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43–026 PDF 2008

IS OSHA FAILING TO ADEQUATELY

ENFORCE CONSTRUCTION SAFETY RULES?

HEARING

BEFORE THE

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, JUNE 24, 2008

Serial No. 110–98

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Senior Republican Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

[Vacancy]

Mark Zuckerman, Staff Director 

Sally Stroup, Republican Staff Director 

(III)

C O N T E N T S 

Page

Hearing held on June 24, 2008 ............................................................................... 1

Statement of Members: 

Altmire, Hon. Jason, a Representative in Congress from the State of 

Pennsylvania, prepared statement of .......................................................... 71

McKeon, Hon. Howard P. ‘‘Buck,’’ Senior Republican Member, Committee 

on Education and Labor ............................................................................... 6

Prepared statement of ............................................................................... 11

Additional submissions: 

Article, ‘‘Top City Crane Inspector Accused of Taking Bribes,’’ 

New York Times, June 7, 2008 ..................................................... 6

Statement of Graham J. Brent, executive director, National Commission for the Certification of Crane Operators (NCCCO) ....... 9

Miller, Hon. George, Chairman, Committee on Education and Labor ......... 1

Prepared statement of ............................................................................... 3

Additional submissions: 

Questions submitted to Mr. Foulke and their responses ................ 65

Statement of Christopher Lee, OSHA Deputy Regional Administrator, retired .................................................................................. 62

Statement of Joe Standley, president, District Council of Iron 

Workers, California and Vicinity .................................................. 64

Porter, Hon. Jon C., a Representative in Congress from the State of 

Nevada, prepared statement of .................................................................... 71

Statement of Witnesses: 

Ayers, Mark H., president, building and construction trades department, 

AFL–CIO ....................................................................................................... 30

Prepared statement of ............................................................................... 32

Cole, George, former ironworker ..................................................................... 20

Prepared statement of ............................................................................... 22

Foulke, Hon. Edwin G., Jr., Assistant Secretary, Occupational Safety 

and Health Administration, U.S. Department of Labor ............................ 13

Prepared statement of ............................................................................... 15

Responses to questions for the record ..................................................... 66

Kallmeyer, Mike, senior vice president for construction, Denier Electric ... 27

Prepared statement of ............................................................................... 28

LiMandri, Robert, acting buildings commissioner, City of New York .......... 23

Prepared statement of ............................................................................... 25

(1)

IS OSHA FAILING TO ADEQUATELY

ENFORCE CONSTRUCTION SAFETY RULES? 

Tuesday, June 24, 2008

U.S. House of Representatives 

Committee on Education and Labor 

Washington, DC

The committee met, pursuant to call, at 10:04 a.m., in Room 

2175, Rayburn House Office Building, Hon. George Miller [chairman of the committee] presiding. 

Present: Representatives Miller, Kildee, Woolsey, McCarthy, 

Tierney, Kucinich, Holt, Davis of California, Grijalva, Bishop of 

New York, Sanchez, Sarbanes, Loebsack, Yarmuth, Hare, Clarke, 

Courtney, McKeon, Petri, Platts, Wilson, Kline, Kuhl, Davis of Tennessee, and Walberg. 

Staff Present: Aaron Albright, Press Secretary; Tylease, Alli, 

Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor; Jody 

Calemine, Labor Policy Deputy Director; Fran-Victoria Cox, Staff 

Attorney; Lynn Dondis, Policy Advisor, Subcommittee on Workforce 

Protections; David Hartzler, Systems Administrator; Brian Kennedy, General Counsel; Thomas Kiley, Communications Director; 

Danielle Lee, Press/Outreach Assistant; Sara Lonardo, Junior Legislative Associate, Labor; Alex Nock, Deputy Staff Director; Joe 

Novotny, Chief Clerk; Rachel Racusen, Deputy Communications Director; Meredith Regine, Junior Legislative Associate, Labor; 

Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff 

Director; Robert Borden, Minority General Counsel; Cameron 

Coursen, Minority Assistant Communications Director; Ed Gilroy, 

Minority Director of Workforce Policy; Rob Gregg, Minority Senior 

Legislative Assistant; Alexa Marrero, Minority Communications Director; Jim Paretti, Minority Workforce Policy Counsel; Molly 

McLaughlin Salmi, Minority Deputy Director of Workforce Policy; 

Hannah Snoke, Minority Legislative Assistant; Linda Stevens, Minority Chief Clerk/Assistant to the General Counsel; Sally Stroup, 

Minority Staff Director; and Loren Sweatt, Minority Professional 

Staff Member. 

Chairman MILLER. A quorum being present, the committee will 

come to order. 

And the purpose of this morning’s hearing is to conduct an oversight hearing on OSHA and enforcement of construction safety 

rules. And at this point, I will yield to myself for purposes of an 

opening statement. 

2

Over the past few months, a number of catastrophic and well 

publicized construction accidents have highlighted concerns about 

whether government health and safety agencies are doing enough 

to ensure safe working conditions at construction sites. In New 

York, two massive construction crane collapses have killed nine 

people, including one bystander. 

In Las Vegas, over the last 19 months, 12 construction workers 

have been killed in construction projects on the strip. According to 

the Las Vegas Sun, more workers have died in the city in the past 

19 months than died during the entire 1990s construction boom. 

An investigative series in the Las Vegas Sun detailed circumstances behind the deaths on the strip, including inadequate 

response from the Nevada Occupational Safety and Health Administration. 

As our witnesses will describe today construction is one of the 

most dangerous industries for workers. On average, four construction workers die on the job every day. Unfortunately, most of these 

workers die one at a time, and their deaths do not garner the same 

level of attention that the media gave to the New York crane collapses. 

There is no question that construction is an inherently dangerous 

job, and there is no one who would argue with that. The question 

is whether more can be done to prevent accidents and to make the 

industry safer. We intend to begin to answer that question today 

and explore ways to make the industry safer. 

We will examine whether or not the U.S. Occupational Safety 

and Health Administration is doing everything it can to improve 

safety at construction sites. This committee has repeatedly raised 

serious concerns about OSHA’s inability or unwillingness to issue 

needed health and safety standards for a number of different industries, and we have the same concern now about the construction 

industry. 

We will also examine today whether OSHA has sufficient resources to do its job. In the boroughs of Manhattan and Queens, 

for example, Federal OSHA has only 20 inspectors to cover thousands of construction sites, and some of the inspectors are new 

trainees. We have nothing but praise for the dedication and work 

of those few valiant inspectors who perform every day, but they are 

faced with an impossible task. The root cause of that problem lies 

here in Washington. 

We will also examine the role that cities can play in making construction sites safer. Because of the lack of Federal OSHA resources in the city, New York City decided to step in to address the 

hazards the city’s construction boom has presented. The city reasoned that its actions not only protect workers but also protect 

members of the public who may be walking, driving, or living underneath a tower crane. By our count, and one of our witnesses 

confirmed this today, the city has more than 20 times more inspectors on the ground than OSHA has. 

While we commend New York City for its activity in this area 

it is unclear whether other smaller cities have the same ability to 

put resources into construction safety that New York has. We also 

intend to examine today whether the Federal laws as now written 

may actually discourage some States and cities from maintaining 

3

their own programs to enforce workplace safety rules unless there 

are overriding public safety concerns. 

The State of Florida has tried to issue stronger construction safety regulations on its own, but those efforts were overturned by the 

courts because Federal OSHA regulations preempt any State enforcement in States that do not have their own occupational safety 

agencies. 

Let me be clear, the U.S. Occupational Safety and Health Administration is an agency responsible for workplace safety, but workers 

must best be served by vigorous OSHA enforcement, coupled with 

renewed efforts by States and cities to make construction sites 

safer. 

Finally, we will examine the enforcement tools that OSHA has 

to ensure construction site safety. OSHA has the ability to assess 

penalties against construction companies who violate the law, but 

those penalties appear to be low and really low enough to be considered just the cost of doing business. And they usually assess 

long after the inspections occur. 

Moreover, OSHA does not have the authority to shut down a job 

site unless the agency can convince a judge that the site presents 

an imminent danger. The city has the authority to wield a much 

bigger stick. The New York Building Department has the ability to 

shut down dangerous job sites at a moment’s notice potentially 

costing the contractor hundreds of thousands of dollars a day. We 

will discuss today whether OSHA ought to have the enhanced authority to shut down hazardous job sites without first jumping 

through excessively time-consuming legal hoops when workers’ 

lives are on the line. These are not simple issues, but they are 

issues of life and death, and they demand the committee’s attention. Today we will hear from the head of OSHA, the president of 

the Building and Construction Trades Department of the AFL–

CIO, the acting director of the New York Department of Buildings, 

and we will also hear from a former ironworker and a contractor 

from Las Vegas who will speak to the hazards workers faced during the building boom. He will also address the personal loss that 

workers and families face when a loved one is killed on the job. 

I want to thank all of the witnesses for being here today, and we 

look forward to your testimony and appreciate you giving your time 

to the committee. 

And with that, I would like to recognize the subcommittee Chair, 

Ms. Woolsey from California, for the purposes of an opening statement. 

[The statement of Mr. Miller follows:]

Prepared Statement of Hon. George Miller, Chairman, Committee on 

Education and Labor 

Over the past few months a number of catastrophic and well publicized construction accidents has highlighted concerns about whether government health and safety agencies are doing enough to ensure safe working conditions at construction sites. 

In New York, two massive construction crane collapses have killed nine people, 

including one bystander. 

In Las Vegas, over the last 19 months, 12 construction workers have been killed 

in construction projects on the Strip. According to the Las Vegas Sun, more workers 

have died in the city over the past 19 months than died during the entire 1990s 

construction boom. 

4

An investigative series by the Las Vegas Sun detailed the circumstances behind 

the deaths on the Strip, including the inadequate response from the Nevada Occupational Safety and Health Administration. 

As our witnesses will describe today, construction is one of the most dangerous 

industries for workers. On average, four construction workers die on the job every 

day. 

Unfortunately, most of these workers die one at a time and their deaths do not 

garner the same level attention from the media that the New York crane collapses 

did. 

There’s no question that construction is an inherently dangerous job. No one here 

would argue with that. 

The question is whether more can be done to prevent accidents and make the industry safer. We intend to begin to answer that question today, and to explore ways 

to make the industry safer. 

We will examine whether the U.S. Occupational Safety and Health Administration is doing everything it can to improve safety at construction sites. 

This Committee has repeatedly raised serious concerns about OSHA’s inability or 

unwillingness to issue needed health and safety standards for a number of different 

industries. We have the same concern about the construction industry. 

We will also examine today whether OSHA has sufficient resources to do its job. 

In the boroughs of Manhattan and Queens, for example, federal OSHA has only 20 

inspectors to cover thousands of construction sites—and some of those inspectors are 

new trainees. We have nothing but praise for the dedication and work that those 

few valiant inspectors perform every day, but they are faced with an impossible 

task, and the root cause of that problem lies here in Washington. 

We will also examine the role that cities can play in making construction sites 

safer. 

Because of the lack of federal OSHA resources in the city, New York City decided 

to step in to address the hazards that the city’s construction boom has presented. 

The city reasoned that its actions not only protect workers, but also protect members of the public who may be walking, driving or living underneath a tower crane. 

By our count—and one of our witnesses can confirm this today—the city has more 

than 20 times more inspectors on the ground than OSHA has. 

While we commend New York City for its activity in this area, it is unclear 

whether other, smaller cities have the same ability to put resources into construction safety that New York has. 

We also intend to examine today whether federal law, as now written, may actually discourage some states and cities from maintaining their own programs to enforce workplace safety rules, unless there are overriding public safety concerns. 

The state of Florida has tried to issue stronger construction safety regulations on 

its own. But those efforts were overturned by the courts because federal OSHA regulations pre-empt any state enforcement in states that do not have their own occupational safety agencies. 

Let me be clear: The U.S. Occupational Safety and Health Administration is the 

agency responsible for workplace safety. But workers might be best served by vigorous OSHA enforcement coupled with renewed efforts by states and cities to make 

construction sites safer. 

Finally, we will examine the enforcement tools that OSHA has to ensure construction site safety. OSHA has the ability to assess penalties against construction companies that violate the law, but those penalties are low—low enough to be considered just another cost of doing business—and they are usually assessed long after 

an inspection occurs. 

Moreover, OSHA does not have the authority to shut down a job site unless the 

agency can convince a judge that the site presents an imminent danger. 

A city has the authority to wield a much bigger stick. The New York Buildings 

Department has the ability to shut down a dangerous job site at a moment’s notice, 

potentially costing a contractor hundreds of thousands of dollars a day. 

We will discuss today whether OSHA ought to have the enhanced authority to 

shut down hazardous job sites without first jumping through excessively time consuming legal hoops when workers lives are on the line. 

These are not simple issues, but they are life and death issues, and they demand 

this Committee’s attention. 

Today we will hear from the head of OSHA, the president of the Building and 

Construction Trades Department of the AFL-CIO and the acting director of the New 

York Department of Buildings. 

We will also hear from a former iron worker and contractor from Las Vegas who 

will speak to the hazards that workers face during a building boom. He will also 

5

address the personal loss that workers and families face when one a loved one is 

killed on the job. 

I thank all of our witnesses for being here today and I looked forward to their 

testimony. 

Thank you. 

Ms. WOOLSEY. Thank you, Chairman Miller. 

Thank you for holding this hearing on the recent crane and construction accidents that have plagued many of this Nation’s construction workers, especially in big cities like New York and Las 

Vegas. 

As you noted, there is a building boom going on in those cities. 

And while these booms bring many needed jobs to working people, 

today we are going to examine the terrible price that workers pay 

when their employers cut corners in a mad dash to compete for and 

complete their projects. We are aware of the large bonuses that 

contractors receive if they complete their building projects by a certain date, particularly if they are finished ahead of schedule. But 

in reverse, we know there are equally large penalties that some 

contractors pay if projects are late. With the almighty dollar ruling, 

it is not a surprise that safety often comes last, and the real penalty falls on the worker, the worker who is injured, or the worker 

who loses his or her life. 

This hearing will point out, it appears, once again, that OSHA 

is failing to fulfill its mandate to keep workers in this country safe 

and to keep them healthy. With the construction industry that we 

are going to talk about today, the problem is pretty obvious. First, 

OSHA has not updated its crane and derrick standards since 1971. 

OSHA and other experts have long realized that this standard is 

out of date. And in fact, in the year 2003, OSHA began working 

on a new rule. Labor and Management came together, and they 

produced a draft in the year 2004. But here we are, it is 2008, and 

OSHA hasn’t issued its proposed rule. 

So we understand that the Department has sent the proposed 

rules to the OMB, and we hope, Administrator Foulke, that you are 

going to bring us some good news about that today about publishing these badly needed regulations. 

Also, the resources for construction jobs, the resources for OSHA 

in general, such as staff and inspectors, to enforce the health and 

safety rules at construction sites are woefully inadequate. In fact, 

Federal OSHA, all of OSHA, has only 821 inspectors for the 29 

States that don’t have their own State OSHA programs, and the 21 

States with their own health and safety programs have another 

1,273 inspectors. This means that there are a total of 2,094 inspectors for the 8 million work sites in this country. Imagine that. 

Finally, one reason for this low number of inspectors, I believe, 

is that OSHA takes a good part of its budget from enforcement and 

transfers those funds into unproven voluntary programs and consultations for employers. If those were working, we wouldn’t be 

having an increase in accidents, particularly in the construction industry. 

But as Chairman Miller did note, New York City takes health 

and safety seriously with its own inspectors. What we have to look 

at today then is why New York City is having the number of acciVerDate 0ct 09 2002 13:49 Nov 09, 2008 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-98\43026.TXT HBUD1 PsN: DICK
6

dents that they have been having lately. But I do congratulate the 

city on its diligence. 

I share the chairman’s concern that there are preemption and 

other issues that we must examine very seriously and that OSHA 

must be held accountable. Our workers are counting on us. They 

need to be assured that they are going to work in a safe place, that 

they will be safe and healthy, and they will be able to return to 

their families every night and every evening after they finish their 

jobs. 

So thank you again, Mr. Chairman, and I look forward to the 

hearing. 

Chairman MILLER. Thank you. 

And now I would like to recognize Congressman McKeon, the 

senior Republican on the committee, for the purpose of an opening 

statement. 

Mr. MCKEON. Good morning Chairman Miller, members of the 

committee and our panel of witnesses. We are here this morning 

for a broad overview of OSHA’s efforts to ensure worker safety 

within the construction industry. 

Given a number of recent high-profile crane accidents, I expect 

that we will also look specifically at the crane and derrick standard 

currently in place, as well as the pending update to that standard 

that began with an OSHA-negotiated rulemaking process in 2004. 

It is my understanding that OSHA sent a proposal to revise and 

update the crane rule to the Office of Management and Budget earlier this month for final review and that we can expect to see final 

regulations in place before the end of the year. 

Media reports have shown the devastation that can occur when 

construction equipment fails. As we have seen, this problem has 

not been isolated in one area of the country but has had consequences nationwide. Construction cranes, for instance, are powerful tools in today’s construction arena. They are being built higher, 

can carry larger loads and, if used properly, improve the efficiency 

of a construction project. Cranes can eliminate many man hours for 

lifting and moving supplies and materials on the job site. They can 

also be among the most dangerous equipment for construction 

workers to be around. Constant vigilance is vital when workers are 

moving in and around functioning cranes. 

Investigations into a number of recent crane accidents are still 

under way, and I expect these investigations to provide valuable information about how to prevent such tragedies in the future. However, I am very troubled by allegations in the New York Times that 

the city’s chief crane inspector has been accused of taking bribes 

to certify cranes as operational and workers as having successfully 

passed licensing exams. 

I request unanimous consent to include this article, dated June 

7, 2008, in the hearing record. 

[The information follows:]

[From the New York Times, June 7, 2008]

Top City Crane Inspector Accused of Taking Bribes

By WILLIAM K. RASHBAUM

The city’s chief crane inspector was arrested on Friday and charged with taking 

bribes to allow cranes to pass inspection, the authorities said. He was also accused 

7

of taking money from a crane company that sought to ensure that its employees 

would pass the required licensing exam. 

The man, James Delayo, 60, the acting chief inspector for the Cranes and Derricks Unit at the city’s Department of Buildings, oversaw the issuing of city licenses 

for crane operators. The case against him, announced by the Manhattan district attorney’s office and the city’s Department of Investigation, was filed just a week after 

the city’s second fatal crane collapse in less than three months. 

Officials said the accusations against Mr. Delayo bore no direct relation to the accident last week at 91st Street and First Avenue, where two workers died, or the 

crane accident on East 51st Street that left seven dead in March. 

But the case was another blemish on a Buildings Department that has been reeling from construction deaths and inspection lapses this year, and for which deadly 

crane accidents are part of a lingering series of problems. 

The agency’s commissioner resigned last month and Mayor Michael R. Bloomberg 

has been struggling to find a replacement to run a department that has long been 

plagued by corruption and where critics say an underpaid, shorthanded staff of inspectors has been hard-pressed to deal with the city’s building boom. 

‘‘This is a case where greed trumps safety,’’ said Daniel J. Castleman, the chief 

assistant in the district attorney’s office, which is also investigating the crane collapse last week. ‘‘With all the construction going on in New York City and the fatal 

accidents of the last few months, this type of conduct cannot and will not be tolerated.’’

Rose Gill Hearn, the commissioner of the Department of Investigation, said in a 

statement that her office was working with District Attorney Robert M. Morgenthau 

as part of a continuing inquiry into corruption at the Buildings Department. 

‘‘D.O.I.’s investigation revealed the profoundly disturbing and sobering realization 

that a senior inspector responsible for ensuring that cranes operating in New York 

City are in proper condition and are operated by qualified individuals is charged 

with selling out his own integrity in a way that compromised public safety,’’ Ms. 

Hearn said. 

Mr. Delayo surrendered on Friday morning to investigators and was arraigned in 

Criminal Court in Manhattan on a complaint that said he had admitted on Thursday to receiving the bribes. He was released on his own recognizance. A Buildings 

Department spokeswoman said he would be suspended without pay. 

The charges against Mr. Delayo include third-degree bribe-receiving and first-degree tampering with public records, both felonies for which he could face up to seven 

years in prison. Among the charges was the accusation that he had provided a copy 

of the crane operator’s exam to a crane company, for which an official involved in 

the case said Mr. Delayo was paid about $3,000. The official, who spoke on the condition of anonymity because the investigation was continuing, said Mr. Delayo also 

provided the answers. 

As the chief inspector, Mr. Delayo had responsibility for overseeing the inspection 

of all cranes, including tower cranes, the type that collapsed in the two recent fatal 

accidents. The allegations against Mr. Delayo made it easy on Friday for him to be 

seen as a symbol for the failures that have plagued the Buildings Department for 

years. In fact, as he made his way to a cab after court, he was accosted by a street 

sweeper who dropped his broom and demanded to know if he felt responsible for 

the crane collapse. He did not answer. 

Mr. Delayo, whose Legal Aid lawyer said little that could be heard during the arraignment, entered no plea during the proceeding before Judge Abraham Clott of 

Criminal Court. Mr. Delayo, appearing slightly hunched and wearing a white shirt 

with thin blue and brown stripes, held his pants up, apparently because he had no 

belt on. Later, as he left the building housing Mr. Morgenthau’s office, he wore a 

red bandanna as a makeshift belt. 

Mayor Bloomberg, in a statement, said that he has ‘‘zero tolerance’’ for corruption 

anywhere in his administration, and that such conduct is ‘‘is all the more deplorable’’ in a public safety agency like the Buildings Department. 

‘‘The Department of Buildings has made enormous strides in rooting out corruption over the past six years, but this case underscores that there remains more work 

to do,’’ he said 

Mr. Bloomberg, along with the City Council, on Wednesday announced a legislative package aimed at broadening oversight at building sites. But on Friday, the 

Manhattan borough president, Scott Stringer, who had said that the measures proposed by the mayor and the Council did not go far enough, called Mr. Delayo’s arrest ‘‘stunning and frightening.’’

‘‘The man in charge of issuing city licenses to crane operators has been accused 

of years of taking bribes to license cranes he did not inspect, and to license operators who did not pass a required test,’’ Mr. Stringer said in a statement. ‘‘Under 

8

the circumstances, before we begin any new procedures to implement the administration’s construction reforms, we must have a top-to-bottom review of the Buildings 

Department, its procedures and its personnel.’’

The accusations against Mr. Delayo focus on smaller mobile cranes, known as 

Class C cranes. 

A 26-year veteran of the Buildings Department, Mr. Delayo took bribes of ‘‘a couple of hundred dollars’’ in exchange for issuing licenses to about half a dozen Class 

C crane operators, including once to a man who did not even take the test, according 

to the criminal complaint and the official involved in the case. 

All of the operators worked for the company, Nu-Way Crane Service of Copiague, 

N.Y., that paid for the test and the answers, said the official. Investigators searched 

the offices of Nu-Way on Friday, seizing computers and records, the official said. A 

crane inspector’s test was found there, but investigators were unsure if it was the 

one Mr. Delayo was accused of providing. 

A city official said that the Department of Buildings was suspending approvals 

for the company’s cranes to operate and was evaluating the licenses issued to its 

operators. 

Nu-Way did not respond to telephone messages left at the company’s offices. An 

official with the company served last year on the Buildings Department’s Cranes 

and Derricks Advisory Council. 

The complaint said that on Thursday, Mr. Delayo admitted to Sadie Lopez, an investigator with the Department of Investigation, to meeting with and taking money 

from the owner and or employees of the crane company ‘‘on numerous occasions’’ 

from 2002 to 2007. 

The authorities also learned that Mr. Delayo signed off on the annual inspection 

of between 20 and 30 Class C cranes without conducting any examination in exchange for ‘‘several hundred dollars’’ apiece, the official said. 

Mr. Delayo, who lives in the Bronx, was promoted to acting chief inspector after 

the fatal crane accident in March. He makes $74,224 a year. 

In addition to the bribe-receiving and tampering with public records counts, the 

complaint charged him with first-degree falsification of business records and first 

degree offering a false instrument for filing, both felonies, and receiving an unlawful 

gratuity, a misdemeanor. 

The Buildings Department issues licenses to crane operators who work within the 

city, while state officials issue such licenses across the rest of New York. Earlier 

this year, state officials reported similar problems with the integrity of the process 

under which they were granting licenses and said one longtime employee had approved 210 people for licenses despite their having failed the official exam, although 

he took no money and was charged with no crime.

Daryl Khan, Colin Moynihan and Sharon Otterman contributed reporting. 

Chairman MILLER. Without objection, so ordered. 

Mr. MCKEON. Construction is vital to economic growth, but it is 

also an inherently dangerous industry. And that is why it is so important that steps be taken to help mitigate the risks and protect 

the workers. Because of the unique characteristics of construction 

job sites and their associated dangers, OSHA has put in place specific and extensive regulations directed at the construction industry. I look forward to learning more about those standards today. 

We have before us a distinguished panel of experts, including 

OSHA Administrator Foulke, who has taken over the development 

of the crane regulation I mentioned earlier in the midst of its development. I am hopeful he will provide us with an update on the 

crane rulemaking that has been developed, as well as the other 

specific safety standards applicable to the construction industry. 

This hearing is an important first step to examine safety protections for workers in the construction industry with a particular emphasis on the crane accidents that have drawn so much attention 

in recent months. 

I anticipate that the conclusion of OSHA’s investigations will also 

help shape public policy on this important issue. 

9

I would also request unanimous consent to include testimony for 

the record from Mr. Graham Brent, executive director of the National Commission for the Certification of Crane Operators. When 

this hearing was originally scheduled we were notified that it 

would focus exclusively on crane safety. Although the scope of the 

hearing has been expanded, I believe the record will be enhanced 

with the inclusion of Mr. Brent’s testimony. 

[The information follows:]

Prepared Statement of Graham J. Brent, Executive Director, National 

Commission for the Certification of Crane Operators (NCCCO) 

Good morning Mr. Chairman, and distinguished members of the House Committee on Education and Labor. My name is Graham Brent and I am the Executive 

Director of the National Commission for the Certification of Crane Operators 

(NCCCO). 

The National Commission for the Certification of Crane Operators (NCCCO) was 

formed in January 1995 as a non profit organization to develop effective performance standards for safe crane operation to assist all segments of construction and 

general industry. 

The establishment of NCCCO came in the aftermath of the San Francisco tower 

crane collapse in 1989 which claimed five (5) lives and foreshadowed the tragedies 

we have witnessed this year in New York, Miami and elsewhere. The foundation 

of the CCO national crane operator certification program by a dedicated team of industry experts over a ten (10) year period reflected a genuine and earnest desire 

by the industry most affected by such accidents to improve the safety of lifting operations. 

NCCCO’s mission was—and remains today—to provide a thorough, independent 

assessment of operator knowledge and skills and, thereby, to enhance lifting equipment safety, reduce workplace risk, improve performance records, stimulate training, and give due recognition to the professional skill of crane operation. 

The industry representatives who participate in NCCCO activities represent such 

groups as: contractors, labor unions, rental firms, owners, steel erectors, manufacturers, construction firms, training consultants, and insurance companies. Since 

NCCCO began testing in April 1996, over 325,000 written and practical exams have 

been administered to more than 65,000 crane operators in all 50 states. 

Mr. Chairman, as tragic as the recent incidents in New York and Miami are, they 

need to be put in context. A recent survey (1) has revealed that there are an estimated 3,000 tower cranes in the United States, of which 2,100 might be in use at 

any one time. These tower cranes perform in excess of 100,000 lifts per day safely 

and without adverse consequence. 

Nevertheless, the recent incidents we have witnessed are clearly completely unacceptable. It’s important to recognize that cranes, in and of themselves, are not dangerous. In the hands of unqualified personnel, however, they can become deadly instruments. This raises two questions: #1 What personnel need to be qualified? And 

#2: How can that qualification be determined? 

To the first question, OSHA has an overarching, if non-specific, requirement for 

all personnel engaged in the lifting operation to be trained and qualified and/or competent to perform the task they are assigned. This means the crane operator, to be 

sure. But it also extends to the rigger (who rigs the load to be lifted), the 

signalperson (who gives the operator verbal or visual instructions), and the inspector (who verifies that the crane has been maintained and erected correctly and in 

accordance with the manufacturer’s instructions). 

In answer to the second question, ‘‘how can that qualification be determined?’’, we 

believe that professionally developed and accredited certification is the employers’ 

and public’s best assurance that the required training has been given and, most importantly, that it has been effective—that learning has, in fact, taken place. 

Remarkably, however, only 15 states and five (5) cities require crane operators to 

be certified or licensed. Only two (2) states require crane inspectors to be licensed. 

And there are no state or federal requirements for riggers to be licensed. 

OSHA’s regulations that govern the use of cranes have gone largely unchanged 

since they were issued in the early 1970’s. They reference an American National 

Standard for cranes (ANSI B30.5) that was published in 1968 and has been out of 

print and unavailable for years. In the meantime, cranes have an undergone a technological evolution that has transformed them into versatile and sophisticated 

10

pieces of machinery, equipped in many cases with electronic control systems that 

would challenge the skills of a commercial airline pilot. 

This situation has to change. OSHA recognized that much when, in the summer 

of 2003, it assembled 25 of the most qualified individuals in the industry and put 

them to work over a 12-month period to revise its outdated requirements. The 

Cranes and Derricks Advisory Committee (C-DAC), meeting once per month over an 

11 month period, completed its work as requested, and delivered its report to the 

Department of Labor in August 2004. It is, by all assessments a remarkable document, developed in record time by industry experts without peer. To this date, despite numerous industry protests, and a unanimous endorsement for C-DAC’s recommendations by OSHA’s Advisory Committee on Construction Safety and Health 

(ACCSH), OSHA has not issued a proposed rule. 

This rule needs to be published and implemented for many of the reasons we are 

assembled here today. Among its widespread provisions are accredited certification 

for crane operators, and heightened training and qualification for signalpersons, two 

essential elements, in our view, for improving safety on construction sites around 

the nation. 

Calls for such measures are widespread with the industry. Just last week, a report (2) was published by the Center for Construction Research and Training 

(CPWR) that analyzes Bureau of Labor Statistics (BLS) data for 323 construction 

worker deaths attributable to crane accidents between 1992 and 2006. It makes 

eight (8) recommendations. No. 1 is for crane operators to be certified; no. 2 for 

riggers and signalpersons to be certified; and no. 3 for crane inspectors to be certified. 

Mr. Chairman, reports have been released this year, in New York State and more 

recently in New York City, that would imply the existence of state and city exam 

design and administration that fall well below acceptable standards. It is alleged 

that licenses have been issued without appropriate candidate assessment that reflects competency by an individual in the area being assessed. This is far worse than 

no license at all, for it implies competency in an individual when, in fact, a candidate may have failed a test or even not have tested at all. Clearly, a testing instrument (such as a state or city exam), must be beyond reproach in both its design 

and administration for employers and the general public to have confidence in the 

process. 

In this context, I would draw your attention to the fact that whenever I have 

talked this morning about ‘‘certification’’ I have done so with the qualification of ‘‘accredited certification.’’ The organization I represent believes it is critical that any 

third-party certification body be subject to onsite audit of its policies and procedures 

to ensure it has developed and continues to administer written and practical examinations that are fair, valid and reliable. 

Fortunately, there is a simple way for those who have a stake in construction 

safety matters to ensure only professionally developed certification is specified—and 

that is by ensuring that only certification bodies whose programs have been accredited by the American National Standards Institute (ANSI) are permitted to administer certification assessments. ANSI has developed a compliance program that 

meets the requirements of the ISO 17024 Requirements for Bodies Operating Certification of Persons and is the only accrediting body that requires onsite assessment 

of a certifying body as a condition of accreditation. 

In closing, Mr. Chairman, I would like to thank you and this Committee for providing NCCCO an opportunity to present these recommendations for improving safety on worksites wherever lifting equipment is being used. NCCCO stands prepared 

to lend its expertise in assisting this Committee to achieve that goal. 

REFERENCES

Survey, May 2008, by the Specialized Carriers & Rigging Association (SC&RA), 

2750 Prosperity Avenue, Suite 620, Fairfax, VA 22031. 

McCann, Michael, PhD, and Gittleman, Janie, PhD. Crane Related Deaths in Construction and Recommendations for Their Prevention, The Center for Construction Research and Training, June 2008. 301/495-8525. 

NCCCO PROGRAM STATUS JUNE 2008

NCCCO ‘‘BY THE NUMBERS’’: 

NO. EXAMS ADMINSTERED: 325,000+

NO. OF WRITTEN TEST ADMINISTRATIONS CONDUCTED: 5,000+

NO. OF PRACTICAL TEST SITES APPROVED: 1,700+

NO. OF CRANES APPROVED FOR PRACTICAL EXAM TESTING: 5,000+

NO. OF STATES IN WHICH TESTING HAS BEEN CONDUCTED: 50

CERTIFICATIONS AVAILABLE: 

11

MOBILE CRANE OPERATOR 

TOWER CRANE OPERATOR 

OVERHEAD CRANE OPERATOR 

RIGGER (2008) 

SIGNALPERSON (2008) 

ARTICULATING CRANE OPERATOR (2009) 

ACCREDITATIONS: 

AMERICAN NATIONAL STANDARDS INSTITUTE / ISO 

NATIONAL COMMISSION FOR CERTIFYING AGENCIES 

NATIONAL SKILL STANDARDS BOARD 

FEDERAL RECOGNITION: 

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION 

DEPARTMENT OF ENERGY 

OFFICIAL APPROVAL: 

DEPARTMENT OF EDUCATION 

DEPARTMENT OF DEFENSE 

DEPARTMENT OF VETERANS AFFAIRS 

STATES ADOPTING CCO PROGRAM: 

WEST VIRGINIA (2001) 

HAWAII (2003) 

NEW JERSEY (2004) 

CALIFORNIA (2005) 

MONTANA (2005) 

NEW MEXICO (2007) 

MINNESOTA (2007) 

NEVADA (2007) 

UTAH (2007) 

WASHINGTON (2010) 

FLORIDA (PROPOSED) 

PENNSYLVANIA (PROPOSED) 

MARYLAND (PROPOSED) 

IOWA (PROPOSED) 

NATIONAL INDUSTRY PARTNERSHIPS: 

AMERICAN SOCIETY OF CIVIL ENGINEERS (ASCE) 

AMERICAN SUBCONTRACTORS ASSOCIATION (ASA) 

ARTICULATING CRANE COUNCIL OF NORTH AMERICA (ACCNA) 

ASSOCIATED EQUIPMENT MANUFACTURERS (AEM) 

ASSOCIATED GENERAL CONTRACTORS OF AMERICA (AGC) 

CRANE MANUFACTURERS ASSOCIATION OF AMERICA (CMAA) 

INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE) 

SPECIALIZED CARRIERS & RIGGING ASSOCIATION (SC&RA) 

STEEL ERECTORS ASSOCIATION OF AMERICA (SEAA) 

Chairman MILLER. No objection. 

Mr. MCKEON. Thank you, Chairman Miller, and I yield back the 

balance of my time. 

[The statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ‘‘Buck’’ McKeon, Senior Republican 

Member, Committee on Education and Labor 

Good morning Chairman Miller, members of the Committee, and our panel of witnesses. We’re here this morning for a broad overview of OSHA’s efforts to ensure 

worker safety within the construction industry. 

Given a number of recent high-profile crane accidents, I expect that we will also 

look specifically at the crane and derrick standard currently in place, as well as the 

pending update to that standard that began with a negotiated rulemaking process 

in 2004. It’s my understanding that OSHA sent a proposal to revise and update the 

crane rule to the Office of Management and Budget earlier this month for final review, and that we can expect to see final regulations in place before the end of the 

year. 

Media reports have shown the devastation that can occur when construction 

equipment fails. As we have seen, this problem has not been isolated in one area 

of the country, but has had consequences nationwide. 

Construction cranes, for instance, are powerful tools in today’s construction arena. 

They are being built higher, can carry larger loads, and—if used properly—improve 

the efficiency of a construction project. Cranes can eliminate many man hours for 

lifting and moving supplies and materials on the jobsite. They can also be among 

the most dangerous equipment for construction workers to be around. Constant vigilance is vital when workers are moving in and around functioning cranes. 

Investigations into a number of recent crane accidents are still underway, and I 

expect these investigations to provide valuable information about how to prevent 

12

such tragedies in the future. However, I am very troubled by allegations in The New 

York Times that the city’s chief crane inspector has been accused of taking bribes 

to certify cranes as operational and workers as having successfully passed licensing 

exams. I request unanimous consent to include this article, dated June 7, 2008, in 

the hearing record. 

Construction is vital to economic growth. But it’s also an inherently dangerous industry, and that’s why it’s so important that steps be taken to help mitigate the 

risks and protect the workers. Because of the unique characteristics of construction 

job sites and their associated dangers, OSHA has put in place specific and extensive 

regulations directed at the construction industry. I look forward to learning more 

about those standards today. 

We have before us a distinguished panel of experts including OSHA Administrator 

Foulke, who has taken over the development of the crane regulation I mentioned 

earlier in the midst of its development. I am hopeful he will provide us with an update on the crane rulemaking that has been developed, as well as the other specific 

safety standards applicable to the construction industry. 

This hearing is an important first step to examine safety protections for workers 

in the construction industry, with a particular emphasis on the crane accidents that 

have drawn so much attention in recent months. I anticipate that the conclusion of 

OSHA’s investigations will also help shape public policy on this important issue. 

I would also request unanimous consent to include testimony for the record from 

Mr. Graham Brent, executive director of the National Commission for the Certification of Crane Operators. When this hearing was originally scheduled we were notified that it would focus exclusively on crane safety. Although the scope of the hearing has been expanded, I believe the record will be enhanced with inclusion of Mr. 

Brent’s testimony. 

Thank you Chairman Miller, and I yield back the balance of my time. 

Chairman MILLER. I thank the gentleman. 

I would like now to introduce our panel. First, we are joined by 

Mr. Ed Foulke, who is Assistant Secretary of Labor for OSHA. 

Prior to his current position, Assistant Secretary Foulke was a 

partner in the law firm of Jackson Lewis LLP where he practiced 

labor relations law. From 1990 to 1995, he served at the Occupational Health and Safety Commission, which he chaired from 1990 

to 1994. 

George Cole was an ironworker for over 40 years. His brotherin-law, Harold Billingsley, was killed in one of the recent Las 

Vegas construction accidents. Mr. Cole was previously the owner, 

operator and general manager of Uriah Enterprises, Inc., a steel 

fabrication and erection operation. Mr. Cole is a member of the 

Ironworkers Local 433. 

Robert LiMandri is the acting Building Commissioner of the City 

of New York, a position he was named to in April of 2008. Commissioner LiMandri joined the Building Department in 2002, first 

serving as Deputy Commissioner of Operation and later as a First 

Deputy Commissioner. 

Mike Kallmeyer is the senior vice president of Construction Services for Denier Electric Company in Columbus, Ohio. Mr. 

Kallmeyer has over 28 years of experience in the electrical field, 

having worked as an electrician, foreman, superintendant, project 

manager and department and division manager. He is currently responsible for managing the Construction Department at Denier 

Electric. 

Mark Ayers is the president of the 3-million-member Building 

and Construction Trades Department, AFL–CIO. Prior to being 

elected to that position, Mr. Ayers was the Construction and Maintenance Department director for the International Brotherhood of 

Electrical Workers. 

13

Welcome to all of you to the committee. We look forward to your 

testimony. Some of you have been here before, and you know we 

provide 5 minutes for your opening statements. And there will be 

a green light in front of you when you begin to testify. At 4 minutes, an orange light will come on, which is to suggest you might 

want to think about wrapping up, and then a red light at 5 minutes, which will end your testimony, but we obviously want you to 

be able to complete your thoughts in coherent sentences. 

So thank you. 

Secretary, we will begin with you. 

STATEMENT OF HON. EDWIN FOULKE, ASSISTANT SECRETARY 

OF LABOR FOR OSHA 

Mr. FOULKE. Thank you Mr. Chairman, Ranking Member 

McKeon and members of the committee. 

Thank you for the opportunity to appear here today to discuss 

OSHA’s efforts to protect the safety and health of employees who 

work in our Nation’s construction industry. 

Construction is dangerous work, which requires employers to exercise constant vigilance against hazards, such as false and elevated positions, trenching and excavation cave-ins, entrapment in 

confined spaces, scaffolding collapses and electrocutions. Unlike 

other workplaces that have permanent ongoing operations, construction work sites are temporary and often involve dozens of different employers conducting different tasks at a single site. The 

dangers and hazards in the construction industry are well known, 

and the challenge for OSHA is to use the best mix of enforcement, 

outreach, standards, education and proper programs to protect employees. 

Strong enforcement of safety and health standards is a vital component of our effective approach to construction safety. OSHA focuses on the four most common causes of occupational fatalities in 

the construction industry, namely falls; ‘‘struck bys’’; ‘‘caught in 

betweens’’; and electrocutions. 

In fiscal year 2007 more than half of all the OSHA inspectors, 

both Federal and State plan inspections, were conducted in the 

construction industry, resulting in the issuance of 74,816 citations. 

Specifically, OSHA issued more than 24,000 citations for violations 

of the fall protection standard; 3,300 citations ‘‘for struck by’’ violations; and 3,500 citations for electrical violations. And since 2001, 

OSHA has issued 256 penalties in the construction industry with 

penalties in excess of $100,000. Overall, OSHA has proposed more 

than three-quarters of $1 billion in penalties for safety and health 

violations since 2001. During the same period OSHA has made 64 

criminal referrals to the Department of Justice, which is more than 

any previous administration. 

In fiscal year 2008, of the 57,000 violations issued so far, 80 percent have been characterized as serious, willful, repeat, or failure 

to debate, the highest percentage ever recorded by the agency. We 

are also effectively targeting our inspections, as violations have 

been found in 78 percent of the work sites OSHA has inspected. 

In addition to a strong target enforcement program OSHA continually reviews its construction safety and health standards. 

14

There are a number of regulatory changes under consideration, including the crane and derrick standard. 

OSHA conducts national, regional, and local emphasis programs 

to target enforcement of particular hazards and industries. The 

success of this approach is demonstrated in New York where upwards of 12 employees were being killed annually in roadway work 

zones. After the establishment of a local emphasis program by 

OSHA, the number of work zone fatalities was reduced to one in 

2007. Also, a national OSHA trenching initiative which began in 

2003 has helped to reduce the annual number of trenching- and excavation-related fatalities by 46 percent. 

Along these same lines training is a critical component of an effective accident prevention program. The OSHA Training Institute 

has focused both on training our compliance officers to identify the 

hazards most common at construction work sites and on our trainthe-trainer program, in which individuals who successfully complete the required training courses are authorized to conduct training programs in construction. Over 1.6 million construction participants have been trained by these trainers since 2004. 

An example of how this training has saved lives occurred after 

a construction employee in Kansas attended one of these training 

courses and learned to don and adjust a full body harness. He and 

a coworker later survived a fall on the job because of their understanding of how to properly use this critical safety equipment. 

The construction industry employs a large number of Spanishspeaking employees. OSHA continues to develop and distribute 

Spanish-language material, such as a Spanish-English construction 

dictionary, public service announcement, quick cards and fact 

sheets, all of which are available on the agency’s Spanish Web site. 

These materials help Spanish-speaking employees identify workplace hazards. 

OSHA makes use of a variety of effective cooperative programs 

with employers, trade associations, labor organizations and others 

to provide safety and health in the construction agency. OSHA’s 

voluntary protection program has 113 construction participants 

across the Nation. There are also 140 strategic partnerships with 

construction companies, which is more than 80 percent of all partnerships. 

I want to make it clear, however, that while the agency offers 

technical assistance to employers to help comply with OSHA standards, as well as recognizing employers for implementing exemplary 

health and safety systems, compliance with OSHA safety and 

health standards is mandatory, not voluntary. There is no such 

term or practice as voluntary compliance. Every employer is responsible for providing employees a safe and helpful workplace free 

of hazards. OSHA is committed to enhancing construction safety 

and to continue to provide employers and employees with safety information and to ensure that work sites comply with existing safety 

regulations. 

I can assure the committee that construction safety is a top priority for OSHA and that we are striving to ensure that all employees return safely to their families and friends at the end of each 

and every workday. 

15

Thank you, Mr. Chairman, and I would be happy to answer any 

questions that you may have. 

[The statement of Mr. Foulke follows:]

Prepared Statement of Hon. Edwin G. Foulke, Jr., Assistant Secretary, 

Occupational Safety and Health Administration, U.S. Department of Labor 

Mr. Chairman, Ranking Member McKeon, and Members of the Committee: Thank 

you for the opportunity to appear today to discuss OSHA’s comprehensive efforts to 

protect the safety and health of employees who work in our nation’s construction 

industry. 

To accomplish its mission of saving lives and reducing injuries and illnesses, 

OSHA utilizes a balanced approach which includes: 1) strong, fair, and effective enforcement; 2) safety and health standards and guidance; 3) training and education; 

and 4) cooperative programs, compliance assistance and outreach. The Occupational 

Safety and Health Act (the OSH Act) enacted by Congress in 1970 stipulates that 

employers are ultimately responsible for providing a safe and healthful work environment. OSHA has a critical role in helping employers with their responsibilities, 

and utilizes all components incorporated in its balanced approach. 

Since 2001, as part of its strong enforcement program, OSHA proposed more than 

three-quarters of a billion dollars in penalties for safety and health violations and 

made 64 criminal referrals to the Department of Justice, which represents more 

than 30 percent of all criminal referrals in the history of OSHA and more than any 

previous Administration. In Fiscal Year (FY) 2008, of the almost 57,000 violations 

issued so far, 80 percent have been categorized as serious, willful, repeat or failureto-abate, the highest percentage ever recorded by the agency. We are also effectively 

targeting our inspections—78 percent of the worksites we inspected had violations. 

Our approach is working. All three key indicators—injury, illness and fatality 

rates—are all at the lowest levels in the nation’s history. Most importantly, the 

overall fatality rate in construction has declined by 18 percent since 2001. These 

achievements highlight the Administration’s commitment and success in protecting 

the safety and health of the nation’s workforce. 

Even with all these achievements, OSHA recognizes that there are still safety and 

health concerns to be addressed at workplaces, including construction sites. We 

must remember that a successful construction project is one that it is done safely 

and without loss of life. One fatality is one too many. 

According to data from the Bureau of Labor Statistics (BLS) Current Population 

Survey, employment in the construction industry averaged approximately 11.9 million in 2007, with approximately 16 percent of the total classified as unincorporated 

self-employed. Since FY 2003, 78 percent of all OSHA fatality investigations in the 

construction industry have been conducted on companies with 25 or fewer employees. According to the National Institute for Occupational Safety and Health 

(NIOSH), 80 percent of the construction businesses have fewer than 10 employees. 

Construction is dangerous work which requires constant vigilance against hazards 

such as falls from elevated positions; trenching and excavations; confined spaces; 

scaffolding; electrocution and exposure to dust and noise. The dangers in construction work are well known and the challenge for OSHA is to use the best mix of enforcement, outreach, education, and cooperative programs to address construction 

workplace hazards. 

Another challenge presented to OSHA by the construction industry is the nature 

of this industry. Unlike other workplaces that have permanent and ongoing operations, the work performed at construction sites is highly dynamic, often involving 

dozens of different employers at a single construction site, whether it is a large industrial project or a residential home. It is in this complex and challenging worksite 

that OSHA works with employers, employees, and their representatives to improve 

safety and health. 

OSHA is familiar with these challenges and in response, has a multi-faceted approach to reducing construction-related accidents and preventing exposures to 

health hazards. OSHA focuses on the four most common causes of occupational fatalities in the construction industry: falls; ‘‘struck by’’; ‘‘crushed by’’; and electrocutions. In addition to a strong, targeted enforcement program, OSHA continues to 

revise and update its standards, create meaningful compliance assistance resources, 

and provide outreach, education and training. OSHA is committed to protecting employees by identifying hazards, citing employers when standards are violated, and 

educating stakeholders on ways to reduce the hazards associated with construction 

work across the country. OSHA also helps employers to provide safer working enviVerDate 0ct 09 2002 13:49 Nov 09, 2008 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\FC\110-98\43026.TXT HBUD1 PsN: DICK
16

ronments by engaging in a balanced approach of enforcement and outreach to key 

stakeholders to collaborate on important safety and health issues. 

OSHA: Strong Enforcement Program for Construction 

Strong enforcement of safety and health standards is a component of our effective 

approach on construction safety. In FY 2007, approximately 51 percent of total 

OSHA inspections, both federal and State Plan inspections, were conducted in the 

construction industry. More than 67 percent of all federal and about 74 percent of 

State Plan construction inspections were programmed inspections. In FY 2007, 

OSHA issued 74,816 citations just in the construction industry. Since 2001, OSHA 

has issued 256 significant enforcement cases—those with penalties of at least 

$100,000—in the construction industry. As these statistics show, OSHA enforcement 

is strong and enforcement of our safety and health standards is a top priority of 

the agency. 

OSHA has addressed the top four causes of fatalities found in its Integrated Management Information System in several ways. The agency has been aggressive in 

issuing citations and penalties for violations of the standards that address these key 

hazards. In FY 2007, for fall protection violations, we issued 24,358 citations for a 

total of $33.5 million in penalties; for struck-by and crushed-by, we issued 3,317 citations for a total of $9.1 million in penalties; for electrical violations, we issued 

3,566 citations for a total of $2.4 million in penalties. 

Enhanced Enforcement Program 

In addition to our standard enforcement efforts, OSHA has created other enforcement mechanisms to focus on those companies that ignore their obligations under 

the OSH Act. The Enhanced Enforcement Program (EEP) complements the agency’s 

targeted approach to enforcement by addressing employers who, despite OSHA’s enforcement and outreach efforts, ignore their obligations to provide a safe and healthful work environment. The program looks at an employer’s national inspection history, not just the violations at a single facility, to determine whether failure to comply with OSHA safety and health standards is a problem at one facility or job site, 

or systemic throughout the entire company. If an employer meets the criteria for 

EEP, it will be subject to much greater enforcement scrutiny from OSHA, which 

may ultimately result in court enforcement of citations or criminal referrals. This 

program has been used in the construction industry to focus resources on companies 

that fail to adequately protect their employees. There were 1,189 EEP construction 

cases, which represents almost half of all OSHA EEP cases. After four years of implementation, OSHA revised the EEP program to focus greater enforcement emphasis on those employers that have a history of violations with OSHA (including history with the State Plans.) The revised program became effective on January 1, 

2008. 

Special Emphasis Programs 

OSHA conducts National, Regional, and Local Emphasis Programs (NEPs, REPs, 

and LEPs) that target particular hazards or industries such as trenching, amputations, and refining. These programs combine enforcement and outreach efforts to address a particular safety and health issue. OSHA has completed a number of successful emphasis programs focused on such topics as fall hazards in construction, 

mobile crane operations, bridge and tunnel construction, silica and road hazards, 

falls relating to scaffolding, and energized power lines. 

Hexavalent Chromium 

OSHA promulgated a standard on exposures to hexavalent chromium on February 

29, 2006 which reduced the permissible exposure limit (PEL). Construction employees are primarily exposed to hexavalent chromium during the welding/cutting of 

stainless steel, removing paint from existing structures such as bridges, and during 

refractory restoration. 

Portland Cement 

OSHA implemented new Portland Cement Inspection Procedures at construction 

sites as part of its settlement of a legal challenge to the new Hexavalent Chromium 

Standard by the Building and Construction Trades Department, AFL-CIO, Laborers’ 

International Union of North America, and International Brotherhood of Teamsters. 

Preventing Falls 

In 2001, OSHA issued a new steel erection standard that modified a provision to 

allow the use of nets instead of a fully planked floor. Specifically, the new provision 

provides that the employer has the option of either maintaining a fully planked/

decked floor or maintaining nets, every two stories. In 2002, stakeholders asked 

17

OSHA to permit the use of 100 percent fall protection instead of using planking or 

nets. They argued that planking is not effective fall protection and that 100 percent 

tie-off is safer than allowing connectors and deckers to work without personal fall 

protection above a planked floor. In response, OSHA issued a compliance policy stating that, if an employer used 100 percent fall protection, including for connectors 

and deckers, the failure to comply with this provision would be considered de minimis. 

OSHA agrees with the rationale that 100 percent fall protection provides greater 

protection than what is required by the standard. The standard issued in 2001 does 

not require connectors and deckers working less than 30 feet from the ground to 

use fall protection. Under the 2001 standard, if an employer chooses to have a fully 

planked floor rather than a net 30 feet below the employees, which is allowed by 

the floor/net provision, those employees would be exposed up to a 30 foot fall to a 

planked floor. In contrast, under the de minimis policy, all employees would be protected by fall protection at all times. It is the position of OSHA that greater safety 

overall is achieved by employers using the de minimis policy. 

Preventing Construction ‘‘Struck By’’ Accidents 

An OSHA NEP addressing roadway work zone safety was created after the success of a local initiative that began in OSHA’s Parsippany, New Jersey office. This 

collaborative program brings together state transportation and police authorities, as 

well as local unions, in cross-training efforts to improve hazard identification and 

correction at highway job sites. The success of this approach is reflected in New Jersey, OSHA data indicates that where 8-12 employees were being killed in roadway 

work zones annually; the number of workzone fatalities there was reduced to one 

in 2007. 

Also, OSHA updated the Signs, Signals and Barricades rule to improve protection 

for highway workzone employees. That standard had previously incorporated by reference the 1971 version of Part VI of the Department of Transportation’s Manual 

on Uniform Traffic Control Devices (MUTCD). On September 12, 2002, OSHA updated that rule so that now employers must at least comply with the 1993 version 

of the MUTCD; they have the option of complying with the Millennium version. This 

change has upgraded requirements for a variety of warning and traffic control devices. 

In addition, OSHA is conducting a study of struck-by accidents to determine patterns and root causes. 

Trenching Initiative is Successful 

The OSHA Trenching Initiative, which was begun in 2003, has proven to be successful. The trenching initiative is a large scale effort to raise awareness of trenching hazards and basic trench safety practices. Working through cooperative programs such as the American Pipeline Contractors Association, and with other stakeholders, 500,000 Trenching Quickcards, 50,000 Trenching Posters, and NIOSH’s CD 

Trench Safety Awareness Training have been distributed. Most of these training 

and education materials, such as the Quickcards, are designed specifically for use 

by the many small contractors that are engaged in trenching work. OSHA data indicates that the Initiative has helped to reduce the annual number of trenching and 

excavation related fatalities by 46 percent. 

Preventing Electrocutions in Construction 

A National Strategic Partnership between OSHA and the Electrical Transmission 

and Distribution Construction Contractors, trade associations, and International 

Brotherhood of 

Electrical Workers was originally signed in August 2004 and continues today. The 

partners represent the interests of more than 70 percent of the industry. The partnership’s tri-level leadership (CEO’s, corporate safety, employees/supervisors) harnesses industry expertise with that of OSHA to make significant progress towards 

the Partnership’s goals: reduction of fatalities through data analysis, training, and 

best practice development/implementation. 

Initially, shared data analysis drove the partners to develop and implement best 

practices; they continue to do so. The analysis also resulted in the development and 

delivery of an industry-specific OSHA 10-hour outreach training program. The 

course has reached more than 12,000 employees, foremen and general foremen. 

Most recently the partners started delivering their new Supervisory Leadership and 

Outreach Training course. It has reached more than 120 supervisors to date. OSHA 

data collected indicates that the training efforts and the implementation of best 

practices have helped accomplish the Partnership’s overall goal of reducing fatalities, which has shown remarkable progress by declining from 67.24 per 100,000 employees in 2003 to 24.55 in 2007, a 63.5 percent reduction. 

18

Unprecedented Levels of Hispanic Outreach Activities 

OSHA continues to make workplace safety and health for Hispanic employees a 

priority. The agency has a Diverse Workforce Issues Group that focuses on outreach, 

training and education issues through various means, including the OSHA—Mexican Embassy Letter of Agreement (LOA), several construction alliances, including 

alliances with the International Association of Foundation Drilling, the American 

Pipeline Contractors Association, the American Society of Safety Engineers, the National Association of Home Builders, and the Roadway Work Zone Safety and 

Health Partners, and OSHA’s On-site Consultation Program. There is active participation by our stakeholders, including foreign consulates, industry, professional associations, organized labor, community faith-based organizations, and small business 

employers to address the safety and health issues for this hard to reach segment 

of the work force. 

OSHA continues to develop and distribute Spanish-language materials such as a 

Spanish-English construction dictionary, public service announcements, posters, 

QuickCards, Fact Sheets, and many other publications, which are available on the 

Agency’s Spanish version Web site, OSHA En Espanol. In addition the Agency has 

developed Spanish-language eTools, like La Prevenciθn De Fatalidades (‘‘The Prevention of Deaths’’ in construction), which are also available on OSHA En Espanol. 

Training for Construction Employees: OSHA Construction Outreach Training Program 

The OSHA Outreach Training Program is a ‘‘train-the-trainer’’ program in which 

trainers who successfully complete the required OSHA Training Institute trainer 

course are authorized to conduct 10- and 30-hour training programs in construction 

and to give cards provided by the OSHA Training Institute to their students. This 

‘‘train-the-trainer’’ program is OSHA’s primary initiative for training employees in 

the basics of occupational safety and health hazard recognition and avoidance. 

The OSHA Construction Outreach Training Program is a voluntary program. 

However, its considerable growth has been driven through industry groups such as 

the building trades, contractors, employer associations, and specific companies. The 

endorsement by these groups has resulted in the requirement of the training as a 

condition of employment for their employees or members. Over 1.6 million construction participants have been trained by these trainers since 2004. 

OSHA Cooperative Programs 

OSHA makes use of a variety of effective cooperative programs which engages 

various stakeholders such as employers, organizations, organized labor, and others 

to improve safety and health in the construction industry. The agency’s cooperative 

programs include Alliances, Strategic Partnerships, Voluntary Protection Programs 

(VPP), and On-Site Consultation programs to name a few. 

OSHA’s VPP has 113 construction participants across the nation. There are 146 

Strategic Partnerships with construction companies which account for more than 80 

percent of all partnerships. OSHA’s newest program, OSHA Challenge, ‘‘A Roadmap 

to Safety and Health Excellence’’, has 72 participants. These programs have demonstrated that effective safety and health management systems can make a significant difference by helping to reduce injuries and illnesses by 20 percent to 80 percent below their industry average according to BLS data comparisons. In addition, 

there are 14 national construction Alliances. OSHA offers a number of opportunities 

for businesses, trade organizations, labor unions, universities and state and local 

governments to work together to protect employees in the construction industry by 

identifying and addressing workplace hazards, providing input on proposed rules, 

enhancing safety and health management systems, and promoting a national dialogue on the importance of protecting construction employees from hazards. 

I want to make it clear, however, that, while the agency offers technical assistance to employers to help them comply with OSHA standards as well as recognize 

employers for implementing exemplary safety and health management systems, 

compliance with OSHA safety and health standards is not voluntary. There is no 

such term or practice as ‘‘voluntary compliance.’’

Pending Rulemakings 

OSHA recognizes that a dynamic industry requires that we continuously evaluate 

regulations and standards. The following four items on OSHA’s current regulatory 

agenda are particularly applicable to the construction industry. 

Cranes: 

Several recent fatal crane accidents have highlighted the importance of crane 

safety. OSHA estimates that there are approximately 96,000 construction cranes in 

use each year in the United States. The recent crane accidents in New York, Miami, 

19

and Annapolis involved tower cranes. According to OSHA accident investigation 

data, in the period from 2000 to 2007, there were a total of 20 incidents involving 

tower cranes which resulted in 10 fatalities. 

OSHA is proactively engaged to improve crane safety. The Administration is in 

the final stages of preparing a proposed rule to update and improve its current construction cranes and derricks standard. The rule is being developed through a negotiated rulemaking process which provides opportunities for all stakeholders to provide input. 

The cranes and derricks proposed rule will comprehensively address the hazards 

associated with the use of cranes and derricks in construction, including tower 

cranes. Developing the proposal is a complex, large-scale project which requires diligent and thoughtful considerations of all the technical issues. Pursuant to statutory 

requirements, OSHA has completed the regulatory flexibility analysis, small business review, paperwork burden analysis, and economic impact analysis of the proposed rule. 

In addition to rulemaking, OSHA is highly engaged in a number of activities designed to heighten awareness of best practices and the construction hazards associated with crane use. OSHA’s regional offices have established Alliances and partnerships, participated in numerous training activities, and provided information and 

training as part of proactive outreach programs. 

An increasing number of Compliance Safety and Health Officers (CSHOs) are attending OSHA Training Institute’s (OTI) #2050 Cranes and Rigging Safety for Construction Course, which focuses on crane safety. Over the past 8 years, 111 Federal 

OSHA and 187 State plan employees have completed this course. OTI has also conducted a Web-based seminar in which over 670 CSHOs and other agency staff received crane safety training. Some OSHA employees in the field have also taken advantage of training opportunities provided by public and private sector entities. 

OSHA regional offices, such as Region V (Chicago), are organizing training events 

in conjunction with local unions and industry groups. The Region I office (New England) has conducted eleven different training events focused on crane safety. Regional offices have also recognized the need for additional efforts specific to crane 

use in urban and high-rise construction projects. Region I implemented a Local Emphasis Program for cranes in early FY 2008; Region IV is engaged in outreach activities on crane hazards with industry stakeholders in Florida; Region V has a 

Local Emphasis Program in high-rise construction in the Chicago area, and CSHOs 

in that region are using a Crane Initiative Questionnaire to focus attention on specific crane hazards. OSHA regional offices also are working with local building departments to exchange crane safety information. 

OSHA is currently developing a national Crane Safety Initiative that will, with 

the help of labor and industry stakeholders, heighten awareness of key crane safety 

hazards and safe practices. 

Finally, OSHA compliance officers inspect employer compliance with the OSHA 

construction crane standard as part of their inspections of construction sites. OSHA 

has detailed requirements for crane safety, which employers are required to follow. 

The requirements of the current crane standard include operational safety; a general requirement for employers to inspect construction cranes prior to each use; an 

annual inspection that must be ‘‘thorough’’ and documented, and that defects or deficiencies discovered in any inspection be repaired before the crane may be used; 

and requirements that employers conduct tower crane inspections prescribed by the 

manufacturer. Currently, there is no federal program under which OSHA is specifically charged with inspecting all construction cranes. Nor does OSHA currently require certification for crane operators. 

After the March 2008 tower crane collapse in New York City, OSHA increased inspections of large construction sites there, since those are the sites where cranes are 

most likely to be used. Similarly, the State Plan partner, New York-OSHA, staff increased outreach efforts to address crane safety. OSHA’s National Office deployed 

an engineering expert to the accident sites in New York and Miami as part of the 

agency’s on-going investigations of those accidents. 

Power Generation, Transmission and Distribution: 

On June 15, 2005, OSHA published a proposed rule to revise the general industry 

and construction standards for electric power generation, transmission, and distribution work and for electrical protective equipment. Public comments were received, hearings were held, and the final posthearing briefs were due on July 14, 

2006. 

The proposed standard included revised minimum approach distance tables. Those 

tables limit how close an employee (or a conductive object he or she is contacting) 

may get to an energized circuit part. After the rulemaking record on the proposal 

20

closed, the technical committee responsible for developing the tables in the consensus standards on which the proposal was based discovered what they believe is 

an error in their calculation of minimum approach distances for certain voltages. 

OSHA will be reopening the record on this proposal for a period of 60 days to obtain 

comments related to the affected minimum approach distances. 

Confined Spaces: 

Fatality and injury data, OSHA enforcement experience, and advice from OSHA’s 

Advisory Committee for Construction Safety and Health indicate that the existing 

construction standard for confined spaces does not adequately protect construction 

employees in confined spaces from atmospheric and physical hazards. The existing 

construction standard only requires employers to instruct their employees about 

confined-space hazards, and comply with other OSHA construction standards that 

address confined-space hazards. On November 28, 2007, the agency issued a proposed rule for confined spaces in construction that is estimated to prevent 6 fatalities and 900 injuries. 

The proposed rule addresses construction-specific needs in several ways. It uses 

a comprehensive, step by step approach to confined space safety by setting out how 

to assess the hazards, classify the space and implement effective procedures to protect employees. Since construction sites often have a number of employers working 

simultaneously, the proposed rule would require controlling contractors to coordinate confined space operations. Upstream engulfment hazards, which are typical in 

sewer-type spaces, are addressed by a requirement for an early warning system. 

Also, because conditions in these spaces during construction can change rapidly and 

unexpectedly, continuous monitoring for hazardous atmospheres would be required. 

We are currently analyzing the public comments that were submitted and have 

scheduled a hearing for July 22, 2008. 

Hearing Loss in Construction: 

OSHA is continuing work on a new hearing conservation rule for construction. 

The current requirement requires employers to implement an effective hearing conservation program but contains no details on what such a program must include. 

We are continuing the research and analytical efforts necessary to move this rulemaking forward. These include reviewing effective hearing conservation programs 

and state and international noise standards, and researching noise control methods 

such as reduced noise hand tools. 

Some of the issues under study that have added to the complexity of promulgating 

a rule include the seasonal nature of many construction jobs, the high employee 

turnover rate on many construction worksites, the temporary nature of many construction worksites, and the amount of noise generated by some commonly used construction equipment. 

OSHA is committed to enhancing construction safety, to continuing to provide employers and employees with safety information, and to ensuring that worksites comply with existing safety regulations. I assure the subcommittee that construction 

safety is a top priority for OSHA and that we are striving to ensure that all employees return safely to their families and friends at the end of every work day. 

Thank you Mr. Chairman. I would be happy to answer any questions. 

Chairman MILLER. Thank you. 

Mr. Cole. 

STATEMENT OF GEORGE COLE, FORMER IRONWORKER 

Mr. COLE. Good morning, Chairman Miller, and other distinguished members of this committee. 

My name is George Cole. I am an ironworker, retired. For 42 

years I have been in the business. 

I never thought I would be testifying that OSHA has failed to enforce safety standards for steel erection. I deeply regret that I am 

here today on behalf of my deceased brother-in-law, Rusty 

Billingsley, who plunged 59 feet to his death on the City Center 

project in Las Vegas. 

With me today is my wife, Rusty’s sister, Monique Billingsley 

Cole. 

21

To further add our overwhelming grief, after deciding on a $13,500 fine because the accident could have been prevented, Nevada OSHA then met privately with the company and withdrew all 

citations and fines, stating that Rusty’s employer bore no responsibility for his death. 

I am here today on behalf of my family and ironworkers throughout the country. Rusty’s death was not his fault. There are two 

problems here: the unsafe conditions at the workplace; and OSHA’s 

failure to enforce its own standards as they were written. We need 

assistance to confront OSHA on their failure to enforce the safety 

standards for steel erection and their misuse of compliance directives that have effectively removed vital safety provisions for ironworkers. 

The compliance directive issued by Federal OSHA, violates the 

safety regulations contained in OSHA’s Subpart R, Steel Rejection 

Standard Final Rule. OSHA standards require a decked floor every 

two floors or 30 feet, whichever is less. The compliance directive 

eliminated this safety provision for Rusty. This was never more 

evident than on October 5, 2007, when Rusty was permitted to fall 

over 59 feet to his death. Because of this directive, on that day, I 

lost my brother and I gained a statistic. 

The OSHA photos of his crushed and lifeless body will forever 

overshadow his energetic loving life and a kind generous man. On 

several occasions, representatives for the Ironworkers International 

and contractor associations have met with Mr. Edwin Foulke, Assistant Secretary of Labor, and his staff in good faith to resolve 

these issues. 

OSHA was strongly urged to rescind certain items contained in 

this compliance directive that removed safety provisions and create 

unsafe working conditions for ironworkers. Despite repeated warnings to Mr. Foulke, from industry stakeholders, members of his 

own staff and the former Deputy Assistant Secretary of Labor, Mr. 

Foulke has refused to rescind certain items contained in his compliance directive. 

Two weeks ago, Mr. Foulke visited Las Vegas and requested to 

meet with general contractors and subcontractors regarding the recent fatalities in Las Vegas. Why would Mr. Foulke come to Las 

Vegas to talk about fatalities and workplace safety when he has refused to rescind the OSHA compliance directive that has been the 

center of the controversy in Las Vegas? 

I was informed that Mr. Foulke refused to rescind certain Federal OSHA compliance directives but agreed that he would consider 

suspending them until further notice. Family members, friends, 

and brother ironworkers are disappointed that Mr. Foulke left Las 

Vegas without taking action on this compliance directive that contributed to the tragic death of my brother-in-law, Rusty. 

I am extremely pleased that Nevada OSHA has formally denounced items contained in the Federal OSHA compliance directives. After a thorough review, Nevada OSHA officials concluded 

that certain OSHA compliance directives do not provide equivalent 

protection. State plan officials refer to OSHA’s compliance directives as ‘‘underground rulemaking’’ when Federal OSHA intends to 

‘‘make policy’’ without going through a formal rulemaking process. 

This is a disservice to the stakeholders in the steel industry who 

22

rely on OSHA to provide constant enforcement and interpretation 

of safety regulations. 

Nevada now joins other State OSHA plans that have refused to 

adopt these compliance directives. The working men and women 

that build America look to OSHA to enforce the safety regulations 

for our protection. We are shocked and disappointed that OSHA 

would issue compliance directives that remove safety provisions for 

the steel erection industry that has been considered a high-hazard 

industry. Today these compliance directives continue to be a deadly 

hazard to ironworkers and a source of confusion, costly job site 

delays, and unnecessary litigation. 

On behalf of Rusty, my family and ironworkers throughout the 

country, we seek your assistance to question Mr. Foulke on OSHA’s 

current policy to not enforce the current safety standards for steel 

erection and their misguided compliance directive that removed 

vital safety provisions for ironworkers. I hope my testimony before 

you today will prevent future fatalities and help bring closure to 

our family. We believe that Mr. Foulke is accountable, and OSHA 

should be issued a willful citation for knowingly and intentionally 

violating their own standards. 

Thank you for not allowing Rusty’s death to be in vain. 

[The statement of Mr. Cole follows:]

Prepared Statement of George Cole, Former Ironworker 

Good morning Chairman Miller and other distinguished members of this Committee. My name is George Cole, I have been an Ironworker for 42 years and I never 

thought I would be testifying that OSHA has failed to enforce safety standards for 

steel erection. I deeply regret that I am here today on behalf of my deceased brother-in-law, Harold ‘‘Rusty’’ Billingsley who plunged 59 feet to his death on the Project 

City Center in Las Vegas. To further add to our overwhelming grief, OSHA withdrew all citations and fines. I am also here today on behalf of my family and Ironworkers throughout the country. We need your assistance to confront OSHA on 

their failure to enforce the safety standards for steel erection, and their misuse of 

Compliance Directives that have effectively removed vital safety provisions for Ironworkers. 

The Compliance Directive issued by Federal OSHA violates the safety regulations 

contained in the OSHA Subpart R—Steel Erection Standard Final Rule. The OSHA 

standard requires a decked floor every 2 floors or 30 feet whichever is less, and the 

Compliance Directive eliminated this safety provision for Rusty. 

This was never more evident than on October 5, 2007 when Rusty was permitted 

to fall over 59 feet to his death, because of this Directive. On that day I lost my 

brother and gained a statistic. The OSHA photos of his crushed and lifeless body 

will forever overshadow the energetic and fun loving life, of this kind and generous 

man. On several occasions, representatives from the Ironworkers International and contractor associations have met with Mr. Edwin Foulke, Assistant Secretary of Labor 

and his staff in good faith to resolve this issue. OSHA was strongly urged to rescind 

certain items contained in their Compliance Directive that removed safety provisions and created unsafe working conditions for Ironworkers. Despite repeated 

warnings to Mr. Foulke from industry stakeholders, members of his own staff, and 

the former Deputy Assistant Secretary of Labor, Mr. Foulke has refused to rescind 

certain items contained in the Compliance Directive. 

Two weeks ago Mr. Foulke visited Las Vegas and requested to meet with general 

contractors and subcontractors regarding the recent rash of fatalities in Las Vegas. 

Why would Mr. Foulke come to Las Vegas to talk about fatalities and workplace 

safety when he has refused to rescind OSHA Compliance Directives that have been 

at the center of controversy in Las Vegas? I was informed that Mr. Foulke refused 

to rescind certain Federal OSHA Compliance Directives but agreed that he would 

consider ‘‘suspending them until further notice’’. Family members, friends and 

brother Ironworkers are disappointed that Mr. Foulke left Las Vegas without taking 

any action on the Compliance Directive that contributed to the tragic death of my 

brother-in-law, Rusty. 

23

I am extremely pleased that Nevada OSHA has formally denounced items contained in the Federal OSHA Compliance Directive. After a thorough review, Nevada 

OSHA officials concluded that certain OSHA Compliance Directives do not provide 

‘‘equivalent protection’’. State Plan Officials refer to OSHA Compliance Directives as 

‘‘underground rulemaking’’ when Federal OSHA intends to ‘‘make policy’’ without 

going through a formal rulemaking process. This is a disservice to the stakeholders 

in the steel erection industry who rely on OSHA to provide consistent enforcement 

and interpretation of safety regulations. Nevada now joins other State OSHA Plan’s 

who have refused to adopt these Compliance Directives. 

The working men and women that build America look to OSHA to enforce the 

safety regulations for our protection. We are shocked and disappointed that OSHA 

would issue Compliance Directives that remove safety provisions for the steel erection industry that is considered a ‘‘high hazard industry’’. Today, these Compliance 

Directives continue to be a deadly hazard to Ironworkers and a source of confusion, 

costly jobsite delays, and unnecessary litigation. 

On behalf of Rusty, my family, and Ironworkers throughout the country, we seek 

your assistance to question Mr. Foulke on OSHA’s current policy to not enforce the 

current safety standards for steel erection, and their misguided Compliance Directives that remove vital safety provisions for Ironworkers. 

I hope my testimony before you today will prevent future fatalities and help bring 

closure to our family. We believe that Mr. Foulke is accountable, and OSHA should 

be issued a willful citation for knowingly and intentionally violating their own 

standards. 

Thank you for not allowing Rusty’s death to be in vain. 

Chairman MILLER. Thank you. 

Commissioner LiMandri. 

STATEMENT OF ROBERT LIMANDRI, ACTING BUILDING 

COMMISSIONER, CITY OF NEW YORK 

Mr. LIMANDRI. Good morning Chairman Miller, Ranking Member 

McKeon, distinguished members of the Education and Labor Committee. 

Thank you for this opportunity to discuss construction safety regulation and enforcement. And frankly, the previous testimony really hits home today. 

Like yourselves and like many Americans, I am deeply troubled 

by the recent construction accidents in New York City and across 

the Nation. While we all know construction is inherently dangerous, there is no excuse for failing to minimize the risk. 

Since Mayor Bloomberg took office in 2002, the department has 

set high expectations for integrity and accountability; raised construction safety standards for the industry; and improved our own 

enforcement of existing regulations. 

Advancing construction safety demands attention from all levels 

of government and requires a steadfast commitment from industry. 

We have 975,000 buildings under our jurisdiction and issue approximately 170,000 permits each year. We have undertaken an 

aggressive enforcement effort to promote worker safety, but it is 

simply impossible for our inspectors to be at every job site all the 

time. 

Construction safety requires dedication from all responsible parties in government, contractors, architects and engineers, owners 

and workers. Everyone has this responsibility. 

In order to meet the challenge of enhancing construction safety, 

the Department of Buildings has undertaken a seven-pronged approach: First, we nearly doubled the size of the agency and focused 

more resources to construction safety. Second, we sought new and 

24

improved regulatory oversight and enforcement tools. Third, we 

created a new enforcement program to stop problems before they 

become serious. Fourth, we supported an aggressive criminal prosecution of repeat offenders. Five, we are currently conducting a topto-bottom review of high risk construction areas to further enhance 

safety. Six, we are holding all parties accountable. And seven, we 

are focusing on education for construction workers and requiring 

site safety managers in more locations in order to have a constant 

safety presence. 

In terms of resources, we are now better able to target high-risk 

areas of construction thanks to increased staffing under Mayor 

Bloomberg and the City Council. In our special new enforcement 

plan alone, we have identified 144 dedicated engineers, architects, 

inspectors, lawyers and support staff working to raise construction 

safety standards and to aggressively enforce them. 

Expanding our regulatory and enforcement tools has also been a 

crucial component to advancing construction safety. On July 1st of 

this year the new New York City construction codes go into effect. 

They put construction safety front and center and replace the city’s 

outdated 1968 building code. We are also launching our construction analysis and oversight plan, an unprecedented top-to-bottom 

examination of crane, concrete and excavation operations, to improve industry practices, government oversight to minimize the 

risk. 

On the enforcement front, we are actively issuing stop-work orders, a particularly effective tool that we have in our arsenal that 

allows us to immediately halt unsafe construction. 

Finally, earlier this month, Mayor Bloomberg and members of 

the City Council announced an aggressive legislative package that 

would enable the department to track various types of contractors 

by their safety records. Overall, it has been an enormous but necessary ongoing effort. 

However, improving construction site safety also requires the 

Federal Government to take an active and aggressive role. I am 

proud of New York City’s partnership with OSHA, as much of our 

progress would not have been possible without their dedicated 

staff. 

Yet it is clear that had OSHA had more additional staff, our 

achievements would be far greater. I urge Congress to follow New 

York City’s lead in allocating increased funding to construction 

safety and provide additional resources to OSHA so they can deploy 

the construction safety inspectors they so desperately need. 

Right now, we have approximately 7,500 active new building construction sites and 8,000 additional major alterations. As was indicated earlier, OSHA has a minimal number of compliance officers. 

They simply cannot cover enough ground. 

While OSHA inspectors do their best to respond to emergencies 

and complaints, they lack the critical enforcement tool I mentioned 

earlier, the stop-work order. Without authority to halt unsafe work 

when they find it, OSHA inspectors can only issue fines. 

I want to get to cranes. The tower cranes that build our skyscrapers are like airplanes: They cross State lines. They demand 

regular maintenance and need skilled operators. They have interchangeable parts. We first support the first modernization of the 

25

crane OSHA rules. Because these cranes move across State lines, 

it is important that the Federal guidelines be updated. In addition, 

what we would like to see is an invaluable black box technology to 

be required in every tower crane across the country. Third, cranes 

that have these interchangeable structural components must be 

clearly labeled and must be able to track over their lifetime. And 

fourth, we are strengthening and expanding tracking and testing 

requirements for tower crane components. 

We can do a lot in New York City, but the entire Nation deserves 

better. The time is now to make meaningful changes. Facilitating 

development does not require turning a blind eye to safety. In New 

York City, we will not. 

Thank you. 

[The statement of Mr. LiMandri follows:]

Prepared Statement of Robert LiMandri, Acting Buildings Commissioner, 

City of New York 

Good morning Chairman Miller, Ranking Member McKeon, Congresswoman 

Clarke and members of the Education and Labor Committee. Thank you for this opportunity to discuss construction safety regulation and enforcement. 

Like yourselves and like many Americans, I am deeply troubled by recent construction accidents in New York City and across the nation. While we all know construction is inherently dangerous, there is no excuse for failing to minimize that 

risk. The Department of Buildings recognizes this, and we are working hard to advance construction safety in New York City. 

Since Mayor Bloomberg took office in 2002, the Department has set high expectations for integrity and accountability, raised construction safety standards for the 

industry and improved our own enforcement of existing regulations. 

Advancing construction safety demands attention from all levels of government 

and requires a steadfast commitment from industry. The New York City Buildings 

Department has 975,000 buildings under its jurisdiction and issues approximately 

170,000 permits each year. We have undertaken an aggressive effort to promote 

worker safety, but it is simply impossible for our Inspectors to be at every site at 

all times. Construction safety requires dedication from all responsible parties—government, contractors, architects, engineers, developers, owners and workers. Everyone has a responsibility. 

In order to meet the challenge of enhancing construction safety, the Department 

of Buildings has undertaken a seven-pronged approach—(1) we nearly doubled the 

size of the agency and focused more resources to construction safety; (2) we sought 

new and improved regulatory oversight and enforcement tools; (3) we created a new 

enforcement program to stop problems before they become serious; (4) we supported 

aggressive criminal prosecution of bad actors and repeat offenders; (5) we are currently conducting a top to bottom review of high risk construction areas to further 

enhance safety; (6) we are holding all parties accountable; and (7) we are focusing 

on education for construction workers and requiring site safety managers in order 

to have an constant safety presence. 

In terms of resources, we are now better able to target high-risk areas of construction, thanks to increased staffing under Mayor Bloomberg and City Council. In our 

new Special Enforcement Plan alone, we have 144 dedicated staffers working to 

raise construction safety standards and to aggressively enforce them. 

Expanding our regulatory and enforcement tools has also been a crucial component to advancing construction safety. On July 1st the New NYC Construction 

Codes go into effect. They put construction safety front and center and replace the 

City’s outdated 1968 Building Code. We are also launching our Construction Analysis and Oversight Plan, an unprecedented top-to-bottom examination of crane, concrete and excavation operations to improve industry practices and government oversight to minimize risk. On the enforcement front, we are actively issuing Stop Work 

Orders—a particularly effective tool we have in our arsenal that allows us to immediately halt unsafe construction. Finally, earlier this month, Mayor Bloomberg and 

members of City Council announced an aggressive legislative package that would 

enable the Department to track various types of contractors by their safety records. 

Overall, it has been an enormous—but necessary—ongoing effort. However, improving construction site safety also requires the federal government to take an active 

and aggressive role. 

26

I am proud of our partnership with OSHA, as much of our progress would not 

have been possible without their dedicated staff. Yet it is clear that if OSHA had 

more resources and staff, our achievements would be far greater. I urge Congress 

to follow New York City’s lead in allocating increased funding to construction safety 

and provide additional resources to OSHA so they can deploy the construction safety 

inspectors they desperately need. 

New York City has nearly 7,500 active, new building construction sites, plus nearly 8,000 major alterations and demolition sites under the Buildings Department’s 

jurisdiction. OSHA has approximately 15 compliance officers for Manhattan, Brooklyn and Queens to enforce construction worker safety—including bridges, tunnels 

and other areas not under our Department’s purview. Additionally, OSHA officers 

must also respond to incidents in parts of northern New Jersey and upstate New 

York. They simply cannot cover enough ground to show a meaningful enforcement 

presence. 

While OSHA’s inspectors do their best to respond to emergencies and complaints, 

they lack the critical enforcement tool I mentioned earlier—the Stop Work Order. 

Without authority to halt unsafe work when they find it, OSHA inspectors can only 

issue fines. While fines can be a disincentive, they do not carry the same immediacy 

as a Stop Work Order. 

Recently, national attention has focused on crane safety after two crane collapses 

in New York City, as well as other crane problems across the country. This is a call 

to action for all of us. In New York, we have implemented new protocols and procedures, conducted inspection sweeps of cranes and are stepping up enforcement. But, 

we cannot do this alone. 

The tower cranes that build our skyscrapers are like airplanes. They cross state 

lines, demand regular maintenance, need skilled operators, have important interchangeable parts—and bring catastrophic results when they fail. In New York City, 

we have been working closely over the past three weeks with industry, developers 

and labor to improve crane safety and to implement a set of safety proposals I announced yesterday. Of the new safety requirements we are pursuing, four necessitate strong Federal and OSHA oversight and involvement: 

First, we support the proposed modernization to OSHA’s crane rules. Countless 

American cities and states depend upon these antiquated regulations because they 

have no localized crane oversight of their own. Because tower cranes are transitory, 

it’s imperative a better federal standard is established. The nation cannot wait another moment until the outdated OSHA tower crane regulations are revised to meet 

the demands of modern construction. Even though we are past the June 1 deadline 

in which no new Federal standards can be enacted, the Administration should make 

a special exception and pass these important crane standards now. 

Second, the invaluable ‘‘black box’’ technology must be required in every tower 

crane across the country. This is the same technology used in airplane accident investigations. 

Third, cranes have many interchangeable, structural components. These crucial 

parts must be clearly labeled to track them over their lifetimes. 

Fourth, we are strengthening and expanding tracking and testing requirements 

for tower crane components. We are acting now, but this should fall under Federal 

requirements because these cranes follow construction sites across state lines. 

We can do a lot in New York City—but the entire nation deserves better crane 

regulations. Only the federal government can guarantee that. 

The time is now to make meaningful and lasting changes to minimize construction risk in New York City and across the country. Together, we can push all the 

responsible parties on the job site, from the workers to the managers and equipment 

users and most importantly, the contractors who supervise them, to make safety 

their top priority. It’s going to take all of us to meet this challenge. Facilitating development does not require turning a blind eye to safety, and in New York City we 

won’t. 

Thank you. 

Chairman MILLER. Thank you very much. 

It is the intention of the Chair to take Mr. Kallmeyer’s testimony 

now. We will then break for a vote, and we will be right back after 

the vote. 

Mr. Kallmeyer, welcome. 

27

STATEMENT OF MIKE KALLMEYER, SENIOR VICE PRESIDENT, 

CONSTRUCTION SERVICES, DENIER ELECTRIC COMPANY 

Mr. KALLMEYER. Chairman Miller, Ranking Member McKeon, 

distinguished members of the committee, I appreciate the opportunity to appear before you today. 

My name is Mike Kallmeyer. I am the senior vice president of 

construction at Denier Electric in Columbus, Ohio. I have almost 

30 years of experience in the electrical contracting field. I am 

pleased that the committee has decided to examine a subject that 

is of the utmost importance, workplace safety. 

Project safety is a key component of any successful contractor’s 

business model. A safe job site is essential for maintaining employee morale and performance, and thus increases the contractor’s 

ability to run a profitable business. Our goal is always to prevent 

accidents rather than simply reacting to them after the fact. I am 

hopeful that today’s hearing will serve to convince the committee 

that the best way to improve workplace safety is by continually 

working to prevent job site accidents. 

Bad contractors who neglect safety rules and put their employees 

at risk should be punished to the fullest extent of the law. At the 

same time, it is important to recognize that the vast majority of 

employers care about their employees’ safety and strive to run 

clean job sites that are safe and efficient. By working cooperatively 

to educate employers about the necessary workplace safety techniques and procedures, agencies such as the Occupational Safety 

and Health Administration can help continue the overall decrease 

in job site accidents that we have witnessed over the past several 

years. 

At Denier Electric, workplace safety is part of our culture. It is 

part of our culture because it is the right thing to do for our employees and it is the right thing to do for our business. Make no 

mistake about it, being an electrician can be a hazardous way to 

earn a living. But I can tell you from personal experience that our 

industry’s workplace safety practices and techniques are dramatically improved from 20 years ago and that they are continually 

evolving to meet the high expectations that we set for ourselves. 

That is why Denier encourages and practices workplace safety 

techniques through its own training and education programs, as 

well as the resources of our trade association, the Independent 

Electrical Contractors. 

Safety on the job site must be part of everything we do as a business. It must be part of Denier Electric’s culture if we want it to 

be effective. To put this in context, I believe it will be beneficial to 

give you real world examples of how Denier makes safety part of 

everything that our employees do. First, all of our employees receive training in what we call a safety indoctrination before they 

ever set foot on one of our job sites. Our electrical apprentices receive the OSHA 10-hour outreach training as part of their apprenticeship educational program. Additionally, we provide the OSHA 

30-hour training for all Denier Electric field supervisors and annually update the 10-hour training for all employees. Along with that, 

each Denier Electric employee completes all the industry-recognized safety courses required for their field of employment. Denier 

28

Electric also offers a Drug Free Workplace Program and offers rehabilitation assistance for anyone in need. 

At the start of every construction project, we perform a hazard 

analysis of that particular job site, conducted by a Denier safety director in collaboration with field employees. He then conducts sitespecific training for each construction site. And employees are provided with the necessary personal protective equipment for every 

job. 

Along with that, we initiate a daily ‘‘frequent and regular’’ inspection of each construction site conducted by field management 

or employees to identify hazards and mitigate the risks. 

Denier performs an incident investigation should an accident or 

‘‘near miss’’ occur. These investigations are conducted by a team 

composed of management, employees, our safety director and, if 

necessary, an outside safety consultant. Senior management reviews all investigations to ensure that any corrective actions are 

completed. 

Secondly, we utilize employee incentive programs to continually 

improve the safety of our company. I understand that some are 

critical of incentive programs, but I have seen firsthand that a 

properly run incentive program produces tangible results. Our incentive program rewards individuals with good safety records, individuals who exceed our own training requirements, and individuals 

who volunteer to serve on our safety committee. In order to ensure 

that this program is truly effective, Denier’s incentive program and 

safety policies are reviewed annually by a team of employees, management and outside safety consultants. 

A safe job site is a productive job site. And as you can see, at 

Denier, we take our safety programs very seriously and do everything we can to make our workplace safe. As I mentioned earlier——

Chairman MILLER. And with that, we are going ask you to wrap 

up because we have got to sprint to make a vote here. 

Thank you. Your entire written statement will be put into the 

record. 

Mr. KALLMEYER. Thank you. 

If I may conclude with a point that I made at the beginning of 

the testimony, I believe that the most effective action for government is to aggressively promote its educational partnerships with 

the industry so that more employers have the resources to improve 

the workplace. By working together, industry and government can 

provide employers with the educational resources that they need to 

prevent accidents before they happen. 

I would like to thank the committee for this opportunity, and I 

encourage you to work with your constituents, both employers and 

employees, to cooperatively improve job site safety. 

Thank you. 

[The statement of Mr. Kallmeyer follows:]

Prepared Statement of Mike Kallmeyer, Senior Vice President for 

Construction, Denier Electric 

Chairman Miller, Ranking Member McKeon, distinguished Members of the Committee, I appreciate the opportunity to appear before you today. 

29

My name is Mike Kallmeyer, and I am the Senior VP for Construction at Denier 

Electric, in Columbus, Ohio. I have almost 30 years of experience in the electrical 

contracting field. 

I am pleased that the Committee has decided to examine a subject that is of the 

utmost importance; workplace safety. Jobsite safety is one of the key components 

of any successful contractor’s business model. A safe jobsite is essential for maintaining employee morale and performance, and thus increases the contractor’s ability to run a profitable business. 

Our goal is always to prevent accidents, rather than simply reacting to them after 

the fact. I am hopeful that today’s hearing will serve to convince the Committee that 

the best way to improve workplace safety is by continually working to prevent jobsite accidents. Bad actors who neglect safety rules and put their employees at risk 

should be punished to the fullest extent of the law. At the same time, it is important 

to recognize that the vast majority of employers care about their employees’ safety 

and strive to run clean jobsites that are safe and efficient. By working cooperatively 

to educate employers about the necessary workplace safety techniques and procedures, agencies such as the Occupational Safety and Health Administration (OSHA) 

can help continue the overall decrease in jobsite accidents that we have witnessed 

over the past several years. 

At Denier Electric, workplace safety is part of our culture because it is the right 

thing to do for our employees and for our business. Make no mistake about it, being 

an electrician can be a hazardous way to earn a living. I can tell you, from personal 

experience, that our workplace safety practices and techniques are dramatically improved from 20 years ago, and that they are continually evolving to meet the high 

expectations that we set for ourselves. 

That is why Denier encourages and practices workplace safety techniques through 

its own training and education programs, as well as the resources of our trade association, the Independent Electrical Contractors (IEC). 

Safety on the jobsite must be part of everything we do as a business, it must be 

part of Denier Electric’s culture, if we want to be effective. To put this in context, 

I believe it will be beneficial if I give you real world examples of how Denier makes 

safety part of everything that our employees do. 

First, all of our employees receive training in what we call ‘‘safety indoctrination’’ 

before they ever set foot on one of our jobsites. Our electrical apprentices receive 

OSHA training as part of their educational program. Additionally, there is OSHA 

30 hour training for all Denier Electric employees. Along with that, each Denier 

Electric employee completes all of the industry recognized safety courses required 

for their field of employment. Denier Electric also offers a Drug Free Workplace Program, and offers rehabilitation assistance for anyone in need. 

On every one of our jobsites, each day begins with a ‘‘pre-shift huddle’’ where 

management and employees perform a hazard analysis of that particular jobsite. 

Denier’s safety director also conducts site-specific training for each job, and Denier 

employees are provided with the necessary personal protective equipment for every 

job. Along with that, we initiate a daily ‘‘frequent regular inspection’’ of each jobsite, 

conducted by management and an employee representative. 

Denier performs incident investigations, should an accident or a ‘‘near miss’’ 

occur. These investigations are conducted by a team composed of management, employees, and an outside safety consultant. 

Secondly, we utilize employee incentive programs to continually improve the safety of our company. I understand that some are critical of incentive programs, but 

I have seen firsthand that a properly run incentive program produces tangible results. 

Our incentive program rewards individuals with good safety records, individuals 

who exceed our own training requirements, and individuals who volunteer to serve 

on our safety committee. In order to ensure that this program is truly effective, 

Denier’s incentive program is reviewed annually by a committee of employees, management, and an outside safety consultant. 

A safe jobsite is a productive jobsite, and, as you can see, at Denier we take our 

safety programs very seriously and do everything we can to make our workplace 

safe. 

As I mentioned earlier, Denier belongs to IEC, which is an organization that is 

very active in promoting and educating its members about jobsite safety. IEC provides its members and their employees with numerous tools and resources to improve their work sites. 

A key to making progress with jobsite safety is continually educating contractors. 

Often times, employers may be unaware of the latest changes to safety regulations. 

OSHA’s cooperative programs, with organizations such as IEC, serve as a valuable 

30

conduit for ensuring that the busy contractor is kept up to speed on the latest regulations and workplace practices. 

One of the keys to IEC’s safety program is its Alliance program with OSHA. As 

part of IEC’s agreement with OSHA, IEC commits to educating its members about 

OSHA regulations as well as relaying the best industry practices that are being promoted by OSHA. 

At the same time, IEC can assist OSHA in ensuring that its guidance and regulations are effective and realistic. The Internet has allowed so much more information 

to be available to business owners, large and small. OSHA and IEC are using this 

resource to better educate contractors about the value of jobsite safety, as well as 

providing contractors with the resources to make safe jobsites a reality. IEC, as part 

of its Alliance program with OSHA, works with OSHA officials to produce informational pieces and articles—such as ‘‘e-Tools’’—that are available through OSHA’s 

web site, as well as IEC’s. 

An excellent example of this partnership is IEC’s Jobsite Safety Handbook, which 

was produced in cooperation with OSHA. The idea behind this Handbook is to provide contractors with a pocket-sized guide for their supervisors and employees in 

order to provide on-site guidance for the often complex problems that electricians 

can face every day. 

Since its production last year, IEC has distributed more than 25,000 copies of this 

guidebook to its contractor members, and more are being printed in order to meet 

the continued demand for this useful resource. 

I am proud that Denier Electric is currently beginning the application process to 

participate in OSHA’s Voluntary Protection Program (VPP). VPP is yet another example of OSHA working with industry to continually improve the workplace 

through cooperation and recognition of the best practices. 

If I may conclude with a point that I made at the beginning of my testimony, I 

believe that the most effective action for government is to aggressively promote its 

educational partnerships with the industry so that more employers have the resources to improve their workplace. 

By working together, industry and government can provide employers with the 

educational resources they need to prevent accidents before they happen. 

Programs such as OSHA’s alliances are effective and will continue to be so with 

the proper support from Congress. 

I would like to again thank the Committee for this opportunity, and I encourage 

you to work with your constituents—both employers and employees—to cooperatively improve jobsite safety. 

Chairman MILLER. Thank you. The committee will recess for a 

few minutes to run over, vote and come right back. 

[Recess.] 

Chairman MILLER. The committee will come back to order. 

If we can get the people behind the witness table to take their 

seats please. These current votes are unexpected so we are going 

to see the best we can do here. 

Mr. Ayers, welcome, and we look forward to your testimony. 

Okay. Let’s go. Thank you. 

STATEMENT OF MARK AYERS, PRESIDENT, BUILDING AND 

CONSTRUCTION TRADES DEPARTMENT, AFL–CIO 

Mr. AYERS. Thank you, Mr. Chairman. I want to thank you for 

providing me this opportunity to appear before you today and to 

discuss the very important issue of construction worker safety and 

health. 

The building trades are comprised of 13 unions, representing 2.5 

million craft professionals in the United States and Canada. We 

have a 100-year track record of improving working conditions for 

construction workers, both union and nonunion alike, because regardless of union affiliation every construction worker in America 

has the right to a safe and healthful workplace. 

31

Unfortunately and all too often today, many construction workers 

will die, be injured, or become ill due to hazardous exposures on 

the job. After 20 years of steady improvement in construction safety and health, we suddenly find ourselves in the midst of a safety 

and health crisis. In the last 12 months, 17 construction worker 

deaths have occurred in the Las Vegas, Nevada area. These deaths 

and numerous others, along with the sudden increase of construction crane accidents that have occurred recently throughout the 

United States, have drawn attention once again to the dangerous 

nature of construction work. 

Few people understand that on average four workers are killed 

every day on U.S. construction projects. Yes, you heard me correctly, four deaths every day. That equates to over 1,400 workers 

each year. Statistically, there is a much better chance of surviving 

a tour of duty in Iraq than there is in coming home from a construction project in our homeland. That is 10 times the number of 

firefighters who are killed each year, 10 times the number of law 

enforcement officers killed, more than 20 times the number of miners who are killed each year. And for every worker killed, several 

hundred workers are seriously injured. 

Mr. Chairman, I submit that if, God forbid, 17 police officers had 

perished in the line of duty we would see the National Guard patrolling the streets of Las Vegas. And if two miners became trapped 

in an underground mine accident, television networks would interrupt their regular programming for live coverage of the rescue effort. 

Nevertheless, it seems as though American construction workers 

are viewed as disposable commodities. It is an absolute outrage and 

it is something that I take very personally. Construction workers 

make up only 8 percent of the U.S. workforce, but we account for 

more than 22 percent of all work-related deaths. There is no question that the vast majority of the deaths, injuries and illnesses that 

occur in construction are preventable. 

The building trades’ commitment to job site safety led us to create in 1991 our own nonprofit institute, the Center For Construction Research and Training, to work in partnership with NIOSH 

and other organizations. Over the years, the center has made substantial progress in improving construction safety. Unfortunately, 

that progress is now being reversed. 

The responsibility of job site safety rests with employers and 

with OSHA. Today, in our opinion, both are falling far short of 

meeting their responsibilities. Therefore, the building trades submit that five major actions are urgently needed. 

One, we must have a dedicated Construction Occupational and 

Safety Health Administration, just like the Mine Safety and Health 

Administration. 

Two, we need an OSHA temporary emergency standard requiring 

that all workers in the industry are trained and certified in accordance with the basic 10-hour OSHA safety and health training program. 

Three, OSHA must promulgate a crane safety standard. 

Four, OSHA should increase job site enforcement activities. 

Five NIOSH funding should be increased for construction safety 

and health research. 

32

Mr. Chairman, 2 weeks ago, over 6,000 construction workers 

walked off the Las Vegas City Center project after the sixth construction fatality occurred at the site. In negotiations between the 

general contractor and local construction unions, we have seen to 

it that all workers at City Center and the workers at an adjacent 

project are being trained in the basic OSHA 10-hour safety program. Our analysis found that roughly 5,000 workers are without 

the basic OSHA 10-hour training. Why? Because this basic training 

is voluntary, and until now the contractors on those jobs did not 

require it. 

The building trades believes it is our moral obligation as worker 

representatives and industry leaders to make sure construction 

workers have safe and healthy workplaces. With the help of this 

committee and the Congress as a whole, we can achieve that objective. 

Thank you, Mr. Chairman, for your interest in construction safety and health. 

[The statement of Mr. Ayers follows:]

Prepared Statement of Mark H. Ayers, President, Building and 

Construction Trades Department, AFL–CIO 

Mr. Chairman and distinguished members of this Committee, I want to thank you 

for providing me with the opportunity to appear before you today to address the 

very important issue of worker safety and health in the construction industry. 

My name is Mark Ayers, and I am the president of the Building and Construction 

Trades Department of the AFL-CIO. I am a 36 year member of the IBEW, the International Brotherhood of Electrical Workers, and have served in various leadership 

positions prior to being elected as president of the Building Trades Department last 

year. 

My organization, which I will refer to as ‘‘the Department’’, is composed of 13 

international/national unions representing 2.5 million construction workers in the 

United States and Canada. The Department and its affiliated unions have a long 

history of improving working conditions for construction workers—both union and 

non-union alike. In fact, many of our organizations were founded over 100 years ago 

for that very purpose. 

Introduction 

I am here today to address the safety and health of all construction workers in 

this country: union and non-union alike. All of these workers enjoy the right, under 

federal and state law, to a safe and healthful workplace. Yet, many continue to die, 

incur injuries, and/or become ill due to exposure to dangerous substances on the job. 

You have convened this hearing because of the critical point at which we find ourselves in today. We appreciate your concern. After 20 years of steady improvement 

in construction safety and health, we suddenly find ourselves in the midst of a safety and health crisis. 

While the safety and health of construction workers has long been a priority of 

the Department, it’s the alarming number of construction worker deaths that have 

occurred in Las Vegas—12 workers have died in just 16 months—hat brings us here 

today. These deaths, along with the dramatic collapse of two tower cranes in New 

York City and other recent crane incidents in cities across the nation that have 

killed and injured construction workers, bystanders and even first responders, have 

drawn the media’s attention to the dangerous nature of construction work. 

Of course, this is not a new subject for those of us in the building trades. While 

we mourn the loss of every one of these workers, we know that by the end of this 

day, another four construction workers may lose their lives. And tomorrow, another 

two. And the next day, maybe six. 

We know this because an average of four workers are killed every day on U.S. 

construction sites. Yes, in our nation we lose, on average, four construction workers 

a day, some 1,200 to 1,500 workers each year. That’s 10 times the number of fire 

fighters who are killed each year, 10 times the number of law enforcement officers 

killed in the line of duty each year, and 20 times the number of miners who are 

killed each year. And, for every worker killed, several hundred workers are seriously 

injured. If the carnage that takes place in the construction industry happened in 

33

any other industry there would be a national outcry. Yet, the only way we seem to 

be able to get attention to this huge problem is when a crisis hits, like the one we 

are faced with now. Think about it. It is an absolute outrage. 

Construction worker deaths usually do not get front-page coverage. For the most 

part, they are usually single incidents—like an electrocution in New Jersey, a fall 

in Texas, a trench collapse in South Carolina, or a bulldozer rolling over on its operator in California. But let me tell you, they don’t go unnoticed by other workers in 

the construction community. We know what it’s like to lose a friend, and to see his 

or her family suffer. 

In 2006, 1,239 construction workers were killed on the job, or died as a result of 

their injuries. Construction workers make up only 8 percent of the U.S. workforce, 

but account for more than 22 percent of all work-related deaths. 

In 2006, according to BLS reports, 412,900 construction workers experienced injury or illness, of which 153,200 cases were serious enough to require days away 

from work. However, recent studies show the BLS survey may miss half to twothirds of all injuries due to underreporting. Moreover, the misclassification of workers as independent contractors means many more injuries are unaccounted for, since 

self-employed workers aren’t covered by OSHA or the BLS survey. 

Less than 2.5 percent of the cases are from a work-related illness, but please don’t 

let this low percentage fool you. Unfortunately, hundreds or even thousands of construction workers are being exposed at this very moment to an array of substances, 

such as asbestos, hexavalent chromium and silica, to name a few, that will cause 

disease years from now. 

The sad fact is that we as an industry and as a nation really have no idea how 

many construction workers die each day from disease resulting from job site exposures. Moreover, family members, including children, have often been exposed to 

these harmful substances as well. 

Those of us intimately involved in construction safety and health know that these 

deaths, injuries and illnesses are, by and large, all preventable. The outrageous 

number of fatalities in Las Vegas combined with crane incidents in New York and 

elsewhere has brought attention to the issue. Now that we have the attention of the 

media, the public, and, most importantly, the United States Congress, it’s time that 

we talk about the construction industry as a whole and what needs to be done about 

it. 

Describing the problems 

Workers falling to their deaths in the construction industry are not unique to the 

Vegas strip. Falls are the leading cause of death in our industry. They make up 

about one-third of all construction deaths. Fatal falls from rooftops are the most 

common, followed by falls from scaffolding and ladders. Fatal falls from girders, attributed to some of the deaths in Las Vegas, make up only 8 percent of fall fatalities. 

Workers who walk the iron have the highest rate of death among all other occupations in construction. Fortunately, due to a focused effort by all industry partners, 

death rates during steel erection have steadily declined over the years. That is a 

positive example of what can be done to improve safety and health conditions when 

there is a firm commitment to it. 

It was the Department’s commitment to improving safety and health conditions 

in the construction industry that almost 20 years ago led it to create our own nonfor-profit institute-CPWR: The Center for Construction Research and Training. 

CPWR is nationally, and even internationally, recognized as a leading organization 

in the field on construction safety and health research and training. Through its 

partnerships with NIOSH, NIEHS, and DOE, CPWR has developed an impressive 

network of over 30 collaborating organizations, including universities, as part of its 

national construction safety and health research and training center. Since 1990, 

the CPWR has been a major participant in the NIOSH construction initiative. 

CPWR currently has over 25 construction safety and health research projects underway, mostly involving development of specific interventions for hazards, such as 

falls and electrocutions. CPWR has developed and delivers an array of construction 

safety and health training courses to thousands of construction workers every year. 

CPWR also publishes the Construction Chart Book, now in its 4th edition, a copy 

of which will be submitted with my written statement. The Chart Book compiles everything there is to know about the U.S. construction industry and its workers 

based on the national data available to us. It goes into great depth about what we 

know about construction industry fatalities, injuries, illnesses, and hazards. 

As president of the Department, I also serve as president of CPWR. I’m extremely 

proud of the accomplishments of CPWR over the years. It’s one of the most successful public-private partnerships in the construction industry, or any industry for that 

34

matter when it comes to occupational safety and health. The National Academy of 

Sciences reviewed the NIOSH construction program last year. While the Academy’s 

final report has not yet been released, I’m confident that it will point to CPWR’s 

national construction center as a key element of the NIOSH construction research 

program. 

Through the work of CPWR and others we have characterized the problem and 

advanced the state of knowledge about construction safety and health significantly 

over the last two decades. In areas where we have had special emphasis efforts, 

such as preventing falls and electrocutions, we have seen significant progress over 

the past 20 years. Unfortunately, that progress in now beginning to be reversed. 

Why is the progress being reversed? Research entities can produce useful information, and unions can push for, and even bargain for safety and health provisions 

as part of the collective bargaining, but both as a legal and practical matter, employers are ultimately responsible for the safety and health of employees, and Occupational Safety & Health Administration (OSHA) is responsible for enforcing construction safety and health laws. In our opinion, both are failing us at this time. 

Recommendations 

In our opinion, five major actions are urgently needed at this time: 

1. We need an OSHA temporary emergency standard requiring that all workers 

in the industry are trained and certified in accordance with the basic10-hour OSHA 

safety and health training program. 

2. We need OSHA to promulgate a crane safety standard. 

3. OSHA needs to increase enforcement activities. 

4. We need a dedicated Construction Occupational Safety and Health Administration, just like we have a dedicated Mine Safety and Health Administration. 

5. We need to increase NIOSH’s funding for construction safety and health research consistent with the recommendations of the soon-to-be-released National 

Academies Review. 

Two weeks ago over 6,000 construction workers walked off the Las Vegas City 

Center project after the sixth construction fatality. In negotiations between the general contractor and local construction unions, it was agreed that CPWR would put 

in place a system to train all site workers at City Center, and the adjacent Cosmopolitan project, in the OSHA 10-hour training program. Our estimate is that approximately two-thirds of the workers on both sites, or roughly 5,000 workers, have 

not had the basic OSHA 10-hour hazard awareness training. Why? The basic training is voluntary and until now, the contractors did not require it on the site. 

This is not unique to these two projects in Vegas, and it brings me to my first 

point about what needs to be done as a general rule in the construction industry. 

OSHA needs to promulgate a construction training standard, making it mandatory 

for every construction worker to have, at a minimum, the basic 10-hour safety and 

health hazardous awareness training. We’ve seen several states enact legislation requiring this training, and it’s time a rule is enacted at the national level. Surely, 

requiring that workers engaged in this very hazardous industry have basic safety 

and health training is not asking for too much. 

We also need to take serious steps to change the safety and health culture on construction sites, so everyone participating in the construction process-from the owner 

to the general contractor and subcontractors to the workers-understands the premium placed on working safely. As a first step in achieving this objective, we call 

on OSHA to require every construction project to have a written safety program and 

plan that clearly spells out the safety and health requirements of the site, the respective roles of the OWNER, contractors, subcontractors and employees, and the 

systems for identifying and minimizing hazards. 

Also on the issue of standards, in 2004, a group of labor, industry, and government safety and health professionals reached a consensus on a standard for crane 

and derrick safety in the construction industry. After four years, OSHA has indicated its plans to publish the standard for public comment in August 2008. OSHA 

must live up to this commitment, promulgate a final rule, and enforce the new 

standard. 

OSHA enforcement is particularly problematic in construction, due to the transient nature of our industry. About 80% of U.S. construction industry employers 

have 10 employees or fewer, and over 2 million workers in the U.S. construction industry are classified, or should I say misclassified, as self-employed or independent 

contractors. OSHA needs to be more innovative in its targeted enforcement activities; compliance operations need to be focused on those issues and violations that 

are known killers in the construction industry; OSHA needs to redirect the resources allocated to compliance assistance and alliances to enforcement; and OSHA 

penalties for serious and willful violations need to be enhanced so that there are 

35

serious consequences for serious violations of the law, particularly in cases of worker 

fatalities. 

Although there is value in forming partnerships to encourage workplace safety, 

in my estimation the extensive resources OSHA has devoted to alliances simply 

means the agency is spending its money on contractors that are already performing 

at a relatively high level, rather than reaching those medium to small employers 

that are willingly or unwillingly putting their workers in harms way. 

According to 2006 data there were a total of 876,229 construction establishments 

in the U.S. In 2007 OSHA data indicates there were 49,666 construction inspections 

(combining Federal OSHA and State Plans), meaning that it would take OSHA an 

average of 17.6 years to inspect each construction establishment once. I don’t know 

of many construction projects that last 17.6 years, and I venture to guess that there 

are thousands of employers in our industry that will never see an OSHA compliance 

officer. 

One has to ask what good are construction industry standards if they are not enforced. Funding is certainly a critical issue, and the Department has long been a 

proponent of OSHA’s budget. However, I am of the mind that, no matter how much 

funding is appropriated, our current system may simply not work for this industry. 

I’m sure there are members of this Committee more familiar with the legislative 

history than I am, but I think we should explore the need for a dedicated Construction Occupational Safety and Health Administration, just like we have a dedicated 

Mine Safety and Health Administration. In the short term, we need a stronger Construction Directorate Office within OSHA, one that is willing to work with all industry stakeholders, and not just with a selected few. 

From before the OSHAct, it has been recognized that the construction industry 

is different from other industries in many critical aspects. It is very large, and it 

is very transient and mobile. The worksites are temporary, with many different employers and trades working on them simultaneously. The recognition of the need for 

special OSHA approaches for this industry also goes back a long way. The Secretary 

of Labor’s Advisory Committee on Construction Safety and Health existed before the 

OSHAct and was continued after OSHA to make sure that OSHA’s rules were responsive to the needs of the industry. In 1994, OSHA established a dedicated Directorate of Construction to make its operations more attuned to the needs of the industry. Both of these have been valuable resources, but they are not enough. 

The Building Trades Department and CPWR are committed to improving safety 

and health conditions for all construction workers. We will continue to develop joint 

safety and health initiatives with our employers, associations, and owners. We have 

enjoyed a longstanding partnership with NIOSH, and we have made tremendous 

strides. Congress needs to increase NIOSH funding for construction safety and 

health research consistent with the recommendations of the soon-to-be-released National Academies Review. 

Twenty years ago there was no research being performed on construction safety 

and health. Congress corrected that and began to dedicate funding for construction 

safety and health research at the National Institute for Occupational Safety and 

Health. By 1995 the budget had increased to $12.1 million, which has remained unchanged in 13 years thereafter. As a consequence, the amount of funding available 

after adjusting of inflation has significantly eroded the funding. It is today equal 

to $1 per construction industry worker. That does not say much for the priority that 

Congress places on construction safety and health. 

While it’s not our responsibility under the law, it’s our obligation as trade unionists and industry leaders to make sure construction workers’ rights to a safe and 

healthy workplace are honored. We can do better. We have to do better. 

Again, I greatly appreciate the opportunity to appear before you today. 

Thank you, and thank you for your interest in construction safety and health. 

Chairman MILLER. Thank you very much, and again thank all of 

you for your testimony. 

Mr. Foulke, it has been raised several times already this morning, how come it is taking so long to do the crane safety standard? 

My understanding was the negotiated rulemaking was completed 

in 2004. 

Mr. FOULKE. That is correct. The negotiated rulemaking was 

completed in 2004, and we have—what the negotiated rulemaking 

completed was the regulatory text of the document. OSHA has—

and that reg? text is approximately 119 pages long currently. As 

36

a result, we, OSHA, then had to then draft the preamble. The preamble in this document is over 1,000 pages long. Once that was 

completed, we had to go through the regulatory flexibility analysis. 

We had the SBREFA review, which we had for small business review, and then we had the Paperwork Reduction Act. So we had 

to do all those things during that time period. Also, we had to because of the—the standard had to be then reviewed—the text of the 

standard had to be reviewed to ensure that it was not in conflict——

Chairman MILLER. How does that compare to other, the time 

frame after other negotiated rulemakings? 

Mr. FOULKE. I don’t——

Chairman MILLER. Does it take 4 years for every other, after you 

do negotiated rulemaking, does it then take 4 years to get them in 

place? Is that standard? 

Mr. FOULKE. I’m not positive, but I believe it is probably—unfortunately——

Chairman MILLER. Do you know? 

Mr. FOULKE. I don’t know right offhand but we can check that 

out for you and get an answer for you. 

Chairman MILLER. Okay, in your statement, you talk, you stated 

in 2007 for fall protection violations we issued 24,000 citations for 

a total of $33 million in penalties. What does that tell us? 

Mr. FOULKE. What that tells us is that OSHA’s enforcement program regarding construction is working. 

Chairman MILLER. That 24,000 citations were issued and, given 

your limited ability to inspect sites, this is a good trend? 

Mr. FOULKE. No. It shows that our targeting inspection program 

for identifying where the high hazard construction sites are, where 

there may be problems, is working and that we’re getting to those 

sites and we are issuing citations. 

Chairman MILLER. So that 24,000 is the high targeted sites? 

Mr. FOULKE. I think we do have, we have special emphasis programs throughout in construction. 

Chairman MILLER. I understand that. I’m trying to determine 

what does that figure tell me? 

Mr. FOULKE. I think it focuses on obviously we are inspecting 

those where the fatalities occur, because those are automatic inspections. We are obviously—we have our——

Chairman MILLER. There were 400 fatalities due to falls. This is 

24,000. I am just trying to determine—you suggested this is a barometer of being aggressive. I don’t know what 24,000 sites tell me. 

And if I divide that into 33 million it tells me about $1,300. 

Mr. FOULKE. All I can say is I think it demonstrates we have an 

effective safety enforcement program that is focused on getting to 

the sites that have the problems and we are finding the problems 

and correcting them, or having them abated. 

Chairman MILLER. I am going to ask you to provide supporting 

evidence of that because I don’t know that. I understand that is 

what you are saying, but I don’t know that that is what it tells me. 

I don’t know if 24,000 is small because you couldn’t get to enough 

sites. I don’t than if it is abusive because you got to sites you 

shouldn’t get to. I don’t know what it tells me. It is a figure and 

a fine. I don’t know if $1,300 per incident is sufficient or not. It 

37

doesn’t sound like it. If these are serious, if these warrant violations and serious infractions, if that is what the violation brought 

about, I just—I can’t decipher that information is what I am saying. 

Mr. FOULKE. Perhaps we could break it down and provide the 

committee some additional information how that breaks down. But 

like I say, I really believe what that tells us is that our enforcement program, our targeting system, our national, local and regional emphasis programs are focused on the sites we need to be 

getting at and we are getting to where we need to get. 

Chairman MILLER. Mr. Cole, who is sitting next to you, his 

brother-in-law was killed and there was no fine. There was a preliminary fine, as I understand it, and then there was a decision to 

remove that fine later on. 

Mr. FOULKE. That is my understanding based on his testimony. 

Chairman MILLER. So you went from a preliminary fine to—of 

the employers, there was some investigation, preliminary citation 

fine was issued, and then later it was determined it was entirely 

the fault of the worker and no fine was issued. 

Mr. FOULKE. Mr. Chairman, that came under Nevada OSHA. 

And the question then becomes—I don’t know exactly what was all 

in part of that. There is the employee misconduct defense. That is 

a defense that has been recognized by the review commission, the 

Federal courts and State courts. I don’t know if that played in it 

because once again we don’t have jurisdiction over Nevada OSHA. 

So I don’t know what was involved in the negotiations. If they determined that they didn’t have the evidence to support the violations or not, I don’t know. 

Chairman MILLER. Let me just follow up on that line with the 

indulgence of my colleagues here. Nevada OSHA is one of the 

States like California. Nevada OSHA has been certified by the Federal Government. They run their health and safety as we do in 

California. 

Mr. FOULKE. That is correct. 

Chairman MILLER. In the case that I cited in my testimony and 

is laid out more exhaustively in the Las Vegas Sun, time and again 

there are assessments and fines filed, and then time and again, 

after essentially what becomes a private meeting between the employer and Nevada OSHA, those fines are substantially reduced or 

waived together. 

You have no authority to look at that enforcement to see whether 

or not that is sufficient or not, absent questioning the whole program, is that correct? You don’t get to intervene under current law 

as to whether enforcement or training or these various components 

of that are adequate? 

OSHA might have certified Nevada 13 years ago to do this. I 

don’t know when they did. And at that point it is their ball game, 

as I understand it. 

Mr. FOULKE. I was looking here. They had relinquished full authority back in April 2000 from Nevada. But to answer your question, just like in California too, once we provide, give full authority 

to the State plan, then they have full jurisdiction over their safety 

and health program. We can, though, however, issue—or go in as 

part of—what is it called—HAFVA, which is a complaint that alVerDate 0ct 09 2002 13:49 Nov 09, 2008 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-98\43026.TXT HBUD1 PsN: DICK
38

lows—Federal OSHA is a complaint about a State planned State on 

a particular item that we can go in and that is given to usually to 

the regional administrator and they do an investigation on that 

particular State plan. We also do studies and we actually are doing 

a current study. We had a complaint regarding the settlement in 

a New Orleans hotel site settlement so we are looking at those too. 

So we can go in, but it is limited. 

Chairman MILLER. I raise that point because in your testimony 

and you have said before in your appearances before this committee that these fines are an important part of your operation, 

and yet we see in this case Nevada OSHA is waiving what you considered an important enforcement tool at the national level. I am 

not holding you responsible for what they are doing. I am just saying somehow there is a different view of the universe here in terms 

of the role that these fines play in helping to diminish the accident 

rate and the ability to enforce the law. 

Mr. FOULKE. Well, like I said, once again because it was Nevada 

OSHA I am not sure what was all involved. But you need to understand as part of the settlement process that are utilized by both the 

Federal program and all the State programs is that when an employer has been issued citations and once those citations have been 

contested, there is no requirement under the act to abate those 

sites, those hazards until there is a final order of either the review 

commission or the State review commission, which is however it 

works out. And normally during the settlement process what you 

have is there is sometimes reductions in the penalty amounts or 

even the classification of the penalty, but in turn, and part of the 

reason is to get immediate abatement of the hazards so that the 

employees are protected from the safety and health hazard that 

has been identified, but secondly normally, I know from the Federal OSHA standpoint and I know from my past practices as an attorney representing employers in this area, there was always a requirement when there was a penalty reduction that something else 

would be given, done by the employer that was not required under 

either the standard or the act. 

So in effect you are getting some things for the penalty reduction, but with respect to this particular item I don’t have the information because, like I say, it was handled by Nevada OSHA. 

Chairman MILLER. I have run out of time. But I would just notice that in the Las Vegas Sun story again, Perini Construction 

Company is involved in four of these cases and yet fines continued 

to be reduced. There is something wrong with that enforcement 

plan, but we will come back to that. 

Mr. MCKEON. 

The gentleman is recognized for 5 minutes plus. 

Mr McKeon. Thank you, Mr. Chairman. Secretary Foulke, in Mr. 

Cole’s testimony he criticized OSHA for issuing a compliance directive in conflict with the underlying steel erection regulations. Can 

you explain the controversy and why OSHA has taken the position 

that it has? 

Mr. FOULKE. Yes, sir. The steel erection standard was once again 

a negotiated type of rulemaking where we had industry and the 

unions and the government involved in that, in preparing the materials. One of the biggest issues—and if you—actually I have the 

39

preamble here. If you look at the preamble, the most contentious 

issue in this whole development of the steel erection standard was 

fall protection. There was a desire to have 100 percent fall protection included in the final rule. When the final rule, there was a 

draft final rule proposed that had 100 percent fall protection in 

there. And it was distributed to all the stakeholders who were involved in the—excuse me, in the standard, in the rulemaking. At 

that point there was a request I believe from the iron workers, but 

there may be other groups that were involved, to include exceptions 

that were previously included in the proposal, the proposed regulation, the post-steel erection regulation. And the final rule was determined to have the two exceptions, and two exceptions to 100 

percent fall protection was for the—was dealing with the connectors and the deckers from 15 feet to 30 feet and also dealt with the 

shear stud issue. Those were the two things which said that you 

do not have to have fall protection, you do not have to have 100 

percent fall protection; in other words, you have to be tied off. You 

can have either a decking or netting below it at either two stories 

or 30 feet. 

Just as an example, that is 30 feet. If you fall from that, if I fell 

backwards off of that and landed on this floor, the likelihood of me 

surviving is low because if you look at—the data shows that most 

of, over 50 percent of the fatalities are less than, from falls of less 

than 30 feet. So we had that problem. And so the question was—

and it was presented to my predecessor, Mr. Henshaw—is if an employer instead of requiring to have the decking at 30 feet or two 

stories or 30 feet, whichever is less, and with respect to shear 

studs, if they didn’t have the shear studs, instead of having shear 

studs installed at the site as opposed to shop installed studs, that 

if they were using 100 percent fall protection; in other words, if 

they were tied off at all times when they are on there, would that 

be a violation of the standard? And the determination by Mr. Secretary Henshaw or Assistant Secretary Henshaw was that if they 

were using 100 percent fall protection, that they were tied off completely, that he took the position that that was as effective safety 

protection, actually it was more safety protection because—than 

what was provided in the standard because if a person falls from 

there, from a lanyard he will fall five to six feet instead of falling 

30 feet. And that is basically how it came out. But it was a contentious—if you read the standard—excuse me, read the preamble of 

the standard it says this is one of the most contentious issues of 

the standard. 

Mr McKeon. So in the case that we are talking about, of Rusty, 

they didn’t have the 30-foot or two-story protection because he was 

supposed to be tied off then? Was he supposed to be doing one or 

the other on this job? 

Mr. FOULKE. Which one. 

Mr. MCKEON. On the job that we are talking about. 

Mr. FOULKE. The fall protection, I am not sure if—I am assuming 

he was above—was at between 30 and—15 and 30 feet because if 

he was above 30 feet then 100 percent fall protection would be required under the standard. 

Mr McKeon. So what is 100 percent protection? 

40

Mr. FOULKE. One hundred percent protection is that they are in 

a harness, with a lanyard and attached to an anchoring point or 

a safety line. 

Mr. MCKEON. So if you are working above 30 feet, everybody is 

supposed to have that so that——

Mr. FOULKE. That is right. It is interesting if you read the standard. This is—the standard that was written is kind of unusual because the standard actually requires the employer to provide fall 

protection. There is a separate section other than the decking and 

netting section that requires fall protection, 1926760? requires that 

the employer provide all the fall protection, the belts, the harnesses, whatever the fall protection, the lanyards, the lifelines, and 

the employees are supposed to wear the equipment. But the standard does not require them to hook off. And it is spelled in the preamble. It is just—it was an unusual standard when it was promulgated. 

Mr McKeon. Who sets that standard? 

Mr. FOULKE. OSHA proposed the standard and—but we worked 

with the committee to get to provide——

Mr McKeon. And you signed off on something that didn’t require——

Mr. FOULKE. No, no, this was——

Mr McKeon. I don’t mean you personally. 

Mr. FOULKE. It was promulgated in the Clinton administration. 

Mr. MCKEON. I wasn’t meaning you personally. OSHA signed off 

on an agreement that indicates 100 percent protection but if you 

don’t clip off, you don’t have the 100 percent protection. 

Mr. FOULKE. No, it is only between the 15 and the 30 feet that 

you actually have to provide—between—anything over 30 feet or 

two stories they have to be hooked on by standard. Between 15 and 

30, there is an exception. 

Mr McKeon. Then how could he die if he was doing this? 

Mr. FOULKE. If he was connected to the lifeline, if he had, if he 

was following the rules—either one way or the other, either you 

had decking or netting——

Mr. MCKEON. But he was above 30 feet. He was at 60 feet. 

Mr. FOULKE. No—well, he may have been. I don’t know but——

Mr. MCKEON. Mr. Cole stated that he fell over 59 feet. 

Mr. FOULKE. Oh, this was—you are talking about—that one I am 

not sure. I don’t know the facts of that case, to tell you the truth. 

I don’t know if there was—there was something about—I don’t 

know if he fell between a hole in the flooring or not. That is what 

I had read. I think there was something in the newspaper said 

there was a hole in the flooring. 

Chairman MILLER. Do you want to respond quickly? 

Mr. COLE. I will respond, when he is done. 

Chairman MILLER. He’s done. That is one of the wonderful things 

about being chair of a committee. 

Mr. COLE. Two things I want to respond on is that sub part (r) 

clearly states that there will be one floor or 30 feet. It also states 

tie off. But that rule is being misinterpreted because the iron workers worked through the nineties to get this thing on. And it wasn’t 

just to protect the iron worker from a fall. It is to protect the people in the other trades that work underneath the 30-foot. If an iron 

41

worker or anybody or the wind would drop one item through that 

hole to a person that is walking on a floor that is being finished, 

studs are going down, and electrical is going in the floors, that can 

kill somebody with a 60-foot drop and that is why they want 30-

foot. 

It also makes it so other crafts can work underneath the iron 

workers as they go up the building. So the 30-foot hole and the tie 

off are two separate issues. And we need to separate them for a 

good accountability of what is right and what is wrong. 

Chairman MILLER. Thank you. Mr. Kildee. 

Mr. KILDEE. Thank you, Mr. Chairman. Mr. Foulke, the presence 

of cranes in any city is an indicator of generally economic growth. 

That economic growth ordinarily would indicate that we can afford 

the best safety enforcement possible. What governmental or fiscal 

factors interfere with us in providing that safety enforcement? Is 

your budget inadequate or is your enforcement authority inadequate? 

Mr. FOULKE. Well, Congressman, I would just state this, if you 

look at the fatality rates in both general industry and construction, 

they have to be continually going down. So I would say that what 

we are doing, how we are targeting that in our enforcement efforts, 

our targeting enforcement, but also our outreach program. I mentioned about the 1.6 million employees that have been trained on 

the OSHA 10-hour course as a result of our outreach to that. So 

I can’t say that—well I guess I can say I think our efforts are working. We have our effective enforcement, we are targeting them, we 

are doing the training programs. We are doing partnerships and 

our partnership programs have been very effective, especially in 

construction because that is kind of where we focused our emphasis 

on the partnerships because most of the—over 50 percent of the 

partnerships are construction. And the idea there is to help develop 

training programs, best practices, model policies, whatever it takes, 

we are working together and I think it was mentioned by one of 

the other speakers in their testimony, that that is part of what we 

have to do. We have to train the employees and we are doing that 

I think pretty effectively; 1.6 million since 2004 to me is as effective as a lot of people being trained on the OSHA 10-hour course 

and 30-hour course. 

Mr. KILDEE. How does our construction death record compare 

with European countries or Canada? 

Mr. FOULKE. I don’t know the answer to that, to tell you the 

truth. But I think we can get that information. I don’t know how 

they keep records. All I can tell you—what I can tell you though 

is that there has been a decrease in workers comp claims both in 

the United States, in Canada and the European nations. So I think 

there has been a general trend. I think the injury illness and fatality rates have been pretty much trending the same way in those 

countries. 

Mr. KILDEE. Well, the Center for Construction Research and 

Training indicates that Finland, Norway, Germany, Australia, Canada, Switzerland, Sweden have less than half the fatalities in construction than does the United States. Now it would seem to me 

that it is not meant to be personal but you should know. You are 

the guy in charge. You should know how we compare. I mean, I 

42

look at many things to see how we compare. It would seem to me 

that of all people in the country you should know how we at least 

compared to—Canada is 60 miles from my district. And Canada’s 

rate of death is about half in the construction industry. What are 

they doing right that we aren’t doing? 

Mr. FOULKE. Well, Congressman, I would say that once again our 

injury illness and fatality rates have continued to go down both in 

general industry and construction. So we are—I think we are making progress. Why Finland or even Canada or Australia, their rates 

may be low, and I don’t know, not having seen the data, if there 

is the type of construction that they do or the amount of construction that they do. In Nevada we are talking about one project that 

has 7,000 employees on the site, just one project. 

Mr. KILDEE. Canada is very similar to the United States. They 

are part of the NAFTA agreement. I can go either north, south, or 

east to get to Canada, within a matter of 1 hour. So I see that regularly and you look across the Detroit River and you see the cranes 

there in Windsor and they are doing a lot of construction there and 

yet half, that is a pretty good record, half of what we have. Why 

are we not emulating Canada? 

Mr. FOULKE. Like I say, I don’t have—I haven’t seen the data 

and so I would have to look at the data before I can give you an 

answer, and I would be happy to do that. 

Mr. KILDEE. I suggest you look at the data and visit Canada. It 

is a nice country. I see it regularly, and I see cranes there all the 

time. Just go to the Detroit River there and look on both sides and 

Canada is doing a lot of construction, yet their death rate is half. 

I yield back. 

Chairman MILLER. Thank you. I want to recognize Mr. Kline. Before I do, I just want to say the committee has been joined by Congresswoman Shelley Berkley, who represents Las Vegas. 

Mr. KLINE. 

Mr. KLINE. Thank you, Mr. Chairman. I want to echo Mr. Kildee’s notion that we should all visit as many countries as possible. 

I am not sure if he was limiting it to Canada. But it is always a 

good idea to see how the rest of the world works. 

Mr. Kallmeyer, I must admit I am looking at your lapel and 

what that pin might be. I was going to speculate it looked like 

flags. Could you tell us what that is? 

Mr. KALLMEYER. Yes, sir. It is Marine Corps and——

Mr. KLINE. Outstanding. Thank you very much. I thought it 

might be. It just looked a lot like mine. 

Mr. KALLMEYER. Semper fi, sir. 

Mr. KLINE. Semper fi, sir, and welcome. It is nice to have you 

on the committee. Mr. Kallmeyer, continuing with you, last week, 

I think it was last week, in this committee we heard testimony that 

employers were underreporting injuries and illnesses. And we also 

heard from some that safety incentive programs may encourage 

workers not to report injuries. Interesting concept. Your testimony 

outlines the Denier incentive program as successful and describes 

how it helps to ensure a culture of safety. Could you tell us how 

and elaborate on that a little bit? 

Mr. KALLMEYER. Yes, sir. At Denier Electric Company our incentive programs are heavily based on collaboration; that is, cooperaVerDate 0ct 09 2002 13:49 Nov 09, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-98\43026.TXT HBUD1 PsN: DICK
43

tion between employees, between management, field management, 

senior management, and outside consultants. Our incentive plans 

are based upon the end result, which is a safer job site. The individuals wind up with a reward for their contribution to that end 

result. If the overall safety results were not improved, they were 

not better than industry averages, there would not be any incentives there. 

Mr. KLINE. So there is no incentive for an individual to not report in the way you have it put together? 

Mr. KALLMEYER. Absolutely. If there is an unsafe situation, if 

there are employees who are not participating in education, who 

are not getting certifications for their lift operations or their trench 

ensuring operations or their lockout-tagout certifications to prevent 

electrocution, it is recorded. And if they aren’t participating, they 

are not included in those incentives. 

Mr. KLINE. Thank you. Thank you very much, Mr. Chairman. I 

yield back. 

Chairman MILLER. Thank you. The gentlewoman from New 

York, Ms. McCarthy, is recognized for 5 minutes. 

Mrs. MCCARTHY. Thank you, Mr. Chairman, and I appreciate 

having this hearing. Mr. Foulke, what are the things—and I don’t 

know if anybody had heard this question. I didn’t hear it—well, actually I did hear it a little bit. I know every time we ask if you 

had enough money to be able to run the program as it should be, 

we always have well, no, we do all right, and yet we see that there 

is such a shortage of OSHA inspectors going around. When you 

look at New York they have done a terrific job on having certainly 

a very, very large amount, probably 20 times more than what you 

have in the city alone, but one of the other things that I wanted 

to ask you also when you were talking about the safety and how 

on training the employees, is that voluntarily or is that mandatory? 

Mr. FOULKE. Madam, it depends on the particular State. There 

are some standards that have specific requirements for training. 

And it depends on which standard you will be looking at. So as a 

general rule training is not—it depends on the standard, I guess 

I have to say. 

Mrs. MCCARTHY. So some States make it mandatory, some States 

don’t make it mandatory; it is voluntary? 

Mr. FOULKE. If it is in the standard, if it is a State plan then 

they have to be as effective—it would require them to have at least 

the same level of coverage that the Federal standard has. 

Mrs. MCCARTHY. One of the problems that I see in looking at the 

testimony, Mr. Ayers, they do contracting where it becomes mandatory, if I understand from your written testimony, on training has 

to be mandatory. That is part of the contracts through the unions. 

Mr. AYERS. That is correct in some cases. But to answer your 

specific question, training is voluntary. But the difference is we 

need our employers to demand that anyone reports to a construction site has at minimum a 10-hour OSHA card. 

Mr. MCCARTHY. Exactly. That is what I am trying to get at. Why 

can’t we make it mandatory that everybody goes through 10 hours 

of training through OSHA? 

Mr. FOULKE. Well, I mean there is a mandatory training in construction, but it is not the 10 or 30-hour course. I mean we could—

44

obviously there could be a—a standard could be promulgated on 

training to require the 10 or 30-hour course. But once again——

Mrs. MCCARTHY. Do you have enough people to actually do it? 

Just say it was mandatory or even voluntarily. Do you have enough 

inspectors to be able to even carry that through? 

Mr. FOULKE. Well, even if the construction—if we had the mandatory 10 or 30-hour course, we would handle that through our 

OSHA Training Institute. We also have ed centers with universities and community colleges around the country who are doing 

that already. We trained—from 2004 to the present we have 

trained 1.6 million employees on the OSHA 10 and 30-hour 

courses. So we are doing the training. We would have the ability 

to do it through our ed centers, I believe. 

Mrs. MCCARTHY. I am just thinking about a lot of the—you 

know, you had mentioned in your testimony that we are seeing a 

lot more Hispanic workers on the job and, yes, you have done a 

program as far as putting things up as far as safety issues in that 

particular language. But again with those that are not union contracted, have they had even the correct training to be doing the job 

that they are doing? 

Mr. FOULKE. Well, once again I would say that we do have mandatory training in construction. It is not the 10 or 30-hour course, 

but we do have—and of that 1.6 million that have been trained, I 

don’t know—we don’t have a breakdown—or I don’t have a breakdown as to whether that is all union or nonunion or who it is. 

Mrs. MCCARTHY. All right. Maybe you have another number for 

me. How many construction workers do we have total in this country? Ballpark figure. 

Mr. FOULKE. I am trying to remember. I have seen the figure 

but——

Mrs. MCCARTHY. Mr. Ayers? 

Mr. AYERS. We estimate 12 million. 

Mrs. MCCARTHY. 12 million. So we have trained under your estimate 1 point?—the whole idea about OSHA, isn’t it supposed to be 

prevention? 

Mr. FOULKE. Yes, ma’am. 

Mrs. MCCARTHY. Well, we haven’t even touched the surface then. 

Mr. FOULKE. Once again it is the employers’ responsibility to 

make sure they do receive the basic training on construction. 

Mrs. MCCARTHY. But we are going around in circles here. Basically you are saying the employer. And we know that a lot of employers are doing their job, but it seems to me that an awful lot 

of employers are not doing the job because we have too many injuries and we have too many deaths on a yearly basis, even though 

you are saying the numbers are coming down. But maybe it is because there are some training programs. But isn’t it up to the Federal Government to have a standard that all construction workers 

should go under a safety training program? 

Mr. FOULKE. Well, once again the 1.6 million are the ones that 

we know that have taken the 10 and 30-hour OSHA training 

courses. We don’t know what other safety and health training other 

employees have received. We don’t keep those numbers. 

Mrs. MCCARTHY. Do you think it would be a good idea if you had 

those numbers? Just so we would have a truer picture? 

45

Mr. FOULKE. It is difficult. The reason we have those numbers 

is because they are being trained through our ed centers around 

the country. There are other consultants, safety and health consultants, there are thousands of safety and health consultants around 

the country that do training, and the employers may be providing 

training. And they may not be doing the 10 or 30-hour course, yet 

they are doing a full program of safety and health training for their 

employers and we are not capturing that. 

Mrs. MCCARTHY. What would you consider—if the employer is 

doing a safety program and it is not the 10 or 30-hour program, 

what would you consider the bare minimum that would actually 

make our workers safer. 

Mr. FOULKE. I think under the standard they are supposed to be 

advised and trained on the hazards associated with their work 

sites, what they would normally be exposed to and be able to train 

to avoid them and also training on personal protection. 

Mrs. MCCARTHY. Is it a 1-hour course? Is it a 2-hour course? Is 

that a talk before they go on the job? 

Mr. FOULKE. A 10-hour course is much more comprehensive than 

that. 

Mrs. MCCARTHY. But it is not mandatory? 

Chairman MILLER. The gentlewoman’s time has expired. You can 

answer the question. 

Mr. FOULKE. We don’t have the data. They may be being fully 

trained through the employers’ private consultants and not taking 

the 10 or 30-hour courses. And I think it is up to the employer 

maybe to design the course to be able to train the employees on the 

hazards that they are going to be associated with in their particular type of construction. 

Mrs. MCCARTHY. I will yield back but it might be curious to find 

out if Canada actually makes it mandatory for all safety training. 

Chairman MILLER. I thought we blamed everything on the Canadians. No. 

Mr. BISHOP OF NEW YORK. 

Mr. BISHOP OF NEW YORK. Thank you, Mr. Chairman. Thank you 

for holding this hearing, and I thank the witnesses for their testimony. 

Secretary Foulke, it is my understanding that a process took 

place from July of ’03 through July of ’04 with all of the stakeholders associated with proposing new regulations for crane safety. 

It is my understanding that that process resulted in consensus 

among all of the stakeholders with respect to draft regulations. 

Four years later OSHA has still not proposed a final rule. I can understand, I think, that lapse of time when the proposed rule or the 

draft regulations are contentious. But my understanding is we 

have agreement with all of the stakeholders and still we have 4 

years elapsed with no proposed rule. 

Can you comment on that and help us understand why it would 

take—when all of the stakeholders have agreed why would it take 

4 years to issue a proposed rule? 

Mr. FOULKE. Well, I would first mention the fact that the first 

negotiated rulemaking regarding steel erection took about 9 years. 

They started in 1992 and finished in 2001. 

46

Mr. BISHOP OF NEW YORK. Was that contentious or was that also 

a consensus building process such as the crane regulation process? 

Mr. FOULKE. The 100 percent fall protection issue was contentious on that. But at the same time, there was no requirement 

for——

Mr. BISHOP OF NEW YORK. If I could get you to focus on the 

crane thing. Again, why it is it that it would take 4 years? 

Mr. FOULKE. Okay. The reg text is all that the negotiated rulemaking team worked, the CDAC team developed. So we had the 

regulatory text. That is 119 pages. From there we had to develop 

the preamble which basically the preamble to any standard basically spells out in detail what each provision is determined to give 

kind of instructions to employers and employees and all business 

organizations and the unions as to what, why that particular item 

was put on that particular standard. 

The preamble to the cranes and derrick standard is over 1,000 

pages long. So that all had to be drafted by the agency. That was 

not drafted by the CDAC committee. Then we went through, and 

we are dealing with a lot of different things. We are talking about 

this is a very comprehensive standard. It is dealing with ground 

conditions, assembly, disassembly, power lines, electrocution issues, 

operator certification, safety devices, signaling and inspection. So 

we have all these things we had to work on and then we had to 

look at each one of both the construction standards that were already in place to determine if this somehow was a conflict. Then 

we had to go through the regulatory flexibility analysis. We had to 

go through the small business review process, small business review, then we had the paperwork review. Then of course you have 

to have the attorneys look it, and that is what is taking so long. 

This is a major standard. 

Mr. BISHOP OF NEW YORK. My understanding is that the White 

House has decreed there are to be no final rules proposed for 

OSHA standards subsequent to June 1. Will you request a waiver 

of that standard so as to expedite the crane standard? 

Mr. FOULKE. What we do is we have the process—you have to 

look at the process——

Mr. BISHOP OF NEW YORK. Yes or no? Will you? 

Mr. FOULKE. I have to explain the process here. It is right now 

before OMB. Once they review, provide that review then we have 

to put the proposed rule in the Federal Register and provide comment period, which will be 60 days. Then under the act, we are—

the OSHA act provides that any person can request a hearing on 

that standard. There more than likely will be a hearing on this 

standard. 

Mr. BISHOP OF NEW YORK. I think what I’m hearing is a no, that 

you will not——

Mr. FOULKE. We will have the proposed rule out some time probably by September. And then the other process goes through. So 

unfortunately the time periods that are allowed under the law are 

going to carry it into 2009. 

Mr. BISHOP OF NEW YORK. I only have time for one more question. 

Mr. LiMandri, if the draft regulations agreed to by the stakeholders with respect to crane safety had the force of law, in your 

47

opinion, would those regulations have prevented the two accidents 

that took place in New York City? 

Mr. LIMANDRI. The two different accidents that occurred in New 

York City are both under investigation, and I don’t want to compromise that investigation. I will tell you that we are here today 

because these CDAC regulations will standardize across the Nation—cranes are transitory. They go across State lines. If there are 

not Federal regulations that make the operators, the people who 

maintain those cranes, and how those cranes are worked on when 

they go in and out of a jurisdiction, and there is no standard baseline, I do think that it will have a large effect across the Nation 

on the standard. So, we are here today to support that. There are 

some very specific pieces in this that would raise the level of standard. That can make a difference. 

Mr. BISHOP OF NEW YORK. Thank you. I yield back. Thank you, 

Mr. Chairman. 

Chairman MILLER. Thank you. 

Ms. WOOLSEY. Ms. WOOLSEY. Thank you, Mr. Chairman. Actually if I was Mr. 

Cole and I was listening on the responses as to why everything 

took so long, blah-blah-blah-blah, I would be asking the question, 

why wasn’t that all in place before my brother died? Four years 

later, I mean, we take too long. So, Mr. Ayers, you said it, I mean 

you actually said in so many words that accidents have become big 

news in this country of ours, the mine accidents and the vigils, and 

Las Vegas and New York, the news, it becomes reality shows actually. 

But I’m telling you, there is nobody in the United States of 

America that does not want workers safe and healthy. So my question to you, Mr. Foulke, is what is it going to take? What is missing 

in this picture? Why can’t we do it right? You have the entire country behind you. What is it going to take from the Federal, the representatives, what is it going to take from the administration? Because right now what we have is not the will to cut in half at least 

rulemaking. So why would it take 4 years? You have your reasons 

and your rationale. If there is a will, we can do it quicker but you 

must need the support to do it. Why are we competing with enforcement, competes with prevention, competes with protection? We 

need all of it. We don’t need competing priorities. We need to keep 

our workers safe and healthy. What will it take? 

Mr. FOULKE. What I would say is once again we are focusing on 

moving the standards as quickly as we can. 

Ms. WOOLSEY. We heard that. It is not very quick. Why does it 

take so long? And I don’t want because it takes all these people 

and this and 120 pages. Then put 120 more people on it. What is 

it going to take? 

Mr. FOULKE. And we have our full reg agenda and we have people on every one of our reg agendas pushing to move this forward. 

With respect to the cranes and derricks, once—as in any of the 

standards, there are certain things that the Congress has mandated that we go through, the SBREFA panel. The SBREFA review 

is required under the SBREFA act. The courts have indicated, have 

required us to put in certain things. They require us to do feasibility and risk assessments. 

48

Ms. WOOLSEY. Do they require it to take 4 years? 

Mr. FOULKE. Well, the time period to do those things, it is not 

that we——

Ms. WOOLSEY. Okay, I can’t—you are going to repeat what you 

already said, and I don’t want you to have to do that. 

Now I have another question. I am from California. Cal OSHA 

has always been stronger than fed OSHA. That is why it was my 

understanding that Cal OSHA stood. So now we have waivers for 

quite a few States. And isn’t that based on the State being independent of OSHA if their regs and their programs are stronger, 

better in so many words? If it turns out they are not, or at least 

they don’t—aren’t equal to OSHA, how does—who and how is that 

waiver taken away from them? That right? 

Mr. FOULKE. The standard that you are talking about is under 

the act, the act originally started out with a national safety and 

health program nationwide. But the provisions of the act allowed 

for States to take over safety and health programs. The standard 

of care or requirements for the State is that they be at least as effective as the Federal OSHA and that is what you are saying, the 

Cal OSHA was stronger, has changed some of their standards to 

be more rigorous. But that is also in structure and performance. 

And so we are responsible to and we audit the States. They are 

supposed to have a strategic plan. We are supposed to make sure 

that they are making good on their goals and reducing injuries and 

fatalities. So we do audit them. 

And then as I mentioned earlier there is a—we do quarterly—

we conduct special what they call CSPA. 

Ms. WOOLSEY. Have we ever taken back the responsibility of the 

Federal Government from a State? 

Mr. FOULKE. No, we have not. It was only one time when Cal 

OSHA was going to relinquish its plan back to Federal OSHA. 

They did it for a small period of time. But we have not. But we 

have done studies on State plans and we also have what they call 

CSPA complaints where a complaint can be filed by a State concerning a State plan and we investigate that complaint. 

Ms. WOOLSEY. Mr. Chairman, may I ask one little question of 

Mr. Cole? One little question, and he will give me one little answer. 

Mr. Cole, did your brother-in-law ever complain about safety conditions on the site? And was there a employee safety committee or 

a process for complaining? 

Mr. COLE. My brother-in-law, I saw him probably 3 days prior to, 

maybe a week before his death, and he went to work at City Center 

for his overtime. He was working on another job. And after he got 

there, he did not talk to me about the job, so I can’t tell you that. 

I wish I could, but I can’t. 

Ms. WOOLSEY. Thank you very much. We are over time. Thank 

you, Mr. Chairman. 

Chairman MILLER. Mr. Holt. 

Mr. HOLT. Thank you very much. Thank you, Mr. Chairman. Mr. 

Foulke, I would like to get on the record answers to several questions. First, will we see silica standards this year? Will we see confined space standards this year? And will we see lockout-tagout 

standards this year? 

49

Mr. FOULKE. We are working on the silica standard. We are in 

the process of doing the next step in the process—doing the peer 

review of the data. And so we are moving forward on that. 

With respect to the confined spaces, I am assuming you are talking about confined spaces in construction. The confined spaces in 

construction standard we issued a proposed rule. We did receive 

comments on the proposed rule. And we also received a request for 

a hearing. And I believe the hearing on the confined space construction is July 22 of this year. So we will be moving forward with 

that. 

And the lockout-tagout, we have a lockout-tagout standard. We 

are working on a maritime. We are having regulatory hearings. We 

are going to have hearings on the maritime lockout-tagout. 

Mr. HOLT. The construction lockout-tagout is in effect? 

Mr. FOULKE. We are using the lockout-tagout for construction 

used in the general industry standard. 

Mr. HOLT. So the answer to my three questions, will we see those 

this year? 

Mr. FOULKE. You will—for silica—we are not doing a standard 

on lockout-tagout for construction. We are just doing one on maritime. We are having a hearing on that. And once the hearing is 

completed we will review that. 

On the silica, the peer review, and from peer review the next 

step after that would be a proposed rule. I don’t know if that will 

be completed by the end of the year, just depends on what the peer 

review determines. 

And on the hearing on confined spaces in construction that will 

be—like I say, is on the 22nd of July. And once we get the review 

from that, then we will go forward, make whatever changes, depends if we have no comments at the—from the hearing arguably 

the potential to have a final rule this year, there is the potential 

for that. It just depends what comes out at the hearing. 

Mr. HOLT. I understand it is customary at the end of an administration to start shedding responsibility. I would just urge you to, 

you and everyone in OSHA, to show a greater sense of urgency. I 

realize some of the work will not be completed in this administration. But I sure hope that you can have as much completed as possible and have everything else teed up for the next administration 

to implement because we are seeing too much, too many injuries, 

too many deaths. And despite your rosy statistics, it just doesn’t 

match with the experience I hear from people in the workforce and 

certainly what we see reported. 

So with that, Mr. Chairman, I say thank you for setting this up. 

Chairman MILLER. Thank you. 

Mr. SARBANES. 

Mr. SARBANES. Thank you, Mr. Chairman. And Mr. Foulke, you 

said there are 1.6 million employees that have been trained 

through the OSHA Ed program? Is that right? 

Mr. FOULKE. Usually we classify it as 1.6 participants in the 10 

and 30-hour courses. 

Mr. SARBANES. So they are getting at the minimum 10 hours 

training. Do you think it ought to be mandatory that everyone who 

is working in the industry should——

50

Mr. FOULKE. We already have a mandatory requirement with respect to training. It is with respect to specifically going to 10-hour, 

30-hour courses. I think we would have to look and see how—how 

that would impact on, there is a lot of things. To go mandatory on 

that we would have to go through once again how that would impact on small businesses. How—what is the—how would that—how 

much it would cost to this particularly the small business and how 

it would impact them, how it would be—we would also have to do 

paperwork analysis on that. So I would have to look at that before 

I say should we go to a 10 or 30-hour mandatory OSHA course. 

Mr. SARBANES. Leaving the cost and impact and so forth aside, 

just looking at what a worker comes away with training, what is 

the argument against every worker having that safety training of 

at least 10 hours? 

Mr. FOULKE. I think yeah, I know in my private, in my experience in private practice and dealing with clients that were in the 

construction industry and even in general industry. But they are 

doing a lot of training. We do not know exactly the scope of the 

training being done by the employers in-house through consultants 

or whatever. They may be providing all this. They may have a 

much more broad inspection or training program than is required 

under the 10-hour or even the 30-hour course because I know some 

of my clients did have that type of thing. 

So to say they are not getting the training, I can’t say that all 

the—that we are deficient necessarily in training. 

Mr. SARBANES. But if they weren’t getting the training, would 

that be a bad thing? 

Mr. FOULKE. Well, first of all, they are responsible for providing 

training. There is a mandatory requirement for training in the construction. So they would be in violation of the standard. But secondly, like I say, I believe personally that, you know, keeping employees safe is a moral responsibility for employers. 

Mr. SARBANES. So you think they should be getting the training, 

that every employee should be getting——

Mr. FOULKE. I think they have to. They are required to provide 

training. So that is the law. So they should be providing training. 

Mr. SARBANES. My impression is that there is a certain dimension of viewing this workforce as kind of a disposable workforce, 

which is the thing that I think is troubling a lot of people here. 

Before I run out of time, though, I just would want to ask Mr. 

Ayers, in your testimony you talk about this recommendation of actually creating a dedicated construction OSHA. I just wondered if 

you could talk a little bit more about why you see the need for that. 

Mr. FOULKE. Yes, sir. We think that it is very important to address all the injuries and fatalities that we are seeing now because 

it is similar to the Mine Safety and Health Administration. I meant 

the deaths of miners, it is a terrible thing, but in comparison to the 

death of construction workers, it is not even close. So what they 

have done for the miners has proven to be effective. They have regular inspections of mines. You know, quite frankly we have roughly 

800,000 construction projects, and under the current level of inspections going on, it would take 17 years to inspect all those 

projects. Now granted, they start and they stop and they move 

51

around. But a separate agency for construction is badly needed as 

much as a mandatory 10-hour OSHA certification. 

Mr. SARBANES. And before the time runs out, given that there is 

limited resources always, I guess, what are the kinds of things that 

would flag dangerous work sites where you could say, well, we better send somebody out there. I may be looking for counterintuitive 

things. Like we talked last week, we had a hearing on the poultry 

industry and, well, I guess they were talking about the steel in one 

instance, but where there are instances where the reported injury 

is zero or one for location where that is just not plausible. So you 

say, well, those are the places you ought to be sending some inspectors out because something is going on. Is there similar kinds of 

triggers or flags you can point to that would help allocate resources 

or not really? 

Mr. AYERS. Not really. What frustrates us the most is typically 

the larger ones are the ones subject to inspection and typically the 

larger jobs are the safest jobs. Now City Center is a exception, but 

you are looking at a $9 billion, largest commercial project in America. They have stacked workers, working around the clock. There 

are a lot of problems, why there are problems there. 

But again to answer your question, I think the focus should be 

not so much on the large projects but focus on a good sampling of 

all projects. 

Mr. SARBANES. Thank you. 

Chairman MILLER. Ms. Sanchez. 

Ms. SANCHEZ. Thank you. I want to begin my question with 

Brother Ayers. I am a fellow IBW member, so welcome to our 

panel, and I am keenly interested in some of the insight that you 

can lend as a witness on this panel. In your written testimony, you 

mentioned that OSHA’s statistics undercount accidents because so 

many construction site workers are misclassified as independent 

contractors. Can you explain why this is so important that they are 

missing from the statistics? 

Mr. AYERS. Yes. Independent contractors are an extremely big 

problem in the industry. And the statistics are much worse than 

what you have seen in my written testimony or probably the statistics you have seen from everyone here because an independent contractor is not required to report to OSHA. So if there is an injury, 

an illness, a fatality, it is not reported with OSHA. Therefore, BLS 

doesn’t capture it. So the statistics you are looking at——

Ms. SANCHEZ. You think they are underreported? 

Mr. AYERS. No doubt about it. 

Ms. SANCHEZ. Grossly underreported? 

Mr. AYERS. Absolutely. 

Ms. SANCHEZ. In your opinion, do you believe union job sites are 

safer than nonunion sites and, if so, can you explain why that is? 

Mr. AYERS. You are going to make me show my bias obviously. 

Ms. SANCHEZ. Just the facts. Just the facts. 

Mr. AYERS. I believe personally that the union sites are safer 

sites, and I only say that from the aspect that we make a point to 

push and offer training. Our workers have a place to go to get 

training. It is not to say that every nonunion worker doesn’t have 

a place to go to get training, but more often than not they do. And 

52

you need to keep in mind that 80 percent of all construction employers are less than 10 employees so——

Ms. SANCHEZ. So the vast majority probably don’t have as easy 

a time accessing training? 

Mr. AYERS. Right. Again, that is why we think it is very important that an emergency 10-hour standard be adopted. 

Ms. SANCHEZ. Thank you. 

Mr. Foulke, you described OSHA, and I am quoting here, unprecedented levels of Hispanic outreach, yet a recent government report 

revealed an unprecedented level of Hispanic work-related fatalities 

especially in construction. The report found that in 2006 the fatality rate was 25 percent higher in Hispanics compared to all other 

workers and foreign born Hispanic workers had a 70 percent higher rate of work-related injury deaths compared to native born Hispanic workers. From 1992 to 2006, deaths from falls among Hispanic workers increased by approximately 370 percent. 

So what is it that you are doing wrong? Because you are talking 

about outreach, training and education, and some distribution of 

Spanish language materials. But you are not mentioning enforcement. And clearly there is something that is failing if you have statistics like this going up for Hispanic workers. 

Do you have any ideas of how you can improve cutting the fatality rate for Hispanic construction workers? 

Mr. FOULKE. Let me—first of all, I misspoke about an earlier 

question about the general industry. Lockout does not apply to construction. We do have a small construction lockout-tagout. 

Now to get to your question on Hispanic workers, it is clearly a 

concern of ours about the number of fatalities in the Hispanic community, and we have been working very diligently and doing a lot 

of outreach. And I understand what you are saying. But we also, 

you have to look at our enforcement. We have focused our enforcement. We don’t target and say we are looking for enforcement for 

Hispanics. The enforcement is across the board. 

Ms. SANCHEZ. I understand, but that then leads to the belief on 

my part, and I don’t think wholly unrational, that there isn’t 

enough enforcement going on across the board. 

Mr. FOULKE. Well, the overall fatalities numbers have reduced. 

Ms. SANCHEZ. But they are going up for Hispanic workers and 

that is sort of the largest growing segment of the workforce, if I am 

not mistaken. 

Mr. FOULKE. I think it is the largest expanding segment of the 

workforce. And we are focusing on trying to get to the Spanish 

speaking workers because clearly our efforts on—the outreach efforts are tied into our enforcement though, too, because we—last 

year, 67 percent of all Federal and State—74 percent of—excuse 

me, over 50 percent, 51 percent of our OSHA inspections were construction where a lot of the fatalities are occurring for Hispanic. So 

we are targeting that area. 

One of the areas——

Ms. SANCHEZ. My recommendation, because I have got a couple 

other very brief questions I would like to ask you, is that you really 

step it up in that area because it is clearly a glaring failure in 

terms of statistics. You are talking about, oh, injuries are down. 

Deaths are down. In this particular segment of the population, it 

53

is a very clear, very pressing, urgent problem, and I urge you to 

take double time in terms of trying to address that. 

Mr. FOULKE. Okay. 

Ms. SANCHEZ. If the chairman would indulge me, can I ask unanimous consent for 1 additional minute because I have two quick 

questions. Thank you, Mr. Hare. I appreciate that. 

Mr. Foulke, I want to talk a little bit about the statistics you list 

on page 2 of your testimony because you indicate that since 2001 

OSHA has issued 256 significant enforcement cases, and significant 

enforcement cases are those defined as those with penalties over 

$100,000 in the construction industry alone. 

Ms. SANCHEZ. In your testimony you write that these statistics, 

quote, show that OSHA enforcement is strong, end quote. So I am 

interested in knowing how much of the fines in those 256 cases 

have been collected, do you know. 

Mr. FOULKE. That I do not know the exact answer on, the exact 

number. 

Ms. SANCHEZ. I would appreciate if you could provide that later. 

Mr. FOULKE. I think our collection rate is actually fairly high. 

Ms. SANCHEZ. I would be interested in getting that information 

later. Do you know if any of the fines in those 256 were reduced 

for any reason? 

Mr. FOULKE. Those were the——

Ms. SANCHEZ. Again these are the significant enforcement cases. 

Mr. FOULKE. Since most of the cases are settled, a lot of times 

the penalties are reduced based on the settlement process, what is 

obtained as part of that settlement process. If we get additional—

if we get additional things from the employer that they are going 

to add safety people or they are going to do more training or whatever. 

Ms. SANCHEZ. So the short answer is it is likely that those fines 

were reduced? 

Mr. FOULKE. I think you can say that, yes. 

Ms. SANCHEZ. In how many construction industry fatality cases 

did OSHA levy a fine less than $100,000, meaning that there was 

a fatality but the case was not considered a, quote-unquote, significant enforcement case? 

Chairman MILLER. We are going to submit that for the record 

and you are going to submit the answer for the record because we 

have a vote on and I want to go to Mr. Hare and Ms. Berkley. 

Ms. SANCHEZ. Thank you. I thank the chairman. 

Chairman MILLER. Thank you. 

Mr. HARE. Mr. Secretary, let me just ask you a yes or no question. Does your agency have a big enough budget and enough inspectors to ensure the safety of American construction workers? 

Mr. FOULKE. Once again I think I have said in the past—today 

is—I think that what we are doing, the enforcement efforts, the 

compliance assistance, the training, the outreach, has demonstrated that we have an effective program because our injury, illness and fatality rates are going down. 

Mr. HARE. Well, that is interesting because we had a hearing 

last week and we talked about amputations. One of those was in 

terms of workplace safety and accidents happening. And in the 

State of Michigan in 1997 there were, I think, 700 or 800 amputaVerDate 0ct 09 2002 13:49 Nov 09, 2008 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-98\43026.TXT HBUD1 PsN: DICK
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tions and they were underreported by 64 percent. So when people 

are getting hurt on the job and there is underreporting to the tune 

of 64 percent of people who have lost a limb, which I think we 

would all have to agree here that is pretty significant, it is awful 

hard to say, I think, how much progress is being made when we 

are not even reporting and getting the accurate figures, number 

one, for people who have been hurt. The way it is now, as I understand it, if OSHA were to attempt to inspect every workplace in the 

United States just one time, it would take you folks 133 years to 

do that, which is 49 years longer than it would have taken in 1992. 

Mr. FOULKe gave rather—and I missed it, but I was reading his 

testimony—arguments that his brother-in-law would be alive today 

if OSHA had enforced its steel erection standard and had not 

weakened it in compliance directive by removing the requirement 

for decking 30 feet below the workers. I don’t understand how 

OSHA standards can provide protections. What happened here? 

Mr. FOULKE. I am sorry, I don’t understand your question. I 

apologize. 

Mr. HARE. Mr. Cole in his testimony said that he believed that 

his brother-in-law, if I am not mistaken, would be alive today if 

OSHA had enforced its steel erection standard. Do you believe that 

is the case? Would you agree with Mr. Cole. 

Mr. FOULKE. I am sorry about that incident. That particular incident occurred in Nevada OSHA, so I don’t have the details of that 

specific incident. Under the directive that we have as to the steel 

erection standard if an employee, if there is not decking or netting 

underneath the employee within two stories or 30 feet, whichever 

is less, then to qualify under the directive you have to have 100 

percent fall protection. In other words, they had to be tied off at 

all times. So I don’t know the requirement on that. 

Mr. HARE. Let me ask you, Mr. Cole. You discussed the steel 

erection standard in your testimony on page 1. And apparently the 

compliance record eliminated this. I am interested in your insights 

about this as an ironworker. 

Mr. COLE. Could you repeat the question one more time? 

Mr. HARE. Well, you discussed the steel erection standard in 

your testimony on page 1 and apparently the compliance directive 

eliminated the safety provisions. And so as an ironworker I am interested in your insights about this. 

Mr. COLE. Subpart (r) on the final standards rule said that every 

other floor or 30-foot, whichever is closest, would be decked. The 

directive—I think it was 23, 24 and 25—eliminated that, which 

made it okay for a contractor to say I don’t have to deck it, we can 

just make sure everybody is tied off. The problem with Rusty’s 

death and a lot of deaths that happen, the law is a run-around because somewhere in erection process there has to be a working 

floor. A working floor is a floor that is planked solid, doesn’t have 

a hole more than three inches and the ironworkers move from that 

floor to continue the building up. And it gives a place for all the 

other crafts to work underneath, that an accident can’t happen if 

something goes wrong. It can’t fall through that floor and hurt 

somebody that is underneath it. And Subpart (r) was fought for 10 

years, 12 years before it became a final rule. And it has been 

taught by Local 433 and the international in the State of Nevada 

55

where I am from. I taught it myself. And I was surprised and 

amazed that the Federal Government would come out with a directive that would take safety away as when they were the champions 

of putting safety in with the help of contractors and the unions to 

make a safe working spot for the man going to the job and his wife 

knows that he don’t have to worry about not coming home. 

Mr. HARE. So you put it in and the Feds took it out? 

Mr. COLE. They took it out. It was there. 

Mr. HARE. Thank you, Mr. Chairman. 

Chairman MILLER. Congresswoman Berkley. 

Ms. BERKLEY. Thank you, Chairman Miller, for inviting me to 

discuss this important issue. I want to particularly thank and acknowledge Mr. Cole for coming to share your story and your experiences. Needless to say, you have my deepest sympathy for the loss 

of your brother-in-law, Rusty Billingsley. 

My district of Las Vegas has seen unprecedented growth in a 

construction boom in recent years and there are currently 40,000 

new hotel rooms under construction in Las Vegas. While this construction is very important to the local economy, it is also very important more so to ensure the safety of the workers that are building our city for the future. Unfortunately, my hometown of Las 

Vegas has seen a high number of construction-related deaths, and 

we are here to make sure that everything is being done to protect 

our construction workers. 

Make no mistake that the construction workers on-site in Las 

Vegas are the highest quality building trades unionists in the country. They have the expertise, the quality of their work is unsurpassed, and they have experience on the job of many years and 

many construction sites. They are second to none. I am hopeful 

that the purpose of this hearing and through this hearing we will 

be able to shine a spotlight on this most important issue so that 

those who are on the job and at risk can have the safest possible 

work site conditions available. 

I have a couple of questions. And Mr. Cole, I want to be as sensitive as possible, but I would like to get short answers if you could 

possibly, just so we have this on the record for absolute sure. 

Do you believe the OSHA compliance directive on steel erection 

standards provides equivalent protection to ironworkers during the 

steel erection process? Is that a yes or a no? 

Mr. COLE. Subpart (r) does give protection in many ways. The directive does not. 

Ms. BERKLEY. The directive does not. Thank you. 

Do you believe, and I know this is a difficult question to answer, 

that your brother-in-law might be alive today if OSHA had enforced the current steel erection standard and not issued the compliance directive? 

Mr. COLE. Ms. Berkley, I know for a fact of ironworkers that is 

alive on a 30-foot fall. I don’t know one on a 60-foot fall. 

Ms. BERKLEY. How did you feel, you and your wife feel when you 

found out that OSHA had completely dropped the penalties for 

your brother-in-law’s death? 

Mr. COLE. We were devastated. 

Ms. BERKLEY. Mr. Foulke, I know that you visited Las Vegas a 

couple of weeks ago. According to Nevada OSHA, they have forVerDate 0ct 09 2002 13:49 Nov 09, 2008 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\FC\110-98\43026.TXT HBUD1 PsN: DICK
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mally denounced items contained in the Federal OSHA compliance 

directive, and after a thorough review Nevada OSHA officials concluded that certain OSHA compliance directives do not provide 

equivalent protection. 

Now, when you were in Las Vegas I was informed that you have 

refused to rescind certain Federal OSHA compliance directives but 

agreed that you would consider suspending them until further notice. Have you in fact done that? 

Mr. FOULKE. No, I am going to clarify that. What I said is that 

I would be—I received—first of all, I met with Nevada OSHA and 

talked to them about the current situation. Then I made it a point 

to meet with all of the——

Ms. BERKLEY. I know who you met with. 

Mr. FOULKe.—Employers and then I met with the unions. As 

part of that discussion additional information regarding the steel 

erection standard and the issue regarding fall protection, the 100 

percent fall protection issue, was brought to my attention. And I 

advised them that I would begin to review the situation and determine what, if anything, would be done. 

Ms. BERKLEY. And have you done that and what is your conclusion? 

Mr. FOULKE. We are still reviewing the information. 

Ms. BERKLEY. And how long is it going to take you to review 

this? I don’t want to turn on my television in Las Vegas and hear 

that another worker at one of these sites, construction sites has 

fallen to their death. So there is a bit of urgency here. So when do 

you plan to do this? 

Mr. FOULKE. I understand, Congresswoman, but you need to understand the directive requires 100 percent fall protection if there 

is no decking or netting, so that if they fall, their lanyards should 

stop them from falling. There should be no falls. The directive actually provides more protection to a certain degree. 

Ms. BERKLEY. According to Nevada OSHA and everybody else, 

that is an accurate statement. The reality is that if we had left the 

current steel erection standards in place and not issued the compliance directive Mr. Billingsley and others might be alive today. 

Mr. FOULKE. I don’t know the answer to that, but I also do not 

know the answer to the use of 100 percent fall protection when 

there is——

Ms. BERKLEY. So what are you going to do? 

Mr. FOULKE. There may have been employees that are alive 

today because of the 100 percent fall protection. But because we 

prevented them from being killed or injured we don’t know that. 

Ms. BERKLEY. What I would like to do, I am going to submit this 

question to you and I would appreciate if you responded. What 

more can you do, what more resources are needed to help prevent 

additional construction tragedies in Las Vegas. I would appreciate 

a comprehensive answer so that we can implement these things 

and save people’s lives. 

Thank you very much. 

Mr. FOULKE. Let me make one point that we have provided 

OSHA Federal inspectors to the Center City site that are assisting 

the Nevada OSHA inspectors, so we are already providing assistance at the site. 

57

Ms. BERKLEY. Thank you. 

Chairman MILLER. Thank you. Mr. Cole, I think you wanted to 

comment on that. I will stay here. I know you guys will run for a 

vote. But you wanted to comment on that question? 

Mr. COLE. I just want her because she is from our State, to make 

her aware that the fall protection and the tie-off are two certain 

things. And two ironworkers in Las Vegas were tied off and they 

are both dead. It was over 30 feet. 

Ms. BERKLEY. Thank you, Mr. Cole, for clearing that up. Thank 

you, Chairman Miller. 

Chairman MILLER. Thank you very much. 

Mr. LiMandri, you have the authority under your public health 

code, if I am correct, to shut a job down, is that correct? 

Mr. LIMANDRI. That is correct. 

Chairman MILLER. How often due to safety, health and safety 

has that been invoked in the city? 

Mr. LIMANDRI. It has actually increased. In 2002, we did approximately 2,000 stop work orders. Just last year we have done 

approximately 9,900 and it is on the rise. 

Chairman MILLER. 9,900? 

Mr. LIMANDRI. 9,900, yes. 

Chairman MILLER. I assume these are all across all the size jobs. 

Mr. LIMANDRI. Yes, you can use it on any size job. It does not 

matter what actual work is occurring. What we want to do is we 

want to halt the unsafe practice, require the contractor to come in, 

tell us, or the engineer of record, tell us what they are going to do 

differently and then we allow them to go back to work. 

Chairman MILLER. What triggers this, an inspection in the finding of a violation, the reporting of a violation and a confirmation 

of that violation by the city? 

Mr. LIMANDRI. The city does an inspection based on—it could be 

based on an accident or it could be based on an inspection. We 

write a violation, the stop order work violation. It requires them to 

remedy the situation. That might mean remedial work prior to 

going back to work or a listed practice of how they are going to 

move forward because each construction site is different and they 

have particular means and methods that might have to be addressed. 

Chairman MILLER. But not every violation, or let me ask you, 

does every violation order, I guess, or citation result in a stop 

work? 

Mr. LIMANDRI. We issue thousands of violations a year. Not 

every violation requires a stop-work, that is correct. 

Chairman MILLER. And how is this received in the employer community, the contractor community, how does this work? 

Mr. LIMANDRI. Well, I will tell you that the best way to get 

someone’s attention is to stop the work, getting them to identify before they go back to work a new plan. We get major compliance. 

We also——

Chairman MILLER. Get major complaints. 

Mr. LIMANDRI. I am sorry. We get additional compliance. They 

go above and beyond the code. We may say that whatever the practice is today we don’t agree with, we want you to do more. There 

58

might be management changes, there might be a protocol change, 

we might require them to change personnel, whatever that is. 

Chairman MILLER. What is New York’s situation with the steel 

erection standard that we have been discussing here today, whether or not you have to have flooring, netting and tie-off, or if you 

have 100 percent tie-off essentially you don’t need to do the others? 

What do you do in New York in high-rise construction? 

Mr. LIMANDRI. Right now today I cannot comment on that at this 

time, but certainly we would like to go back and talk to our local 

officials based on what they are doing locally with our director. And 

I would turn that back over to Ed Foulke, if I may. 

Chairman MILLER. Yeah, but wait a minute. Do you have a 

standard or don’t have a standard? 

Mr. LIMANDRI. The standard that they follow is the standard 

that is put out by Federal OSHA. 

Chairman MILLER. Okay. So you have not done something under 

your health and safety codes to change that? 

Mr. LIMANDRI. We don’t have——

Chairman MILLER. You are living with that directive? 

Mr. LIMANDRI. Yes. We basically live based on Federal OSHA. 

There is no standard at the State level for OSHA. We do not have 

a New York State OSHA plan. 

Chairman MILLER. Mr. Foulke, how many States have complied 

with that directive? I believe that Nevada just went the other way, 

is that correct, in the last few weeks where they now have flooring 

and/or netting and tie-off? 

Mr. FOULKE. That is correct. 

Chairman MILLER. And California——

Mr. FOULKE. California was one that did not. 

Chairman MILLER. Did not. So in California we still have the old 

standard, essentially flooring, netting or——

Mr. FOULKE. The standard is still in place across the country. It 

is not that the standard is not there. The directive finds that if you 

do 100 percent fall protection then it would be a de minimis site. 

Chairman MILLER. You mentioned maybe in my first round of 

questioning that that standard was very contentious and it is making the question of whether you are going to require flooring and 

netting plus tie-off and that went back and forth and the standard 

came out with tie-off and flooring and netting, correct? 

Mr. FOULKE. As I understand it, there are two exceptions that 

dealt with—decking was one of the exceptions, netting and decking, 

and then there was one for shear studs. But going back to just the 

netting and decking, that was, as I understand, in the proposed 

rule. Then there was a draft final rule that was circulated among 

the stakeholders which had 100 percent fall protection without the 

two exceptions. And then concern was raised about that, the two 

exceptions for decking and netting, and then the shear studs was 

put back in the final rule. And then——

Chairman MILLER. So the final rule said? 

Mr. FOULKE. Says, still does say. It has not been changed. 

Chairman MILLER. Still does say, I got you. 

Mr. FOULKE. The standard still says that if you are at 15 feet 

up to 30 feet, you do not have to have any fall protection as long 

as you have either a decking or netting in place. 

59

Chairman MILLER. Now, is it correct, it has been suggested that 

since the directive is put out there that fall fatalities have gone up? 

Mr. FOULKE. I don’t have that data, to tell you the truth. I can 

get back with you on it. 

Chairman MILLER. Can you do that? 

Mr. FOULKE. The problem is we don’t know how many people 

have not. 

Chairman MILLER. I understand that. That is true. Without the 

standard if people survive, they survive. That is not the test, how 

many people we don’t know about. The test is how many people we 

know that have been killed. 

Mr. FOULKE. You mean without the fall protection. 

Chairman MILLER. Right. 

Mr. FOULKE. Well, if they are using 100 percent fall protection 

there should be no fatality. 

Chairman MILLER. Again you may use 100 percent fall protection, you may tie off on something that turns out to be faulty. 

Mr. FOULKE. Which I think has happened. 

Chairman MILLER. I like the idea of 100 percent fall protection, 

except there aren’t that many things in life that are 100 percent. 

And tieing off, it doesn’t have to be your arrangement, it can be 

the safety line arrangement or whatever else you tie off to at that 

point. 

I want to go back to what I talked to you about earlier in light 

of the New York experience. We had this series of accidents take 

place in Las Vegas. We had citations, I guess, if I am using the 

right word, citation, violations were recognized and fines were imposed. And then a second round of meetings was held between Nevada OSHA and contractors and in some cases the fines were abolished, in some cases they were substantially reduced. Since the reports in the newspaper they have held for a moment here. 

Is that a practice under national OSHA where you don’t have 

State plans? 

Mr. FOULKE. On penalty reductions as a result of settlements? 

Chairman MILLER. Is that how it is handled, there will be a second meeting between the employer, the contractor and OSHA? 

Mr. FOULKE. Yes. Under our field inspection reference manual 

we have a—what they have is once the citation has been issued the 

employer has 15 days in which to contest the citation. During that 

time period there is a provision that allows for informal conference 

where the employer can come in and try to resolve the citation and 

enter into an informal settlement. 

Chairman MILLER. Does that include the union if it is a union 

site or the worker or the worker’s family? 

Mr. FOULKE. Not necessarily, no. 

Chairman MILLER. So how would they—what would their remedy 

be if the fine was abolished? What would the worker’s or the 

union’s rights be if that was done as a result of the informal? 

Mr. FOULKE. Under the act once there has been a contest the 

unions have the ability to contest the abatement date. And that 

is——

Chairman MILLER. Contest the——

Mr. FOULKE. Abatement date of the violation, how long the 

abatement date. That is the——

60

Chairman MILLER. To fix the violation? 

Mr. FOULKE. Correct. 

Chairman MILLER. They cannot contest the fine being reduced or 

eliminated? 

Mr. FOULKE. Not under the act. 

Chairman MILLER. How does that strike you? 

Mr. FOULKE. I just follow the law. 

Chairman MILLER. Well, you have been a ministry in the law 

now for a period of time here. I mean I don’t get how you can have 

an injured worker or a worker who has died, then you can have an 

informal process in which the worker or the worker’s family or the 

union, and even the other workers on the site are not included, 

that that passes a smell test in this country. 

Mr. FOULKE. Well, we do have a procedure to keep the—during 

the inspection process we do have a requirement for the surviving 

family members to be informed about how the inspection——

Chairman MILLER. But they have no rights in this hearing? No, 

I understand that. 

Mr. FOULKE. No. 

Chairman MILLER. But here you are making a determination in 

a—you know, again I don’t know the evidence is hard, but in Mr. 

Cole’s brother-in-law’s case there was a substantial fine imposed, 

there was some question about whether or not it was faulty equipment or whether he wasn’t tied off. Again I don’t know that. But 

then in an informal hearing the fine went away and that was it. 

I don’t understand how we can continue that process without having either the worker representative organization in the case of the 

union site and/or the family, somebody to be able to say wait a 

minute, you guys, you are making a secret handshake here without 

having to go to court. The company didn’t have to go to court to 

make the fine go away. But if I want to have the fine stay in place 

I guess I would have to go to court later. 

Mr. FOULKE. Right. Well, in my experience when I was in private 

practice involved in informal conferences a lot of times the unions 

were invited to those things, to the informal conference. But under 

the act they are limited as to what they are able to contest, and 

that is limited to the time of abatement, the date. 

Chairman MILLER. And that is how the law works? 

Mr. FOULKE. And OSHA does keep the families informed but 

they do not have——

Chairman MILLER. Mr. Kallmeyer, have you been involved in 

these kinds of conferences? I don’t know if you have had these 

kinds of violations or citations with Denier Electric. 

Mr. KALLMEYER. Yes, sir, I have. 

Chairman MILLER. What is your sense of how this works? 

Mr. KALLMEYER. I personally have been involved in one. And 

there was a citation issued for—it was listed as a bare copper conductor on a job site. It was an electrical violation. And the compliance officer was in error. It was a ground wire that was supposed 

to be bare. And we presented evidence at the hearing and the 

OSHA regional director brought in an electrical expert and agreed 

with our testimony and it was vacated basically. 

61

Chairman MILLER. I don’t know if that was a union work site, 

but anybody else raise questions about whether or not that should 

be done or not? 

Mr. KALLMEYER. The OSHA represented the complaint, the 

OSHA compliance, or the OSHA regional director represented the 

complaint and provided an electrical expert to—who I believe was 

an OSHA employee also provided testimony as to the facts there. 

Chairman MILLER. One of my concerns with this is that—I mean, 

we talk about fines with respect to worker safety and 24,000 citations for violations and fines levied and $33 million. And again, as 

I said earlier, I don’t know what that tells me. We will have that 

further discussion with the people at OSHA what that is really 

suggesting to us. And the discussion about the trend line coming 

down overall for accidents, and yet construction accidents is kind 

of uneven about that. And you have, as I said, four people a day 

dying on construction sites. 

But when I see the same process being followed—and again this 

is Nevada OSHA, I am sorry they are not here at the table at the 

moment. But you have a repeat offender, you have Perini, Perini, 

Perini, Perini, and these fines keep going away. I don’t get it. I 

mean I don’t know that any of you can comment on that. But there 

is something wrong in that process. I recognize they are a worldwide company, they are highly respected and all the rest of that, 

but something is terribly wrong in this process, especially if those 

fines are going away after essentially a one-sided discussion. I don’t 

say it is not on the level, but it doesn’t allow for an intervener on 

behalf of the victim of that incident and/or the family or the representatives, the union in the case of a union work site. That just 

doesn’t seem to make sense to me. And that is a matter of real concern. 

You look at fines. And in the case of Mr. Billingsley, was it, that died in the fall, Mr. Cole’s brother-in-law, it was a $13,000 fine. We 

are talking about, I don’t know, one part of this job was $3.6 billion 

and somebody said it was $9 billion overall. You do start to get the 

sense that just pay the fine and let us keep moving here, we are 

working 24-7. And that is a fairly disturbing aspect. 

I happened to be in Las Vegas for a speech a couple of weeks ago 

and I was—I still have images of it 25 years ago, but I was quite 

stunned at the size of this project that is going on. And that is a 

tough project, with all due respect, to put a stop work order on 

with that kind of—you know, it is one thing when interest rates 

were low, it is another thing when that kind of construction money 

is very dear now in this country. And I just worry that these fines 

really do not provide, especially when they are waived just consistently, and these fatalities, forget the other fines, that they are sufficient to ensure a safe workplace or to change a behavior. 

Mr. FOULKE. Well, Mr. Chairman, I would just say one thing to 

one of your points where we have companies that do come back and 

continue to have fines. We have our enhanced enforcement program where we have—where when we find employers that are not 

following or not meeting their obligations under the act, are not following the standards and we have—where we see a repeat type of 

situation, then we have this program which allows us to go not 

only to that site but also to all their sites and inspect them on that. 

62

And also it spells out the amount, the reductions and stuff like that 

is eliminated from the penalty. 

So we have a very forceful program to deal with those employers 

that don’t seem to be—that have continual problems, that don’t 

seem to get their responsibility under the act. 

Chairman MILLER. Do the State plans have that same provision? 

Does Nevada have an enhanced enforcement? Are they required to? 

The question is, are they required to? 

Mr. FOULKE. I don’t know if they have adopted that enhanced enforcement program. 

Chairman MILLER. Because their plan has to be equal to or 

greater than, right? 

Mr. FOULKE. But that is one of our enforcement programs. It is 

part of like our national emphasis program, it is like our local emphasis program. They can have their own State emphasis programs. 

Chairman MILLER. So whether a State has it or not, that is still 

a program that you carry out? 

Mr. FOULKE. That we have from a Federal standpoint, correct. 

Chairman MILLER. Well, I want to thank you all for your time. 

I think that, speaking as chair of this committee, I think that consideration has to be given to something beyond these fines. We 

have been around this before on fines in coal mining and elsewhere 

where they become, I hate to say this because it sounds so callous 

and it is not fair to a lot of responsible employers, but it becomes 

almost a cost of doing business, and that just can’t be acceptable 

here. I think that perhaps New York City has a regime that would 

lead—again we have to look at the numbers here, but would lead 

to better enforcement. It is not a minor step. But I just don’t think 

that certainly on some of these mega projects that the fines that 

we have historically watched, I am not sure that that leads to the 

kinds of corrective behavior, the kinds of modifications and improved safety that we would look for in the work site. And I mean 

this project in Nevada looks a little bit like a test case here in the 

sense that—the fatalities and injuries that have taken place and 

yet they continue and the number one tool in the arsenal, which 

is fines, continues to get waived. I think that raises very, very serious questions about that State enforcement and about what the 

Federal Government under the delegation of authority has the ability to do under the current law. 

Thank you all very much for your testimony. It has been very 

helpful to the committee. There will be—14 days will be available 

for any member of the committee who wants to submit additional 

material for the committee. Some of my colleagues had questions 

that they wanted to send in writing. We will forward those to you 

and we would appreciate it if we could have a response to those 

questions. 

Thank you, and with that, the committee stands adjourned. 

[Additional submissions from Mr. Miller follow:]

Prepared Statement of Christopher Lee, OSHA Deputy Regional 

Administrator, Retired 

I appreciate the opportunity to submit this statement to the Committee on Education and Labor on a critically important issue to working men and women in the 

63

construction trades in the United States—Ironworkers involved in constructing this 

nation’s commercial buildings. 

As a career OSHA safety and health professional, I devoted 28.5 years to the 

Agency and its mission. Since 1990, I served as the Deputy Regional Administrator 

in San Francisco until June 2008. Following is my personal statement as an occupational safety and health professional. 

As you know, the Occupational Safety and Health Administration convened a 

Steel Erection Negotiated Rulemaking Advisory Committee to gather input from 

various stakeholders regarding key safety concerns in the steel erection industry. 

After considerable deliberations and many, many meetings, a consensus was 

reached. 

After the promulgation of this standard, Subpart R—Steel Erection Standard—the 

Agency issued a Compliance Directive that in the minds of many concerned safety 

and health professionals removed safety provisions and created unsafe working conditions for Ironworkers. 

The standard as written (CFR 1926.754(b)(3), and supported by a myriad of stakeholders, requires a ‘‘* * * fully planked or decked floor or nets shall be maintained 

within two stories or 30 feet, whichever is less, directly under any erection work 

being performed.’’ The several persuasive arguments in support of this standard include: 

• Provides containment for falling objects such as tools, bolts, etc. 

• Limits fall distance to Ironworkers 

• Provides a platform for rescue 

• Has been industry practice and OSHA standard 

• The SENRAC supported this standard 

• The preamble to Subpart R supports the standard 

• OSHA reviewed and approved training manuals prior to publication 

Of critical note is the fact that several OSHA State Programs—such as the Cal 

OSHA program and now the Nevada state OSHA program do not enforce the Compliance Directive, rather the requirements of the standard itself. 

There are concerned parties who believe that OSHA’s issuance of Compliance Directives is ‘‘underground rulemaking’’ whereby Federal OSHA attempts to make policy without going through a formal rulemaking process. 

The entire construction industry including project owners, controlling contractors, 

subcontractors, and other parties rely on OSHA for consistent interpretation and enforcement of all safety standards. 

It is unfortunate that many affected parties in the construction industry consider 

these Compliance Directives to be a source of regulatory confusion, costly jobsite 

delays, and unnecessary litigation. 

OSHA Assistant Secretary Edwin Foulke has been quoted as saying ‘‘Even one 

injury or fatality on the job is one too many’’. 

I have attended many management meetings since Mr. Foulke assumed his responsibilities in approximately April 2006. He has repeatedly stated that OSHA has 

a noble mission—to ensure that the working men and women in America return 

home whole and healthy at the end of their working day. 

Mr. Foulke, in concert with is key advisors, and the career leadership of the Regions and the Directorates, spent two years identifying a mission statement for the 

Agency and to identify its three core values. The core values are respect, integrity, 

and commitment. 

In my opinion, Mr. Foulke, on behalf of the Agency, ought to respect the safety 

and health concerns of working men and women on construction worksites as noted 

above; should have the integrity to enforce the fall protection standard as it was 

promulgated and endorsed by numerous stakeholders; and, recommit to the basic 

ideals of the OSHA Act as it relates to construction workers in these environments. 

There seems to be a disconnect between Mr. Foulke’s statements and his actions. 

He can change this situation by executive direction—he need not convene any committees, nor submit notices to the Federal Register. He, as I understand the situation, can simply rescind or suspend the Compliance Directive. I urge, most respectfully, that at a minimum, he suspend the Directive. 

Mr. Foulke has a unique opportunity to ensure that Ironworkers involved in the 

construction of this country’s high-rise buildings, and other trade workers affected 

by work above, have a safer workplace from which they 

can return to their homes at the end of the day—whole and healthy. That is, and 

has been, his stated goal from the start of his tenure. 

I urge you, Mr. Chairman, and the members of the Committee, to strongly advocate to Mr. Foulke that he ‘‘do what’s right’’ and protect these workers. 

Thank you for your time and attention. 

64

Prepared Statement of Joe Standley, President, District Council of Iron 

Workers, California and Vicinity 

Good morning Chairman Miller and other distinguished members of the Subcommittee on Workforce Protections of the House Education and Labor Committee. 

I would like to submit the following statement for today’s hearing and request that 

it be included into the official record of this proceeding. This statement was provided on June 10, 2008 in Las Vegas, Nevada that summarizes our opposition to 

the Occupational Safety and Health Administration (OSHA) Compliance Directive 

for Steel Erection that has effectively removed safety provisions to Ironworkers and 

has contributed to recent fatalities in Las Vegas, Nevada. 

I am seeking your support today to question Mr. Foulke on OSHA’s current policy 

to not enforce safety standards for steel erection, and his policy of supporting Compliance Directives that are contrary to safety standards contained in the Subpart 

R—Steel Erection Standard. It is our hope that that you will instruct Mr. Foulke 

to enforce the current safety standards for steel erection, and take immediate action 

to rescind all Compliance Directives that are contrary to OSHA standards that remove safety provisions for Ironworkers. 

I am President of the District Council of Iron Workers of the State of California 

and Vicinity that includes California, Nevada, Arizona, and Hawaii. With me today 

are Doug Williams of Iron Workers local 433, Hart Keeble of Iron Workers local 416, 

Danny Thompson of Nevada AFL-CIO, Steve Ross of the Nevada State Building & 

Construction Trades Department, Jim Stanley, former Assistant Secretary of Labor 

for OSHA, Greg McClelland of the Labor Management Cooperative Trust, and Steve 

Rank of the Ironworker Management Progressive Action Cooperative Trust. Thank 

you for your time to be here today. 

As President of the District Council of Iron Workers, the safety and health of our 

members is my utmost concern. In view of recent accidents involving Ironworkers 

in Las Vegas, and recent developments regarding the Nevada State OSHA Plan and 

Federal OSHA, I felt that it was necessary to establish today’s press conference to 

clarify various issues. It is my hope that today’s press conference will illustrate our 

long struggle with Federal OSHA to enforce safety standards for steel erection. Additionally, I want to comment on OSHA’s policy of Compliance Directives that have 

removed vital safety provisions for Ironworkers. 

First, I would like to address safety and regulatory issues pertaining to Federal 

OSHA that have been at the center of controversy here in Las Vegas. I regret that 

recent accidents and widespread confusion regarding safety standards for steel erection have been linked to a Federal OSHA Compliance Directive for steel erection. 

The Compliance Directive issued by Federal OSHA has effectively removed several 

safety provisions contained in the OSHA Subpart R—Steel Erection Standard. We 

have prepared copies of several documents for your review that support our claim, 

that the Compliance Directives that are contrary to the OSHA Subpart R—Steel 

Erection Standard, and expose Ironworkers to significant dangers during the steel 

erection process. 

On several occasions, representatives from our International Association and contractor associations have met with Mr. Edwin Foulke, Assistant Secretary of 

Labor—OSHA, and his staff in good faith to resolve this issue. OSHA was strongly 

urged to rescind certain items contained in their Compliance Directive that removed 

safety provisions and created unsafe working conditions for Ironworkers. Despite repeated warnings to Mr. Foulke from labor and management representatives, including members of his own staff, Mr. Foulke has refused to rescind the Compliance Directive. 

As President of the District Council of Iron Workers, I have a responsibility to 

ensure that all Ironworkers are afforded safe working conditions set forth by OSHA 

regulations. I also have a responsibility to ensure that safety regulations are not 

compromised by OSHA Compliance Directives. I have been informed that Mr. 

Foulke will be in Las Vegas this week, and has requested to meet with general contractors and subcontractors regarding the recent fatalities in Las Vegas. We are outraged with news that Mr. Foulke would come to Las Vegas to pontificate about fatalities and workplace safety matters, when he has refused to rescind OSHA Compliance Directives that have been at the center of controversy in Las Vegas. However, we would welcome Mr. Foulke’s decision to rescind certain Federal OSHA 

Compliance Directives during his presentations in Las Vegas this week. Please join 

us in our efforts to confront Mr. Foulke regarding his refusal to enforce the OSHA 

standards for steel erection, and his continued policy to support Compliance Directives that remove safety provisions for Ironworkers. 

Secondly, I would like to address regulatory issues pertaining to the Nevada State 

OSHA Plan. On behalf of the three thousand Ironworkers working in Nevada, I am 

65

extremely pleased that Nevada OSHA has formally denounced items contained in 

the Federal OSHA Compliance Directive. Representatives from the District Council 

of Iron Workers recently met with Nevada OSHA officials, to provide documentation 

that supports our concern that OSHA’s Compliance Directive removes safety provisions to Ironworkers. Nevada now joins other State OSHA Plan’s who have refused 

to adopt these Compliance Directives. After thorough review, State Plan officials 

have concluded that certain OSHA Compliance Directives do not provide ‘‘equivalent 

protection’’ as mandated by State Plans. State Plan Officials often refer to OSHA 

Compliance Directives as ‘‘underground rulemaking’’ when Federal OSHA intends 

to ‘‘make policy’’ without going through a formal rulemaking process. This is a disservice to the stakeholders in the steel erection industry who rely on OSHA to provide consistent enforcement and interpretation of safety regulations. 

The District Council of Iron Workers, controlling contractors, contractor associations, and subcontractors have supported Nevada OSHA and their decision. We commend Nevada OSHA on their decision to uphold the OSHA regulations that protect 

our Ironworkers and denounce OSHA Compliance Directives that remove crucial 

safety provisions to our members. 

The working men and women that build America and those of us who represent 

them, look to the Occupational Safety and Health Administration to enforce the 

safety regulations for our protection. The entire construction industry including 

project owners, controlling contractors, subcontractors, and other parties rely on 

OSHA, for consistent interpretation and enforcement of safety standards. 

Our International Association and industry stakeholders have invested a considerable amount of time and resources to raise the standard for safety performance in 

the steel erection industry. We were shocked and disappointed that OSHA would 

issue Compliance Directives that removed safety provisions for the steel erection industry that is considered a ‘‘high hazard industry’’. Today, these Compliance Directives continue to be a source of regulatory confusion, costly jobsite delays, and unnecessary litigation. 

On behalf on 18,000 thousand Union Ironworkers in the California District Council of Iron Workers, please join us in our efforts to question Mr. Foulke on OSHA’s 

policy to not enforce safety standards for steel erection and the misuse of OSHA 

Compliance Directives. It is our hope that Mr. Foulke will enforce the current safety 

standards for steel erection, and take the appropriate action to rescind all Compliance Directives that are contrary to the OSHA Steel Erection Standard, that remove 

safety provisions for Ironworkers. 

Once again, thank you for your time to be here today and your attention to this 

matter. 

[Questions for the record submitted to Mr. Foulke and their responses follow:]

[VIA FACSIMILE] 

U.S. CONGRESS, 

Washington, DC, June 27, 2008. 

Hon. EDWIN G. FOULKE, JR., Assistant Secretary for OSHA, 

Occupational Safety and Health Administration, U.S. Department of Labor, Constitution Avenue, NW, Washington, DC. 

DEAR ASSISTANT SECRETARY FOULKE: Thank you for testifying at the Tuesday, 

June 24, 2008 Committee on Education and Labor Hearing on ‘‘Is OSHA Failing to 

Adequately Enforce Construction Safety Rules?’’

Committee Members had additional questions for which they would like written 

responses from you for the hearing record. 

Congresswoman Woolsey asks the following questions: 

1. Mr. Foulke, I was a human resource manager for 20 years and know from experience that issues of work organization are important to health and safety. By that 

I mean how many hours people work, excessive overtime and what kind of stress 

they’re under to get jobs completed quickly. We’re certainly seeing this in Las Vegas 

and in New York. 

Mr. Foulke, what is OSHA doing to address these work organization issues? 

2. Mr. Foulke, it sounds like your inspectors in New York are doing great work, 

given how short staffed they are. 

• Are they able to do anything aside from investigate accidents and respond to 

complaints? Anything actually preventative? 

• Have you considered bringing in reinforcements from other regions? 

Additionally, please answer the following questions: 

66

1. What was the timeframe for all other OSHA negotiated rulemakings, from the 

time that the negotiators agreed to a proposal, to Notice of Proposed Rulemaking 

to final issuance of the standard? 

2. Your testimony mentions 256 significant enforcement cases since 2001 in construction. Can you tell me how much of the fines in those 256 cases have been collected? 

3. Your testimony states that in 2007, there were 24,000 citations for fall protection hazards, and $33 million in penalties. Can you tell me: 

a. How many inspections for fall protection hazards were conducted in construction? 

b. How many separate construction sites were inspected? 

c. How many of these fall protection-related inspections were a result of: 

i. Fatalities 

ii. Events involving injuries 

iii. Complaints 

iv. Referrals 

v. General Schedule or targeted inspections 

d. What was the median penalty of fall protection citations? 

e. How many fall protection citations were there annually, from 2001-2007? What 

were the average and median penalties in each of those years? 

4. How many construction fatalities resulted in OSHA penalties that were less 

than $100,000? How many were more than $100,000? What were the average and 

median penalties for fatalities in the construction sector? 

5. What additional resources would be needed by Nevada OSHA to prevent additional construction tragedies in Las Vegas? 

6. How many week-long crane training classes are schedule at the OSHA Training 

Institute? What are the dates? 

a. Are the upcoming classes filled? 

b. How many attendees are 

i. federal compliance officers 

ii. state plan compliance officers 

iii. state consultation program employees 

7. About 80 percent of U.S. construction industry employers have 10 employees 

or fewer, and over 2 million workers in the U.S. construction industry are 

misclassified as self-employed or independent contractors. 

What is OSHA doing to reach small employers, including home builders, and what 

is OSHA doing to ensure that workers are not misclassified for safety and health 

purposes? 

Please send your written response to the Committee staff by COB on Tuesday, 

July 8, 2008—the date on which the hearing record will close. If you have any questions, please contact the Committee. Once again, we greatly appreciate your testimony at this hearing. 

Sincerely, 

GEORGE MILLER, 

Chairman, Committee on Education and Labor. 

OSHA’s Responses to Questions for the Record 

Congresswoman Woolsey Question 1: Mr. Foulke, I was a human resource 

manager for 20 years and know from experience that issues of work organization 

are important to health and safety. By that I mean how many hours people work, 

excessive overtime and what kind of stress they’re under to get jobs completed 

quickly. We’re certainly seeing this in Las Vegas and in New York. Mr. Foulke, 

what is OSHA doing to address these work organization issues?

OSHA Response: OSHA appreciates your recognition of these issues, many of 

which go beyond the authority of the Occupational Safety and Health (OSH) Act. 

For example, the Department of Labor’s Wage and Hour Division administers the 

federal overtime provisions of the Fair Labor Standards Act. OSHA inspectors do 

report possible violations to them. 

What OSHA will continue to do is to use all of its tools—vigorous enforcement, 

compliance assistance, cooperative programs and education—to ensure that employers take all necessary actions to protect employee safety and health and to impress 

upon them that compromising on safety and health is not an option. 

OSHA uses every opportunity to encourage employers to adopt good safety and 

health management systems in their workplaces. Such systems, which can go beyond regulatory mandates to address the important human factors you mention, 

67

have proven time and again to be a powerful force in reducing workplace injuries 

and illnesses. 

OSHA has taken action to address specific problems in Las Vegas and New York 

City. We are assisting Nevada-OSHA with construction inspections in Las Vegas. 

Also, we have deployed a special Task Force in our Manhattan Area Office, which 

has 12 additional compliance officers and an expert on cranes drawn from other 

OSHA offices, to increase construction inspections in New York City.

Congresswoman Woolsey Question 2: Mr. Foulke, it sounds like your inspectors in New York are doing great work, given how short staffed they are. 

a. Are they able to do anything aside from investigate accidents and respond to 

complaints? Anything actually preventative? 

b. Have you considered bringing in reinforcements from other regions?

OSHA Response: 

a. OSHA’s compliance officers in New York City, as elsewhere, are actively involved not only in responding to complaints, fatalities, and accidents, but in conducting a large number of ‘‘programmed’’ or targeted inspections in high-hazard 

workplaces, which constitute about 46 percent of all inspections in New York City. 

These include OSHA’s nationwide programs such as the Site-Specific Targeting program and the National 

Emphasis Programs for silica, lead, amputations, trenching, and others. They also 

include 10 Local Emphasis Programs in the New York Area, 4 of which specifically 

address construction hazards, including falls, electrical, trenching, and struck-by/

caught-between hazards. 

OSHA is using every available resource and tool—enforcement, outreach, education and training—to better identify and proactively eliminate hazards, and to 

convince employers to do likewise. To raise awareness of occupational hazards on 

city job sites, OSHA has been sending copies of violation citations issued to employers on city construction sites to the employers’ insurance or workers’ compensation 

carriers, as well as to construction project owners and developers. Citations involving training violations at union-represented sites will be sent to the unions representing the employees and to their training funds. 

OSHA also maintains 25 Regional and Area Office Alliances and 19 Strategic 

Partnerships with employers, trade associations, unions and other organizations in 

New York, to work cooperatively to prevent workplace accidents. The agency is planning to hold outreach meetings with unions and the construction industry to garner 

their feedback on construction safety issues and to elicit their support in reporting 

hazards and encouraging compliance with safety standards. 

OSHA will continue its ongoing Alliance with the New York City Department of 

Buildings, under which the two agencies cross-train inspectors and managers on 

each agency’s construction safety standards, regulations, and procedures, with a 

focus on the most common construction hazards likely to harm employees. OSHA’s 

Manhattan office has been participating in a joint task force with the Department 

of Buildings to address scaffolds and their related fall hazards and has conducted 

both concurrent inspections and inspections based on referrals from the Department. Already this year, OSHA staff has conducted dozens of training sessions for 

construction industry groups, unions, and even NYC staff on the various construction standards, with particular emphasis on falls, scaffold, crane, electrical and 

struck by/caught between hazards. 

b. When an OSHA region requires additional resources or assistance to address 

issues such as the recent crane accidents, or a natural disaster, OSHA identifies assets within the agency that are available to provide immediate internal assistance. 

In addition, OSHA has several safety and health experts that comprise the agency’s 

Health Response Team and Safety Response Team, as well as several rapid response teams that respond to biological exposures, structural collapses, and radiation releases anywhere in the nation. 

To address the recent crane and construction fatalities in New York City, OSHA 

sent 12 additional compliance officers to New York City to augment and provide 

support to the compliance officers already stationed in the five New York City boroughs. The agency also provided an expert on cranes from OSHA’s Billings, Montana Area Office to assist the New York regional staff. The additional compliance 

officers are focusing their inspection activities on high-rise construction sites, 

cranes, and other types of places where fatalities and serious accidents have occurred over the past six months.

Committee Question 1: What was the timeframe for all other OSHA negotiated 

rulemakings, from the time that the negotiators agreed to a proposal, to Notice of 

Proposed Rulemaking to final issuance of the standard?

68

OSHA Response: OSHA has used negotiated rulemaking for its rulemakings for 

‘‘Fire Protection in Shipyards,’’ for ‘‘Methylenedianline (MDA)’’ and for Steel Erection. 

In the Fire Protection in Shipyards rulemaking, the negotiated rulemaking committee finished its work and agreed on a draft proposed rule in February, 2002. The 

Notice of Proposed Rulemaking (NPRM) was published on December 11, 2002 (67 

FR 76213). The final rule was published on September 15, 2004 (69 FR 55667). 

In the MDA rulemaking, the negotiated rulemaking committee agreed on a draft 

proposed rule in May, 1987 (see 57 FR 35633). OSHA issued an NPRM on May 12, 

1989 (see 54 FR 20672). The final rule was issued August 10, 1992 (see 57 FR 

35630). 

In the Steel Erection rulemaking, the negotiated rulemaking committee completed 

the draft regulatory text for the proposed rule in December, 1995 (see 66 FR 5197). 

On August 13, 1998, OSHA issued an NPRM (see 63 FR 43452; 66 FR 5198). The 

final rule was issued January 18, 2001 (see 66 FR 5195). 

Note that the Crane and Derricks proposed rule regulatory text, with its accompanying preamble, is considerably longer than those for the Fire Protection in Shipyards, MDA, and Steel Erection rule makings.

Committee Question 2: Your testimony mentions 256 significant enforcement 

cases since 2001 in construction. Can you tell me how much of the fines in those 

256 cases have been collected?

OSHA Response:

SIGNIFICANT CONSTRUCTION CLOSED CASES ONLY 

Fiscal year Penalties remitted 

2001 $2,547,376

2002 $1,159,711

2003 $1,006,041

2004 $1,070,049

2005 $908,786

2006 $611,572

2007 $208,112

Total $7,511,647

SIGNIFICANT CONSTRUCTION OPEN CASES ONLY1

Fiscal year Penalties remitted 

2001 $15,783

2002 $0

2003 $84,542

2004 $165,186

2005 $340,433

2006 $687,192

2007 $331,747

Total $1,624,883

1 There are a number of reasons that cases appear as ‘‘open’’ in OSHA’s database, even though penalties have been remitted. In some 

cases, employers may have contested some, but not all, of the items for which penalties were proposed in a particular case. In others, OSHA 

may have agreed to a payment plan, under which the employer has some period of time to pay the entire penalty. In still other cases, the 

employer may have paid the penalty but OSHA has not yet confirmed that the cited violations have been abated. 

Committee Question 3: Your testimony states that in 2007, there were 24,000 

citations for fall protection hazards, and $33 million in penalties. Can you tell me: 

a. How many inspections for fall protection hazards were conducted in construction? 

b. How many separate construction sites were inspected? 

c. How many of these fall protection-related inspections were a result of: 

i. Fatalities 

ii. Events involving injuries 

iii. Complaints 

iv. Referrals 

v. General Schedule or targeted inspections 

d. What was the median penalty of fall protection citations? 

e. How many fall protection citations were there annually, from 2001-2007? What 

were the average and median penalties in each of those years?

69

OSHA Response 

a. There were 6,476 Federal construction inspections that resulted in fall protection violation citations. 

b. 6,237

c.i 119

c.ii 43

(Employers are required to report work-related fatalities to OSHA. Employers are 

also required to report to OSHA multiple inpatient hospitalizations (hospitalization 

of three or more employees) resulting from a work-related incident.) OSHA data 

show 43 injury related inspections in 2007. 

c.iii 459

c.iv 1,120

c.v. 4,400

3.d see 3.e below 

3.e The data below reflect that penalties assessed to small businesses are generally reduced as a result of a statutorily-mandated small business penalty reduction program.

FEDERAL FALL PROTECTION DATA 

Fiscal year Citations Median $ Mean $

2001 4,691 1,500 2,370

2002 5,471 1,500 2,052

2003 6,103 1,500 2,107

2004 6,056 1,500 2,072

2005 6,565 1,500 1,981

2006 6,951 1,500 1,867

2007 7,080 1,500 1,901

(Note that the median initial penalty in each year from 2001 through 2007 was $1500. This results from the fact that the most commonly 

assessed initial penalty for fall citations is $1500, combined with the fact that the lowest possible penalty ($0) and highest possible penalty 

($70,000) are always the same. Consequently, even though the total number of fall citations was different in each of these years, the median 

penalty remained constant). 

Committee Question 4: How many construction fatalities resulted in OSHA 

penalties that were less than $100,000? How many were more than $100,000? What 

were the average and median penalties for fatalities in the construction sector?

OSHA Response:

FEDERAL CONSTRUCTION FATALITY CASES 

Fiscal year No. of fatalities in cases under $100k 

No. of fatalities in cases over $100k Mean case penalty Median case penalty 

2001 357 11 10,849 4,000

2002 383 5 8,396 3,500

2003 355 3 8,557 4,200

2004 409 11 9,790 4,000

2005 389 12 10,521 4,500

2006 364 12 15,315 5,000

2007 372 4 9,086 4,900

Committee Question 5: What additional resources would be needed by Nevada 

OSHA to prevent additional construction tragedies in Las Vegas?

OSHA Response: Both Federal OSHA and Nevada OSHA, operating under the authority of its OSHA-approved State Plan, are greatly concerned about the recent 

construction fatalities in Las Vegas. In FY 2008, OSHA is providing $1,112,600 in 

grant funds to the Nevada OSHA program. Nevada matches this funding and contributes an additional $3,655,497 in unmatched funds. These funds support 27 safety and 11 health compliance officers. 

No regulatory agency by itself can ensure that additional accidents will not occur. 

It is the responsibility of employers to comply with safety and health standards and 

to ensure that their workplaces are free of recognized hazards. In addition, Nevada 

requires employers with more than 10 employees to have a written job safety program to guide their compliance efforts. It is incumbent on both Nevada and Federal 

OSHA, through enforcement and compliance assistance, to see that employers meet 

their responsibilities. 

70

In response to the fatalities which occurred at the CityCenter project, Nevada 

OSHA has undertaken a comprehensive inspection of that project. At the request 

of the state, Federal OSHA is providing an additional 4 compliance officers because 

the CityCenter project is unique in that it is the largest private-sector construction 

project in the United States. The 4 additional compliance officers are providing technical assistance to the state in completing the full-site inspection as expeditiously 

as possible. Federal OSHA will continue to work with Nevada OSHA and other 

stakeholders to enhance construction safety in Las Vegas and provide whatever further assistance may be appropriate.

Committee Question 6: How many week-long crane training classes are scheduled at the OSHA Training Institute? What are the dates? 

a. Are the upcoming classes filled? 

b. How many attendees are 

i Federal compliance officers 

ii. state plan compliance officers 

iii. state consultation program employees

OSHA Response: The OSHA Training Institute has two more sessions of its 

Cranes and Rigging for Construction class scheduled for the remainder of FY 2008. 

The dates are August 19-22 and September 9-12. The August class is filled; the September class still has seats available.

August Sept. Total 

Federal Compliance Officers ........................................................................................................... 28 0 28

State Plan Compliance Officers ..................................................................................................... 2 26 28

State Consultation Program Employees ......................................................................................... 7 8 15

Other ............................................................................................................................................... 0 0 0

Totals ................................................................................................................................. 37 34 1 71

1 As of August 11, 2008

Committee Question 7: About 80 percent of U.S. construction industry employers have 10 employees or fewer, and over 2 million workers in the U.S. construction 

industry are misclassified as self-employed or independent contractors. 

What is OSHA doing to reach small employers, including homebuilders, and what 

is OSHA doing to ensure that workers are not misclassified for safety and health 

purposes.

OSHA Response: OSHA recognizes the need to reach small construction employers, including home builders, and has employed a good mix of outreach, education, 

enforcement and cooperative programs to deliver a multi-faceted approach to small 

business assistance. 

OSHA offers a number of resources, programs and services to small businesses. 

OSHA provides web-based small business tools, including OSHA’s Compliance Assistance Quick Start, which is a tool to introduce employers and employees, especially those at new or small businesses to the compliance assistance resources on 

OSHA’s website. Quick Start currently includes several modules, including one for 

construction. 

Other online small business tools include the OSHA Small Business Handbook 

and Safety Pays, which help employers estimate the costs of occupational injuries 

and illnesses and the impact on a company’s profitability. OSHA augments the previously mentioned outreach with its Spanish-language compliance assistance resources such as safety cards, booklets, and posters, all available on OSHA’s Web 

site. 

OSHA’s On-Site Consultation Service offers free and confidential advice to small 

and medium-sized businesses in all states across the country, with priority given to 

high-hazard worksites. Employers that participate in the On-Site Consultation Program may seek recognition under the Safety and Health Achievement Recognition 

Program (SHARP) for their exemplary safety and health programs. SHARP provides 

incentives and support for small businesses to develop, implement, and continuously 

improve safety and health programs. OSHA offers a number of other Cooperative 

Programs for small businesses to work with the Agency, including the Alliance Program, Strategic Partnership Program, and the Voluntary Protection Programs. 

Finally, OSHA makes training available to small businesses through 26 Education 

Centers around the country. Through the Education Centers, several constructionrelated courses are available. OSHA also provides training through its Outreach 

Training Program. 

71

As demonstrated by the numerous outreach initiatives already mentioned, OSHA 

has a multi-faceted approach for small business outreach that incorporates specific 

construction-related outreach. 

Regarding the employee misclassification issue; OSHA compliance officers sometimes encounter individuals during a construction inspection who claim to be selfemployed or an independent contractor, or encounter a company that claims that 

a worker is not its employee but rather an independent contractor. In accordance 

with the OSHA Field Inspection Reference Manual Chapter III C. 1. b. (1) Definition 

of employee, in such instances, it is OSHA policy to gather information to determine, based on a common law test of employee status, if the individual is in fact 

an employee. An entity that is not an employer is not subject to citations or other 

enforcement actions under the OSH Act, and individuals who are bona fide independent contractors are not employees as defined in the Act. 

[The statement of Mr. Altmire follows:]

Prepared Statement of Hon. Jason Altmire, a Representative in Congress 

From the State of Pennsylvania 

Thank you, Chairman Miller, for holding this important hearing on OSHA’s enforcement of construction safety rules. 

Construction is one of the most dangerous industries in the U.S. In 2006, over 

1,200 construction workers were killed on the job, and while construction workers 

only comprise 8 percent of the total workforce, 22 percent of all work-related deaths 

are from construction work. Despite these alarming numbers, OSHA has not updated its crane and derrick safety standards in over 30 years. Four years ago, labor 

and employer groups came to an agreement on new draft standards to improve 

crane safety that better reflects new technologies. Despite agreement from the parties involved, OSHA has yet to turn the draft into an official proposal. 

I look forward to today’s testimonies as well as hearing about what OSHA has 

done and what they plan to do in the future to address these work-related deaths. 

I believe that we can work together to develop adequate safety standards for our 

nation’s construction workers. 

Thank you again, Mr. Chairman, for holding this hearing. I yield back that balance of my time. 

[The statement of Mr. Porter follows:]

Prepared Statement of Hon. Jon C. Porter, a Representative in Congress 

From the State of Nevada 

Thank you Chairman Miller and Ranking Member McKeon for holding this very 

important hearing today on construction safety rule enforcement. I also wish to take 

this opportunity to extend my condolences to George Cole, brother-in-law of Harold 

Billingsley who lost his life the City Center site in Las Vegas, Nevada. I wish him 

and his family all the best and extend my deepest sympathies. I also wish to express 

my condolences to all others who have lost their lives in similar tragedies. 

Mr. Chairman, this is obviously an issue of great concern to all members of the 

Committee and the full House. It is of greater concern to those of us from Southern 

Nevada. Construction and development play a crucial role in the life and economy 

of my community in Southern Nevada. Construction of residences, office buildings, 

and resorts in Southern Nevada provide one of our most important sources of jobs 

and a major economic driver for my constituents. The construction of MGM Mirage’s 

City Center resort site is one of the largest in our history and will represent the 

largest and most technologically advanced development on the Las Vegas Boulevard. 

This project has run into some challenges since construction began 17 months ago. 

Along with the six deaths that have occurred to date, the recent malfunction of an 

unstable 180-foot crane, caused the Las Vegas strip to be shut down for an hour. 

A majority of the union worker’s went on strike halting progress on the site. 

I have taken the initiative of speaking directly with Assistant Secretary of Labor 

for Occupational Safety and Health, Edwin Foulke, as well as having my staff speak 

with Steve Ross, the Secretary Treasurer of the Southern Nevada Building Trades 

and Tom Czehowski the director of Nevada’s OSHA. While there may be disagreement over how best to improve enforcement of standards and regulation of businesses, I believe there is consensus over the importance of safety training provided 

to workers and supervisors. For this reason, I have taken the action of asking the 

72

Appropriations Committee to provide an increase in funding for our states to use 

for training of workers and supervisors. 

I remain dedicated to finding reasonable solutions to provide for the safety of our 

workers. These safety concerns must be addressed by both federal and state officials, as well as the contractors and workers carrying out construction. I look forward to hearing from our witnesses today to see how our federal government can 

better work with state, local and union officials in providing the safest possible 

working environment. 

Again, I thank Chairman Miller and Ranking Member McKeon for holding this 

hearing and look forward to a productive discussion of how our government can help 

protect our workers. 

[Whereupon, at 12:43 p.m., the committee was adjourned.]

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