Amid charges of "betrayal" and "bad faith," the U.S. Occupational Safety and Health Administration (OSHA) presented its draft of the final steel erection standard to the Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC) in Washington, D.C. yesterday.
In a rare display of unity, SENRAC's labor and management representatives joined in accusing OSHA of breaking its commitment to the negotiated rule making process because OSHA made significant changes to SENRAC's consensus standard. SENRAC delivered its proposal to OSHA four years ago, and SENRAC members believe the final standard released yesterday bears little resemblance to their proposal.
"OSHA appears to be giving no weight to the careful deliberations of SENRAC," said Eric Waterman, vice president of membership of the National Erectors Association. "OSHA is now reneging on its commitment -- this is fundamentally unfair."
Stephen Cooper, safety director of the Iron Worker's International Union of North America, went even further. He complained that SENRAC members worked long and hard to reach a consensus before signing the document. "If you say, 'well we don't think you did what we wanted you to do,' then forget it," said Cooper. "There's no more negotiated rulemaking -- it's a joke."
At the center of the controversy are the standard's fall protection provisions. According to John Molovich of the United Steel Workers of America (USWA) SENRAC called for requiring employers to provide fall protection for deckers and connectors working 15 to 30 feet above a platform. But SENRAC made the use of the protection optional up to 30 feet, while OSHA has changed the final standard to require that workers use the protection at 15 feet.
Molovich was the only one of the 20 SENRAC members present at the meeting who said he supported OSHA's right to make changes to the final standard.
Even OSHA's own official representative to SENRAC, Bart Chadwick, said he did not think it was fair to compromise the process by trying to secure what some think is a better standard.
Perhaps the most effective criticism of OSHA was a lawyer-like 79-page brief submitted by Jim Cole, general secretary of the Ironworkers International Union of North America.
Cole argued that OSHA was permitted to make drastic changes to SENRAC's consensus standard only if the public record contained a "groundswell of public outcry or a significant amount of new evidence that SENRAC did not consider." Cole's brief attempted to document that there was in fact very little public reaction or new evidence presented in the public record.
OSHA Administrator Charles N. Jeffress responded to the barrage of criticism by praising SENRAC for its efforts and assuring members they had produced a "significant improvement" on the existing standard.
Jeffress defended OSHA's final right to issue a standard that provides the best possible protection for American workers. But he also promised to examine Cole's brief with care.
While the negotiated rulemaking process was intended to speed up OSHA rule making, and reduce the acrimony it often produces, the agency's seven-year old experiment with SENRAC appears to have failed on both counts.
A number of stakeholders present at the meeting said privately that if OSHA goes ahead with its final standard, expensive and time-consuming litigation was almost certain to delay final implementation of the steel erection rule.
William Shuzman, with the Steel Institute of New York, was one stakeholder who was not afraid to put this warning on the record in his testimony at the meeting.
"Is there any doubt," said Shuzman, "that years of litigation will be the result of this attempt to undermine and thwart the negotiated rulemaking process?"