor Relations Act?, 100 COLUM. L. REV. 1022 (2000);
371. Sanford M. Jacoby, Reckoning with Company Unions: The Case of Thompson Products, 1934-1964, 43 INDUS. & LAB. REL. REV. 19 (1989).
372. William B. Gould IV, Employee Participation and Labor Policy: Why the Team Act Should Be Defeated and the National Labor Relations Act Amended, 30 CREIGHTON L. REV. 3 (1996) (arguing that employee participation and committees should be permitted by reforming the NLRA prohibition). See also, H.R. 1280, 103d Cong. (1993); H.R. 3160, 102d Cong. (1991);
373. Daniel J. Gifford, Labor Policy in Late Twentieth Century Capitalism: New Paradoxes for the Democratic State, 26 HOFSTRA L. REV. 85 (1997).
374. Charles B. Craver, Mandatory Worker Participation is Required in a Declining Union Environment to Provide Employee with Meaningful Industrial Democracy, 66 GEO. WASH. L. REV. 135 (1997).
375. TEAM at 34. The TEAM Act also failed to address the Dunlop Commission’s recommendation that it should be an unfair labor practice for an employer to establish a new EIP or manipulate an existing one to frustrate employee efforts to unionize. Senator Kennedy offered an amendment that “the TEAM Act would not apply where there are organizational activities among employees,” but the Senate Committee on Labor and Human Resources voted the amendment down. Id. at 20. Final Report: The Dunlop Commission on the Future of Worker-Management Relations, at 26. The Commission also noted that some employees participating in EIPs may take on activities that involve managing or directing other workers or assuming decision-making authority. The Commission feared that these employees would lose their NLRA-protected rights because of the law’s “rigid definitions of supervisors and managers on the one hand, and employees covered by the NLRA on the other.” Id. at 28. It therefore recommended “a single, simplified managerial employee definition that includes statutory supervisors and managers but not (1) members of work teams and joint committees to whom managerial and/or personnel decision-making authority is delegated or (2) professionals and para-professionals who direct their less skilled co-workers.” Id. The Dunlop Commission viewed all of its proposed labor reforms as interrelated. These other reforms included simplifying the union certification process, providing timely injunctive relief for discriminatory actions, and providing resolution mechanisms for first contract disputes. The TEAM Act failed to address any of these other matters.
376. Michael H. LeRoy, Can TEAM Work? Implications of an Electromation and DuPont Compliance Analysis for the TEAM Act, 71 NOTRE DAME L. REV. 215 (1996);
377. Michael H. LeRoy, "Dealing With" Employee Involvement in Nonunion Workplaces: Empirical Research Implications for the TEAM Act and Electromation, 73 NOTRE DAME L. REV. 31 (1997)
378. See, e.g, Cass Sunstein, Group Judgments: Deliberation, Statistical Means, and Information Markets (unpublished manuscript, on file with author) (“[I]incentives make all the different; well-function groups take steps to ensure that on normative questions as on factual ones, people feel free to disclose what they believe to be true”). See also, FISHKIN & ACKERMAN, DELIBERATION DAY.
379. Id.
380. The AFL-CIO 13th Annual Death on the Job Report (2004).
381. Jonathan Schmidt pointed out to me that similar ideas have been debated in the context of economic development in Latin America, see, HERNANDO DE SOTO, THE OTHER Path (arguing that Peru's over-regulated economy misses law’s opportunity to truly democratize the informal economy).
382. See also, Martha Minow, PARTNERS, NOT RIVAL: PRIVATIZATION AND THE PUBLIC GOOD (2003).
383. For example, OSHA unlike equivalent agencies in other domains and in other countries, does not have powers to shut down plants, cease operations; unions cannot use “hot cargo” powers to stop production in case of safety violations.
384. See, Orly Lobel, Agency and Coercion; Feminist theorists.
385. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1124 (1980).
386. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1124 (1980).
387. Jane J. Mansbridge, BEYOND ADVERSARY DEMOCRACY (1980). Jane Mansbridge has advocated moving “beyond adversary democracy”, claiming that the American people are “starved” for unitary, consensus-based participatory democracy. Mansbridge distinguishes between unanimity and agreement, claiming that the latter is possible even while the former is scarce.
388. Lobel, THE RENEW DEAL, supra _ at.
389. See also, Orly Lobel, Regulating Coexistence in the New Economy: Nonprofit Human Service Providers in a Workforce Development Approach (working paper 2004).
390. Lobel, THE RENEW DEAL, supra _ at.
391. Lobel, The Renew Deal, supra note_.
392. Lobel, Agency and Coercion, supra note_ (Table); Orly Lobel, Between Individualism and Solidarity: Collective Efforts for Social Reform in the Heterogeneous Workplace, forthcoming Vol. 14 RESEARCH IN THE SOCIOLOGY OF WORK (2004).
393. SELZNIK, TVA AND THE GRASSROOTS, 3.