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OSHA Urged to Pick up Its Pen for Poultry Workers

Today, Nebraska Appleseed, the Southern Poverty Law Center, and several allied organizations sent a letter to OSHA requesting a response to their petition for a rulemaking on work speed in poultry and meatpacking plants. The groups originally submitted the petition to OSHA over a year ago, and it’s been radio silence ever since. Meanwhile, tens of thousands of workers, most low-income and socially vulnerable, continue to work in conditions that lead to crippling musculoskeletal disorders.

The workers’ advocates who submitted the petition had the misfortune of dropping it in the mail just days before the 2013 government shutdown, so at the time some commentators cut the agency some slack, noting that 90 percent of the agency’s staff—including everyone in the standard-setting office—were laid off. But that excuse is no longer relevant, and evidence of the need for the rule continues to pile up. 

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Center for Progressive Reform Announces New Executive Director Matthew Shudtz

The Board of Directors of the Center for Progressive Reform today announced the selection of Matthew Shudtz as Executive Director of the 12-year-old organization. Shudtz, who succeeds Jake Caldwell, has been Acting Executive Director of CPR since July of this year.

Shudtz joined CPR’s staff in 2006 as a Policy Analyst, and was subsequently promoted to Senior Policy Analyst. His work has focused on OSHA and related workplace health and safety regulations and toxic chemical control and reform. He has authored or co-authored more than 20 CPR reports and publications including, “At the Company’s Mercy: Protecting Contingent Workers from Unsafe Working Conditions,” “Winning Safer Workplaces: A Manual for State and Local Policy Reform,” and  “Reforming TSCA: Progressive Principles for Toxic Risk Regulation.” He holds a J.D. from the University of Maryland Francis King Carey School of Law and a B.S. in Earth and Environmental Engineering from Columbia University.  

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Obama’s Path to Progress: Protecting Workers from Deadly Silica Dust

In 1997, when OSHA first placed the silica standard on its to-do list, Titanic and Good Will Hunting were hits at the box office and the Hanson Brothers’ “MMMBop” was topping the charts. Pop culture has come a long way since then. OSHA, however, has only made modest progress on the silica rule. It took until 2013—sixteen years—for OSHA to get from saying “we plan to create a new standard” to actually proposing the text. Now the agency is reviewing the mountain of public input submitted during the 11-month open comment period. Two million workers in the U.S. are exposed to the carcinogenic dust and public health experts estimate that every year more than 7,000 workers develop silicosis, and more than 200 die as a result.

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Big OSHA Fine for Wayne Farms Poultry Processor a Win for Workers

Today, brave workers at a Wayne Farms poultry slaughterhouse have a reason to celebrate a milestone in their struggle for justice. With help from lawyers at the Southern Poverty Law Center, they filed a complaint with OSHA in April. They blew the whistle on conditions that included dangerous work speeds that caused serious injuries, as well as denying subsequent medical treatment, and the firing of workers who reported their concerns.

The agency released some results from its inspection, proposing significant fines against Wayne Farms for the deplorable conditions the workers continue to face.

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Statement of CPR Executive Director Matt Shudtz on OSHA's Call for Dialogue on Chemical Exposure

Today, OSHA announced that it is seeking new ideas from stakeholders about preventing workplace injuries caused by exposure to harmful chemicals. The agency wants to identify new ways to develop Permissible Exposure Limits (PELs), the basic standards for reducing air contaminants.  

CPR's Executive Director Matthew Shudtz responded to the development:

It’s great that Dr. Michaels is continuing to seek new ways to eliminate or manage chemical hazards in the workplace.  OSHA has been relying on outdated standards for too long. But rulemaking is not the only way to address these hazards.  OSHA needs to use the enforcement tools it has available, especially the General Duty Clause.  With the General Duty Clause, OSHA can cite employers who are lagging behind industry standards for chemical exposure.

Last year, OSHA released new web-based tools to help employers voluntarily limit the exposure of workers to hazardous substances. In a blog Shudtz noted that the agency could use the General Duty Clause within the OSH Act to compel low-road employers to protect workers from harmful chemical exposure. According to the blog:

As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous. Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s. In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit. Since then, OSHA has initiated and finalized just one new PEL – as part of a comprehensive standard for hexavalent chromium exposure – but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed. In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA’s standards don’t do enough to protect workers.

The broad recognition that workers face significant hazards even when chemical exposures are below OSHA’s PELs presents an interesting question about employers’ duty to protect their workers. Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC). Under the GDC, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

As interpreted by the Occupational Safety and Health Review Commission (OSHRC) and federal courts, OSHA must prove four elements to establish a GDC violation:

1.     Employees are exposed to a hazard;
2.     The hazard is recognized by the employer or the industry generally;
3.     The exposure has caused or is likely to cause death or serious physical injury; and
4.     There is a feasible means of abating the hazard.

Elements (1) and (3) are not generally significant hurdles when dealing with toxic chemicals. The difficult points for OSHA to prove are that a chemical hazard is “recognized” and that there are feasible means of abatement. But with the new annotated table of exposure limits, employers are on notice that exposures below OSHA’s PELs and above other organization’s OELs present hazards that are recognized by the occupational health community and the industry generally. And the new substitute-chemical toolbox may provide feasible means of abating those hazards.


GDC cases are not easy matters for OSHA’s enforcement staff or the agency’s lawyers, so we can’t expect to see a flood of new cases in the wake of today’s announcement. However, selective use of this enforcement theory could create a ripple effect that would ensure better protections for the many workers who are exposed to dangerous levels of toxins.

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SBA Office of Advocacy Continues to Carry ‘Water’ for Big Business

Apparently undeterred by all the bad press it has received lately, the Small Business Administration’s (SBA) Office of Advocacy has cast its controversy-attracting lightning rod ever higher in the air by issuing a feeble comment letter attacking the Environmental Protection Agency’s (EPA) pending rulemaking to define the scope of the Clean Water Act (“Waters of the US rule”).  The letter is just the latest evidence that the SBA Office of Advocacy has no interest in working to advance the unique interests of real small businesses—in accordance with its clear legal mandate—but instead is entirely focused on seeking to block those rules that are opposed by large business interests and their conservative allies.  

In its recent scathing report, the Government Accountability Office (GAO) raised several disturbing questions about whether and to what extent the SBA Office of Advocacy is actually fulfilling its statutory mission of serving as a “voice for small businesses within the federal government.”  Of immediate relevance here, one of the key issues identified in the report was that the SBA Office of Advocacy was never able to provide any evidence of small business input it received to inform its decision intervene in rules or the substance of its comments letter.  In other words, the SBA Office of Advocacy could never prove that its interventions were every actually prompted by small business concerns.  As described below, the SBA Office of Advocacy’s comment letter on the EPA’s Waters of the US rule only adds to these questions—and its provides additional impetus for needed reforms and increased congressional oversight to ensure that the agency is not wasting taxpayer money and helping large businesses to the direct detriment of the small firms they are supposed to be helping.

 

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The Real Price of Chicken Nuggets: Obama Administration Turns Its Back on Poultry Processing Workers; Crippled (Literally) by a Thousand Cuts

Only in Washington, D.C. is nothing portrayed as something.  Out in the nation, not so much.  And so it was late last week that the Obama Administration took a victory lap for not making life even more miserable for some of the most abused workers in America. Yup, despite the best efforts of the Occupational Safety and Health Administration (OSHA), which is supposed to watch out for workers’ well-being, the U.S. Department of Agriculture (USDA), the life-long booster for corporate agriculture, gave a swift kick in the pants to all those low-wage people of color who make the chicken nuggets and chick filets that now dominate what’s for dinner. 

Up until last Thursday, USDA was claiming loudly to anyone who would listen that it doesn’t “do” worker protection.  Then the agency did a full 180 in the middle of the road, and now claims it has addressed workers’ concerns with the help of its new best friends at OSHA. Those workers are the folks who toil at workplaces so miserable that many states make it a crime to film inside them. 

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Tweaks to Bad Chicken Processing Rule Leave Workers and Consumers in the Lurch; Rule Hurtles Out of the White House Door at Record Speed

We’ve received the bad news from impeccable sources that the much-criticized USDA poultry processing rule has passed White House review at record speed—20 days, count ‘em!—and will be released late this afternoon.  As usual, the process of OIRA review was shrouded in secrecy, with affected stakeholders filing in and out of the White House to talk about a rule they had never seen to taciturn OIRA officials who had long since cut a deal with USDA.  Of course, the late afternoon release is designed to forestall criticism in the same news cycle that will report the White House spin on the rule.  But we know enough about it to make some basic observations.

Our sources informed us that the rule will allow companies to have processing lines that run at the speed of 140 birds per minute—that’s 2.3 chickens every single second, although it’s also the current USDA maximum, allowing USDA to claim that the new rule doesn’t make matters any worse. 

OSHA, which was deeply involved in negotiations with USDA, clearly views this outcome as a great victory because it reduces by 35 birds/minute the original and outlandish USDA proposal that line speeds increase to 175 birds/minute.  But saving workers from the furthest reach of bad conditions without beginning to address their documented daily misery is incremental change, not victory. The plain truth is that study after study, including a recent NIOSH report, have documented severe ergonomic injuries at line speeds significantly below 140 birds/minute.  OSHA didn’t review those studies dispassionately in a rulemaking that would honor its mission of protecting workers from harm.  Instead, it played a numbers game with USDA under the watchful eye of White House staffers, leaving an already bad working situation to fester. 

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USDA Submits Poultry Rule to OMB: The Facts

Yesterday, USDA submitted its draft final rule on poultry slaughter “modernization” to OMB for formal review.  This rule, as regular readers of CPR Blog will remember, would remove USDA inspectors from poultry slaughtering facilities, transfer some of their food safety and quality control duties to plant employees, and allow the plants to increase their line speeds to an astonishing 175 birds per minute.  On top of that, the rule allows each plant to develop its own testing protocols for E. coli, salmonella, campylobacter and other food-safety concerns.  It’s the foxes guarding the henhouse, for sure.

Along with many of our allies in the worker health and safety and food safety communities, we have been urging USDA since early 2012 to go back to the drawing board with this ill-advised rule.  USDA published its proposed rule in January 2012 without consulting with its inspection advisory committee, without holding public meetings to solicit other stakeholders’ views, and – especially galling – without seeking input from OSHA.

In the two and a half years since USDA proposed the rule, we’ve seen a steady stream of bad news for the proponents of the rule:

  • April 2013: NIOSH releases an interim Health Hazard Evaluation (HHE) report on a poultry slaughter facility that was attempting to get special permission to adopt the “modernized” inspection scheme before the final rule goes into effect.  Interim HHE reports rarely surface publicly, but this one had such striking results that its release was inevitable.  Among other findings, NIOSH discovered that 42 percent of worker-participants had evidence of carpal tunnel syndrome and 41 percent of worker-participants worked in jobs above industry standards for hand activity and force.

  • April 2013: Kimberly Kindy, writing in the Washington Post, highlights the tragic story of a USDA inspector who died of kidney and lung failure potentially linked to the chemical brew that was used to disinfect chicken at the plant where he worked.  Plants are likely to increase the use of these chemicals if the rule goes forward.

  • September 2013: GAO criticizes USDA for failing to thoroughly evaluate the performance of pilot projects that USDA had initiated to test the validity of its “modernization” proposal.  In its characteristically dry tone, GAO concluded: “USDA may not have assurance that its evaluation of the pilot project at young chicken plants provides the information necessary to support the proposed rule…”

  • October 2013: Kimberly Kindy, writing in the Washington Post, highlights the potential for increased animal abuse problems if poultry slaughter facilities increase their line speeds as the rule would allow.

  • March 2014: NIOSH releases its final HHE report on the facility described above, noting an “alarming prevalence” of carpal tunnel syndrome among workers in the plant and cautioning that “increasing the number of birds processed per worker may result in an even higher prevalence of carpal tunnel syndrome than seen in this NIOSH evaluation.”

  • April 2014: The NIOSH final report led to an “interagency throwdown,” in which USDA officials tried to downplay the findings only to have their claims repudiated by NIOSH’s Director, Dr. John Howard, who called USDA’s spin-attempt “misleading.”

For workers and consumers, this rule presents huge risks.  USDA has been operating in a black box since proposing the rule in early 2012, so it is unclear what changes might have been made to answer the concerns raised by the public interest community and other government agencies.  OMB should send this rule back to USDA with a “return letter” that instructs the agency to at least release the draft publicly, if not start from scratch.

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NLRB gets an earful on its “joint employer” definition

A coalition of occupational health and safety experts submitted an amicus brief to the National Labor Relations Board (NLRB) last Thursday, urging the Board to reconsider its restrictive definition of “joint employer” for purposes of collective bargaining.  It’s a critical issue for workers as more and more are getting jobs through temp firms, staffing agencies, and other complex employment relationships.  The workers who got your last-minute Father’s Day gift from the Amazon warehouse to your front door, for instance, don’t all get paychecks from Amazon, but they all operate at “Prime” speed because Amazon demands it.

From a health and safety perspective, it’s important that laws like the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH Act) are interpreted broadly because the remedial purposes of those statutes – to ensure all workers can collectively bargain for better working conditions and to ensure that all workers are provided safe jobs – are best achieved when all of the employers with a connection to the job are at the table.

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