Ergo Rule II: Does DOL Have an Open Mind?

Labor representatives comment on the Bush administration's nominee for the post of the solicitor of labor and whether they think the administration is keeping an open mind about issuing a new ergonomics standard.

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"After the Secretary of Labor and the OSHA administrator, it''s the most important post with respect to OSHA rulemaking and enforcement policy." That''s how Washington, D.C., attorney Stephen Yohay, of Arent, Fox, Kintner, Plotkin & Kahn PLLC, describes the job of solicitor of labor, the Department of Labor''s (DOL) top lawyer.

Eugene Scalia, the Bush administration''s nominee for the post, makes it harder for labor groups to believe the administration has an open mind on issuing a new ergonomics standard, as stakeholders prepare for new public hearings on how to tackle repetitive motion injuries.

That''s because as a lawyer, Scalia represented the National Coalition on Ergonomics, United Parcel Service Inc., and Anheuser-Busch Cos., the most vehement opponents to the Clinton administration''s failed ergonomics standard. In addition, Scalia authored Wall Street Journal and Cato Institute articles where he strongly criticized the ergo rule.

"I think the hearings are window dressing," said Michael Wright of the United Steelworkers of America, in part because of the Scalia choice.

The AFL-CIO''s Peg Seminario, said her union has not yet decided whether to oppose Scalia''s Senate confirmation, "but we have real concerns about Mr. Scalia, particularly in the area of ergonomics where he has been very active." She questioned whether there would be any OSHA enforcement of ergonomic injuries under the general duty clause, if Scalia becomes the new solicitor of labor.

But William Ament, a consultant at Organization Resources Counselors, had a different view of Scalia and the top legal perch at DOL.

"I think he would be a fair and forthright solicitor," said Ament. "As the department''s top lawyer he won''t be setting policy, he''ll be interpreting legal issues. I think he can keep the two things separate."

by James Nash

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