Kudos to the Obama Administration and the Department of Labor for conducting webchats about the department and its sub-cabinet agencies’ regulatory agendas on Monday. They seemed to work well and provided useful information. (Earlier post.)

We’ll admit to be frustrated by the online comments from Jordan Barab, the acting administrator of the Occupational Safety and Health Administration (OSHA), on the topic of ergonomics. Next week Barab will become deputy administrator after the newly confirmed David Michaels assumes the top spot. This week, he offered conflicting commentary on whether the agency would propose new ergonomics regulations.

Here are two exchanges:

Monday December 7, 2009 4:08

[Comment From Judie Smithers] From the Secretary’s chat: The agenda has an entry at the proposed rule stage to add requirements to record musculoskeletal disorders in a separate column on the 300 log. Does this signifiy that OSHA is considering future action to promulgate an ergonomics standard?

Jordan : Judie, This is not a prelude to a broader ergonomics standard. No, we are simply putting the MSD column back on the OSHA log as was originally intended in the 2001 issuance of OSHA’s recordkeeping standard. MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity.

Monday December 7, 2009 4:32

[Comment From Holly] In a speech recently, you called ergonomics a “huge health and safety problem” and said the govt must “take the field and make some fundamental changes.” Given these comments, why WOULDN’T OSHA have plans for regulatory activity?

Jordan: Holly: You’re right. I called musculoskeletal disorders a “huge health and safety problem.” I also called it a “huge political issue” and that we are in the process of determining how we are going to address it. Our new Assistant Secretary will arrive later this week, and we will intensify the process of determining how we are going to address ergonomics.

So OSHA has no plans for a new ergonomics rule, but it might have plans next week after Michaels arrives? Repetitive stress disorders are a “huge health and safety problem,” but OSHA’s goal now is merely to “intensify the process?” What in the world is “intensify the process”?

Since Barab’s all over the map in those responses, let’s pin him down to Milwaukee, Wisc., where he gave a speech to the AFL-CIO on September 25, the speech that commenter Holly cites in her question.

Here’s what he said to the labor audience, with lawyers the primary constituency for new rules:

And soon we must confront the 60,000-pound elephant in the room: Ergonomics. Let’s acknowledge a couple of obvious things about “ergo.” First, it’s a huge health and safety problem, recognized by strong science. Second, it’s a huge political football that some very big players don’t want to see on the field. Well, for the sake of our working men and women, we have to take the field and make some fundamental changes in America’s workplaces.

That sounds like OSHA will propose a new rule, doesn’t it? The Clinton Administration used a “midnight regulation” to establish an ergonomics standard in 2001, repealed by Congress using the Congressional Review Act because of the rule’s multi-billion-dollar cost, ambiguity, and potential to destroy jobs.

We’ve put more of Barab’s map-skittering responses in the extended entry below. Judging from the answers, we suspect that if OSHA issues a new rule — President Obama’s inclination as announced on the campaign trail — it will try to disguise its costs and burdens to escape political backlash.

It’s a shame the Senate HELP Committee could not manage to hold a confirmation hearing for David Michaels to allowing a public examination of issues like ergonomics. Well, welcome aboard, Mr. Assistant Secretary.

(continue reading…)

The Senate yesterday evening confirmed the nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health, i.e., administrator of OSHA.

His approval came on a voice vote as a part of a package of nominees. So the head of a major sub-cabinet agency important to employees and employers both was confirmed with neither a committee hearing nor a Senate debate. Accountabil……..

Congratulations and best of luck, and remember: If jobs creation is the priority, it’s best to work WITH jobs creators — the employers.

Earlier posts.

From Michael Shaw at HealthNewsDigest.com, “It’s Time To End The Anti-BPA Hysteria,” covering numerous examples of the bad science, hyped reports, campaigning journalism and fear-mongering on the useful plastics additive, Bisphenol A.

Finally, “hysteria” is the best way to refer to the posture of Consumer Reports on BPA, as presented in the December, 2009 issue. The piece “Concern over canned foods” is rife with errors, but space allows me to mention only two.

Consumer Reports claims that dietary exposure to BPA is close to levels shown to cause harm in animal studies. Yet, the lowest oral exposures to BPA that cause adverse effects in animals are 500,000 times higher than typical human exposure.

Consumer Reports conflates oral ingestion data with animal studies in which BPA was directly injected into the blood, thus bypassing all metabolic pathways. As author Trevor Butterworth reminds us, every regulator and risk assessment in the world has rejected injection studies as a relevant method for assessing human risk from BPA, since our exposure to the chemical is through ingestion. Large, statistically rigorous, multi-generational reproductive toxicity studies have failed to reproduce the findings of injection-based studies.

Indeed, an EPA-funded rodent study recently published in Toxicological Sciences found that low-dose exposures of bisphenol A (BPA) showed no effects on the range of reproductive functions and behavioral activities measured.

See also this summary of a new EPA report from STATS, non-profit, non-partisan Statistical Assessment Service at George Mason University, “New independent study by EPA refutes BPA risk“: “[A] second independent study by the Environmental Protection Agency, published in the leading toxicological journal, Toxicological Sciences, has failed to find evidence of the low-dose hypothesis claimed by environmental activists and widely reported in the media.”

Unfortunately, as former Ohio Treasurer Ken Blackwell has written, a BPA scare can help drum up business, for trial lawyers especially. See “A Chemical Scare Campaign Is Good Business for Some.”

The public would be well served by a high-profile, dispassionate assessment of these issues. We suggest a Senate hearing as venue.

David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration, has been a prominent promoter of the “BPA is DANGEROUS” school of thought from his position as director of the Project on Scientific Knowledge and Public Policy.  A headline on a piece Michaels wrote for The Washington Post on BPA proclaimed, “If Two Similar Studies Completely Disagree, Look at How the Funders Framed the Issue.”

Agreed, SKAPP was formed with money from the trial lawyer industry and is supported by George Soros’ Open Society Institute. And Business Insurance reports, “Surging legal action over BPA targets manufacturers.”

So, yes, a Senate hearing would be a good place to explore the issues surrounding BPA, science and political advocacy as front for the litigation industry. How about at the Senate HELP Committee’s confirmation hearing for Michaels?

Alas, too late. Chairman Tom Harkin pushed through Michaels’ committee approval with no hearing.

Sen. Richard Burr (R-NC) issued a statement accompanying his no vote in the Senate HELP Committee Wednesday opposing the nomination of David Michaels to be head of the Occupational Safety and Health Administration.

When considering nominations of this magnitude, there is no substitute for a hearing that is public and open to the American people. Unfortunately, a full open hearing on the nominee was not held. It is difficult to vote on a nominee to hold such an important position based largely on discussions and correspondence that occur out of the public’s eye. The position of assistant secretary for OSHA is too important a job to leave to a behind-the-scenes process that excludes the ability of all stakeholders in our workplace safety system to give their perspectives.

Evading a hearing also sets a terrible precedent; as noted previously, President George W. Bush’s OSHA nominee appeared before a confirmation hearing to answer questions.

Burr and Sen. Tom Coburn (R-OK) were the only two votes against Michaels when the committee voted out his nomination. (See previous Shopfloor.org post.)

Matthew Madia of OMB Watch, supportive of Michaels’ nomination, commented at the group’s blog:

The HELP Committee voted on Michaels despite failing to hold a confirmation hearing. As I have mentioned before, I think bypassing the hearing was a mistake. OSHA is a major regulatory agency, and the leaders of such agencies should, as a rule of thumb, go before the Senate committee of jurisdiction to explain their views and qualifications. A hearing also would have provided an opportunity for Harkin and others to voice their support for Michaels on the record, and to explain exactly why he is well-qualified to lead OSHA. Michaels has been criticized, unfairly in my opinion, by some of those who fear he would take a proactive role in writing and enforcing protections for workers. (More here.)

The general point is right, although the final sentence is rhetorical silliness. Employers groups don’t stand around saying, “That guy scares us. He’ll be proactive in protecting workers.” The objections to Michaels are based on his criticism of Daubert standards that limit the introduction of junk science into civil litigation, his writings that express a reactive, hostile view toward business, and his alignment with the litigation industry.

It’s those issues that should have been explored at a Senate hearing, a hearing that would have given Michaels an opportunity to respond to the criticisms. Someone in a position of power determined that his nomination would not be helped by a committee hearing, and that decision did a disservice to the public and Michaels both.

The Senate Health, Education, Labor and Pensions Committee is scheduled to vote today on President Obama’s nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health (OSHA). Despite Michaels’ controversial writings on science, litigaton and the Second Amendment, Chairman Tom Harkin (D-IA) did not schedule a committee hearing on his nomination allowing for a public exploration of his views.

The business meeting starts at 10 a.m.

For previous posts on Michaels, go here.

UPDATE (10:10 a.m.): The first item on the committee’s schedule is mark-up of S. 510, the FDA Food Safety Modernization Act. Sen. Harkin says he hopes to work through the bill by noon.

UPDATE (11:13 a.m.): With no discussion, the Committee passes out the nomination of Michaels to the Senate floor. Sen. Tom Coburn (R-OK) and Sen. Richard Burr (R-NC) voted no.

UPDATE (3:15 p.m.): Hans Bader of the Competitive Enterprise Institute revisits the many red flags in Michaels’ record. On the other hand, the American Public Health Association hails the committee action and urges quick confirmation by the full Senate.

The Senate Health, Education, Labor and Pensions Committee has scheduled an executive session Wednesday, Nov. 18, to vote on the nomination of David Michaels to become Assistant Secretary of Labor for the Occupational Safety and Health Administration, i.e., OSHA administrator. No hearing, no questioning, just a vote.

Many business groups and others have sought a confirmation hearing on Michaels to explore his views on key issues. For example, Michaels has headed the Project on Scientific Knowledge and Public Policy (SKAPP), created with money the trial lawyers funneled to it from the silicone breast implant settlement. SKAPP’s views closely align with those of the plaintiffs’ bar, especially in Michaels’ attack against the Daubert v.Merrell Dow Pharmaceuticals that put limits on the introduction of “junk science” into civil suits. (See this 2003 discussion at Overlawyered.com.) Michael’s book, Doubt is Their Product, exudes a world view in which business is always malign and intellectually corrupt.

Defenders of Second Amendment rights have also been alarmed at Michaels’ view of guns as a workplace safety issue warranting strict regulation. See Dave Kopel, “How President Obama’s latest anti-gun appointee—proposed OSHA Director David Michaels—could place sweeping restrictions on your Right to Keep and Bear Arms.”

The National Association of Manufacturers is a member of the Coalition for Workplace Safety, which on October 8 sent a letter to the HELP Committee asking for a hearing. Excerpt:

Because workplace safety is everyone’s concern and we are committed to working with OSHA to meet our shared goal of improving safety in the workplace, we believe a hearing is warranted to thoroughly explore Professor Michael’s views on key areas of OSHA operations, the direction the agency will take, and how his professional career might influence the decisions he would make in this position.

The letter notes that nominees to head OSHA have traditionally appeared before the committee for a confirmation hearing. Indeed, President Bush’s nominee, Ed Foulke, testified in a hearing on January 31, 2006.

It’s been a week since Chairman Tom Harkin’s press secretary offered this excuse for not scheduling a hearing: “If we had a hearing on every single nominee, nothing would ever get done.” We await a more substantive explanation the committee abandoning accountability, but have our doubts one will be forthcoming.

It looks like Chairman Tom Harkin of the Senate Health, Labor, Education, and Pensions Committee is going to push through the controversial nominee to head the Occupational Safety and Health Administration without a hearing. The public — employers and employees alike — will have to be satisfied with David Michaels’ answers to written questions.

Accountability is the loser. Almost all nominees of all political and philosophical leanings regard the written questionnaires as an exercise in avoiding specific answers. So do the Senators. You don’t want to provide anything in writing that will be controversial or indicate a radical point of view that might alarm a Senator.

Occupational Health and Safety has the report, “HELP Committee Decides to Bypass Full Hearing for Potential OSHA Chief,” including an unpersuasive explanation from Harkin’s press secretary, Bergen Kenny:

“If we had a hearing on every single nominee, nothing would ever get done,” Kenny said. “We wouldn’t be able to fill all the positions that need to be filled.”

Funny, President Bush’s OSHA nominee went through a full confirmation hearing in January 2006.

Earlier posts on Michaels’ nomination.

An editorial in Sunday’s The Washington Times, “Occupational corner-cutting”:

For an administration and Congress that promised to be the most transparent and ethical in history, it turns out that failing historical standards is an occupational hazard.

The latest subversion of procedural fairness is set for Wednesday, when the Senate Committee on Health, Education, Labor and Pensions is set to approve a host of executive-agency nominees without the public benefit of a hearing. The most troubling nominee, one for whom a hearing should be mandatory, is David Michaels of Maryland to head the Occupational Safety and Health Administration.

The editorial cites a letter sent to the Senate HELP Committee from a broad cross-section of trade associations, including the National Association of Manufacturers, asking for a hearing. The letter from the Coalition for Workplace Safety is available here.

See also these earlier posts on Michaels and the OSHA nomination.

The Senate Health, Education, Labor, and Pensions Committee has scheduled its mark up of pending nominations for next 10 a.m. next Wednesday.

Among the nominees expected to be acted on — and usually, that means approved — are Craig Becker, Mark Pearce and Brian Hayes to be members of the National Labor Relations Board, and David Michaels to be Assistant Secretary of Labor for Occupational, Safety and Health, i.e., the head of OSHA.

None of these nominees has had or is scheduled to have a Senate confirmation hearing at which they could explain their views of the job and the proper role of the government vis a vis the private sector.

Becker’s nomination has provoked consternation in the business community. Yesterday, The Wall Street Journal editorialized on him as “Acorn’s Ally at the NLRB,” noting the close ties between the union where he has been associate general counsel, the SEIU, and the radical political activist group, ACORN. More to the point, his views of the NLRB’s proper role are outside the mainstream:

President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

Just yesterday the NAM and 27 other trade associations sent a letter to the committee’s leadership asking for a hearing on Becker.

As for the OSHA post, earlier this month a group of industry, farm (correction: ag processing) and retail trade associations also sent a letter to the committee request confirmation hearings on Michaels. The letter stated:

Michaels has advocated for more government regulation, even when the available science
and data to support such regulations is inadequate or unsettled. He has also attacked the landmark, unanimous Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, which stands for the proposition that scientific evidence in litigation must meet certain standards to be admitted. Michaels has also been the beneficiary of product liability actions which have been shown to be without merit. Finally, nominees for the OSHA Assistant Secretary have traditionally been subject to a hearing before their confirmations moved forward. We see no reason why Professor Michaels should be an exception. Accordingly, as detailed below, we believe his views warrant a hearing and thorough examination before his nomination can proceed.

The NAM had also sent its own letter on the Michaels’ nomination. And, as noted above, President George W. Bush’s OSHA nominee went through a full confirmation hearing in January 2006 so business isn’t asking for anything unusual.

In both cases — Becker and Michael — we’re surprised that the committee did not believe nominees to these important positions should be asked to explain their beliefs and governing philosophies in a public forum. The two men will soon wield great power over the workplace world, and a confirmation hearing puts them on the record, letting the public better judge their actions once in office.

The HELP Committee is busy, we know, but not so busy that it should eschew its responsibilities of advice and consent. The White House could play a constructive role here, demonstrating its adherence to high standards of transparency and accountability if it asked the HELP Committee to take another week and conduct the confirmation hearings.

Good, brief round-up of labor policy issues in Congress and the regulatory agencies from Martha Lynn Craver of The Kiplinger Letter, “Big Changes Coming to the Workplace“:

The Obama administration is cranking out a slew of regulations affecting businesses. Political appointees are in control at most Cabinet departments and regulatory agencies, and they’re having an influence. Congress is also getting into the act, albeit more slowly. Most of the changes will boost labor protections against workplace hazards, discrimination, unfair pay policies and in other personnel disputes. For employers, it means more costs and red tape as they’re forced to show they’re in compliance.

“It’s hard to believe that a widget maker will have any time to make widgets in this hyper-enforcement environment,” says Rae T. Vann, general counsel at the Equal Employment Advisory Council, an employer group.