Is New Ergonomics Standard On Bush’s Radar?

April 4, 2002
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KISSIMMEE, FL — Ergonomics. Legislation. Salting.

Now there are three words that can send chills down the spine of a contractor. That may explain why many contractors shied away from Laurie Baulig’s presentation (“Labor Issues: Ergonomics, Salting, and the Current Agenda in Washington”) at the Air Conditioning Contractors of America’s (ACCA’s) 34th annual conference, held here recently.

Baulig, an attorney with the Washington, DC, law firm of Scopelitis, Garvin, Light, and Hanson, PC, outlined the current federal, state, and local picture regarding ergonomics; she also touched upon union activities and the contentious issue of salting. While it appears a new ergonomics standard will not surface during the Bush administration, Baulig hinted it might produce future guidelines regarding the subject.

“The recession and war have displaced ergonomics as a major policy issue,” she said. “If the House flips, expect more rhetoric on the issue, but the White House holds the final veto.”

THE CURRENT PICTURE

As is common knowledge by now, the federal ergonomics standard, which was passed by the Clinton administration and went into effect January 2001, was rescinded by Congress less than three months later through the Congressional Review Act.

Replacement bills have been introduced in both the House and Senate, but since the terrorist attacks last year, ergonomics has not been high on Washington’s priority list, she said.

“It was one of the few examples of regulation that the entire business community opposed,” said Baulig regarding the Clinton standard, noting the AFL/CIO — one of the biggest supporters of ergonomics — was caught completely off guard by the March 2001 rescission. “The unions went too far and they got burned.”

Baulig expected Department of Labor (DOL) Secretary Elaine Chao to make an announcement soon regarding what the DOL has in store regarding ergonomics. The Senate Labor Committee had scheduled a hearing on ergonomics for March 14, but that meeting did not take place.

At the state level, Baulig pointed out that California has had an existing ergonomics standard since 1997, and Washington has had one since 2000. New proposals are being examined this year in Minnesota and Alaska, while past proposals surfaced in North Carolina and Oregon.

ESTABLISHING ERGONOMICS STANDARDS

The struggle in establishing ergonomics standards, she said, hovers over many gray areas. Common risk factors in the workplace include awkward postures, force, repetitive motion, repeated impacts, vibration, and heavy, frequent, or awkward lifting. How-ever, the gray areas include “musculoskeletal disorders” (MSDs), aches, and pains.

“The debate isn’t really about whether an injury exists,” she said. “My position is, we don’t really know to what extent work contributes to an injury.”

While repetitive motion may cause pain, Baulig maintained that “if you don’t have repetitive motion in your everyday life, you are not alive. Repetitive motion is known by another name outside the workplace. We call it exercise. And it’s good for you.…Again, I didn’t mean to be flip. We just don’t know at what point too much motion is harmful for you — if, in fact, it is.”

She was quick to point out that people who have had MSDs often go for physical therapy, “which involves repetitive motion.” She concluded that the science of ergonomics has evolved more to “fitting the worker to the job, rather than the job to the worker.”

According to Baulig, the current ergonomics debate centers around two questions:

1. If you’re a proponent of occupational ergonomics regulations, would you prefer to see it originate at the state or federal level?

2. If you’re opposed to regulating ergonomics, will it be possible or practical to stop multiple proposals in multiple states?

“This is still a priority issue for unions,” she said. “For instance, the California Labor Federation has asked the California OSHA to adopt more stringent federal regulations.”

In the long run, Baulig predicted ergonomics activity may increase at the state level more so than at the federal level. She also expected to see more employee complaints, which could trigger more OSHA inspections.

THE ISSUE OF SALTING

Turning to the highly contentious labor-management issue of salting, Baulig pointed out that in 1999 there was an effort to pass legislation against such practice, but it failed and a bill has not been introduced since.

“There’s not much likely anything will happen this year either,” she said.

The definition of salting differs between labor and management and between union and non-union, she agreed. She thought Neil Gath, from the Indiana State Building and Construction Trades Council, produced the best definition from labor’s standpoint:

“Salting refers to an effort by union members to obtain jobs at nonunion companies in order to educate these unorganized workers about the significant benefits of higher pay, safer working conditions, and well-deserved fringe benefits available under labor agreements.”

In her estimation, the best definition from management’s standpoint comes from the Coalition on Fairness for Small Business and Employees:

“Salting abuse is the placing of trained union professional organizers and agents in an open shop facility to harass or disrupt company operations, apply economic pressure, increase operating or legal costs, and ultimately put the company out of business.”

“I think you can see there is not much compromise,” said Baulig. “This is why this [salting] is so contentious.”

She noted that most unfair labor practice charges are dismissed as having no merit. Where probable cause is found, most are settled without litigation, she said. Settlements range between $2,000 and $8,000.

For small businesses, she said the real cost is in defending charges. Legal fees can be up to $100,000 per case, she explained. She also said “salts” could instigate OSHA, EEOC, and FLSA investigations. The end result is that some companies may be forced to go out of business, “which may be the primary aim of the salting activity.”

Even if a salt does not produce a full disclosure at the time s/he is hired, Baulig cited several court decisions that have ruled that this practice is not illegal. “So, unless the lie is about qualifications for the job, or unless the individual is not qualified for the job, then you’re dealing with an applicant,” she said.

During the course of Baulig’s presentation, the wife of a non-union contractor from Indiana expressed her anger over salts. She explained that one had invaded her husband’s firm and “it’s been miserable.”

“It’s like you can’t touch them,” said the woman, who did not want to be identified.

The only thing Baulig could do was sympathize with the woman. At the conclusion of her talk, she asked the woman for her business card.

Publication date: 04/08/2002

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