4. Eula Bingham Administration, 1977-1981: Of minnows, whales and "common sense"
In contrast with the frequent changes in leadership of OSHA in its first six years, in which three assistant secretaries served, during the four year administration of President Jimmy Carter only one person — Eula Bingham — served as head of the agency. Unlike her predecessors, Bingham had time to follow through on policies that she introduced and actions that she began. For the next four years OSHA could follow a less episodic, more continuous course.
Shortly after Carter's inauguration in January 1977, he visited the Labor Department's cavernous headquarters. He told a crowd of employees that OSHA's program had the best prospect of improving workers' lives of any recent social legislation and he called for strong enforcement of the Act. He also stressed the importance of reducing excess federal rules and red tape and said that OSHA should be run with a minimum number of regulations and with a maximum amount of "common sense."57 Carter drew applause when he announced to the crowd that he intended to appoint a woman to head OSHA.
Soon after that he announced the nomination of Eula Bingham, an occupational health scientist at the University of Cincinnati. After earning a doctorate in zoology at the University, Bingham did research there in the department of environmental health with a group studying the causes of cancer. She was inspired by seminars given by the head of the department who, she recalled, used to "charge us up" about workers' health problems. Bingham became an authority on occupational disease and on cancer causing substances and she served on numerous national advisory committees. She acquired experience in dealing with OSHA when she served on the committees that developed the coke oven emissions standard and the generic carcinogens proposal.58
While Bingham had never worked directly for organized labor, her vigorous efforts to protect workers' health made her a natural ally. Through professional organizations and activities she had gotten to know several high ranking officials of the UAW, which had given key support to Carter's campaign. She was also high on the AFL-CIO's list and was recommended by the National Organization of Women.59
Around New Year's of 1977 the Carter transition team contacted Bingham and asked if she was interested in heading OSHA. She somewhat reluctantly agreed to meet with Ray Marshall, Carter's choice for Secretary of Labor. Bingham went to the meeting fully intending to refuse the job, but found instead that she and Marshall had a real "meeting of the minds" and came away seriously interested. Bingham then acquired the unusual distinction for a sub-Cabinet appointee of being personally interviewed by the President. During the election campaign Carter had heard OSHA issues raised repeatedly around the country and he had decided he would interview the person who would head that agency. A few days after Bingham's interview with Marshall, the two of them were summoned to the White House. Carter told Bingham at that meeting that he was sure that she would do a good job as head of OSHA. She felt that she would have strong backing from Carter and accepted a few days later.60
Even before Bingham assumed her duties as head of OSHA, the elements of the policy that would define her tenure there began to fall into place. While Bingham had her own approach to workers' safety and health, she was well aware of past OSHA issues and of Morton Corn's efforts at the agency. In fact, in some ways Corn set the agenda for the new leadership at OSHA and Bingham followed along many of the lines that he projected.
This hold over agenda took concrete form in a briefing paper Corn's deputy, Bert Concklin, prepared in February for the new leadership before his own departure. In it he outlined Corn's goals and accomplishments and discussed the main problems that would face the new head of OSHA. The major goals that Concklin stressed were: to eliminate serious health hazards; and to make more effective use of OSHA's resources. Among the measures of Corn's that the paper cited were revision of consensus standards, concentration of inspections in the most hazardous industries, more citations for serious violations, and the recent reorganization of OSHA that resulted in the creation of special divisions for safety standards, for health standards, and for technical support. The proportion of inspectors specializing in health as opposed to safety had jumped sharply in 1976 but they were still in a distinct majority. OSHA had started revising about a fourth of the consensus safety standards and Concklin's memo called for additional revisions. To aid voluntary efforts by industry to comply, OSHA had produced training and educational materials for courses given by the National Safety Council and others, and Corn had planned to beef up training efforts. Corn was well aware of the special dangers women of child bearing age faced in the workplace and of the potential conflict between health protections and equal rights on the job for women and was looking into formation of a special task force on woman workers. One of the key problems Corn had faced was OSHA's reputation as either a bumbling ogre or a fumbling nitpicker. Concklin argued that was partly because it had been inept in communicating and explaining its programs and policies. A fundamental message of Concklin's briefing was that because OSHA had been through years of unstable leadership, "trauma and demoralization" were rampant.61
On March 11, 1977, the day that Bingham was nominated to head the agency, Secretary Marshall held a press conference at which he stated his position on OSHA and its problems. Marshall incorporated virtually all the views in the Concklin briefing memorandum and went on to blame OSHA's problems on the Nixon and Ford Administrations. Marshall stressed that, outside of reducing unemployment, his most important responsibility was to guarantee to the American worker an environment that is safe and healthful while assuring businessmen of even handed treatment by government. Marshall said he would consult closely with all concerned groups in setting OSHA's new policy. He also said that in order to experience OSHA's operations first hand, he planned to spend a day as an inspector (which he did two weeks later).62
Bingham and Marshall soon had developed a good idea of the themes that would be the basis of their OSHA policy. One of the initial concerns that Bingham had expressed was that "OSHA was about some silly things" and was widely perceived as being preoccupied with "frivolous, irrelevant rules and regulations." President Carter and Ray Marshall shared this concern, and all three knew that OSHA was in deep trouble with Congress, with the small business community, and with organized labor. Carter had spoken about the need for "common sense" about OSHA. In an early conversation, Marshall told Bingham how former Texas Senator Ralph Yarborough had said that one of the things wrong with OSHA was that it should be about "whales" — the serious health problems — instead of "minnows".63
These ideas formed the basis of a bold public relations stroke engineered by Bingham's public affairs officer Frank Greer which tied together OSHA's new programs and policies under the rubric of "common sense." At a press conference on May 19, 1977, Marshall and Bingham announced with great fanfare that OSHA was being redirected to follow new "Common Sense Priorities" and that from now on it would focus its energies on the really serious problems of the workplace. There were three main parts to the program: to "get serious about serious dangers"; to help the small businesses comply with OSHA rules; and to clarify and simplify safety rules. Marshall noted at the press conference that now OSHA was "indeed going after whales instead of the minnows." To further publicize the new program, that same day the Department released a lavishly illustrated 50 page booklet titled "The Shift to Common Sense Priorities," with an introduction by President Carter.64
Under the first priority, Bingham said, OSHA was launching "an all out effort to combat occupational illnesses and disease." During 1977 the agency would redirect its resources so that 95 percent of its inspections would be in the industry groups with the most serious health and safety problems. It would sharply accelerate the glacially slow process of adopting new health standards. OSHA also would augment the size and expertise of its health inspection staff so that it could increase the number and quality of its health inspections.
OSHA's second "Common Sense" goal, Bingham said, was "to make life safer for employees, not to make life harder for employers." She announced a number of steps to help the small employers. She noted that, since small businesses were concentrated in the less risky industries such as wholesale and retail trade and service industries, they would be much less likely to be inspected, because the new system targeted inspections to the most hazardous industries, such as manufacturing, mining and transportation, where large firms predominate. When small businesses are inspected, Bingham promised, the inspectors would try to be as helpful as possible. She promised also that she would hire a special assistant who would oversee OSHA's small business program. In addition, she pledged that OSHA would increase its support for consultations and for programs to educate employers and workers alike. "The keystone of a successful...program," Bingham said, "is knowledgeable workers and employers who can find and solve their own health and safety problems."
Under its third priority — simplifying safety rules — OSHA had already begun combing through over a thousand consensus standards to revise unclear ones and eliminate unnecessary or irrelevant ones. As we have seen, this was a revival of a long standing effort at OSHA. To provide immediate relief, Bingham ordered inspectors to ignore violations of regulations unrelated to safety or health.
As a public relations gesture, the "Priorities" announcement was immediately successful. Labor unions backed the plan strongly, although they had some misgivings about eliminating safety rules that they favored. The United Steelworkers spokesman John Sheehan said OSHA was now "out of the woods." More critical to OSHA's success was the generally positive response that the Chamber of Commerce reported to the business community. Small businessmen strongly supported OSHA's plans to have inspectors be more courteous and helpful and to simplify standards. Mike McKevitt, representing the National Federation of Independent Businesses, said Eula Bingham was "off to a good start." The new approach won needed breathing space in Congress. Moves to cut OSHA's budget were defeated and attempts to limit its powers lost support. The President praised OSHA and told Secretary Marshall that few things the Carter Administration had done had been as well received as the "Common Sense Priorities." The Washington Post praised Marshall and Bingham for giving OSHA "more focus and force" but warned prophetically that, if carried out with determination, their plan would take the agency "farther into areas full of scientific uncertainty and political strain."65
The actual policies and programs that Eula Bingham instituted in her four years at OSHA were more militantly pro worker than the "Priorities" announcement seemed to portend. OSHA did follow through on the two priorities that were designed to please business, but it devoted the bulk of its energies to the first priority — getting serious about the major workplace hazards. This meant that inspectors began to look harder for serious safety or health hazards and levied much stiffer fines for violations. Bingham vividly expressed her feelings on enforcement in 1978 after standing outside a grain elevator that had exploded and talking with a worker waiting to see if his son would come out alive. During an interview later she said this kind of incident made her want to go "full speed ahead" and she punctuated her remark with a fist thrown into the air. The 1978 "Barlow" decision of the Supreme Court, which stipulated that employers could require search warrants from OSHA inspectors, threatened to inhibit this "get tough" policy, but in reality it had little effect. Nowhere did Bingham pursue "whales" with more fervor than in her efforts to set stringent standards for carcinogens and other health hazards. In her first two years OSHA set new standards for cotton dust, lead, benzene and three other industrial chemicals. In addition, Bingham formally proposed a revised version of the generic cancer policy developed by Morton Corn and stated that she was "not known for being hesitant about deciding whether or not a substance is cancer causing."66
Repeatedly during Bingham's tenure, OSHA came into conflict with the Carter Administration and with Capitol Hill over regulatory philosophy and methods. Conflicts with the White House in 1977 and 1978 centered around economic analysis of OSHA standards and the possibility of alternative methods of regulation. Legislative attempts to limit OSHA mounted steadily and peaked in 1980. While OSHA won some of its battles with the White House and Congress, continual resistance to Bingham's policies took much of the steam out of her effort to go "full speed ahead."
Early in 1977 Carter's Council of Economic Advisers (CEA) was mulling over how to balance cold economic statistics against compassionate regulation. President Ford had allowed his order requiring Inflationary Impact Statements to die at the end of 1976 so that the new Administration could make up its own mind about such studies. The Council decided that, while economic impact analysis should not be used to decide whether a particular goal of a regulation is desirable, it could serve to help compare the costs of different regulatory approaches to that goal. In the past, the Council pointed out, agencies had failed to accurately gauge the burdens their rules placed on industry.67 In March the Council tentatively recommended that federal agencies continue to conduct economic studies of proposed regulations, to be completed eight weeks before formal proposal. Twice yearly, agencies would publish lists of subjects on which they planned to set standards. A special review group would examine particular rules in regard to their economic impact on industry, although the decision whether to issue the rule would remain with the agency.
Bingham urged Secretary Marshall to oppose the CEA's idea. She feared that the proposal would interfere with OSHA's rule making process and produce delays and distortions. On top of that, Bingham argued, the proposal violated the OSH Act because it would shift control of the timing and contents of standards outside of the Labor Department. Bingham conceded that some kind of economic impact analysis would be useful in evaluating industry estimates of the costs of proposed standards and in determining the time period allowed before a given standard would go into effect. She indicated that she could support a flexible process if it avoided delays and outside interference. However, her fundamental position was that economics should not be a paramount consideration in setting safety and health standards.68
In early May the CEA partially reversed itself and announced a less restrictive proposal. Instead of having each agency prepare an elaborate economic study to be submitted a full eight weeks before proposing a regulation, they would only prepare a rough analysis which they could submit any time before proposal. These impact statements would also include analysis of alternatives to the proposed rule.69
Dissatisfied with this compromise, Marshall broke with the Administration and challenged the proposal. He said he too was concerned about costs and inflation but he had a "standing declaration that nobody can make a cost benefit study that I couldn't demolish." Marshall feared that even under this proposal, needed regulations could be blocked. Marshall won his point and this plan too was withdrawn.70 Later in 1977, Carter introduced a watered down version of it as part of a regulatory reform plan. Under it, OSHA and the other regulatory agencies would publish semiannual lists of upcoming regulations and would certify that each major rule that they set followed the least economically burdensome approach possible.71
No sooner was the question of economic analysis laid to rest when a group of President Carter's advisers proposed that the government seek alternatives to mandatory safety and health standards. In a memo dated May 27, 1977, Council of Economic Advisers chairman Charles Schultze and two other presidential advisers called OSHA "the leading national symbol of over regulation" and urged that serious consideration should be given to replacing safety (but not health) regulations with a system of economic incentives, such as a revised workmen's compensation program. The adoption of economic incentives to eliminate safety hazards, they argued, would permit OSHA to concentrate its resources on health problems and would show the business community that the Administration was committed to regulatory reform.72
Organized labor rose in emphatic opposition to this proposal. The AFL-CIO called it "an attempt to gut OSHA." UAW president Douglas Fraser telegramed Secretary Marshall that the proposal would "license death and injury in the workplace." The presidents of other major unions sent similar messages.73
In August Carter announced the establishment of an Interagency Task Force on Occupational Safety and Health to follow up on the Schultze memorandum. In deference to labor opposition, however, Carter directed the group to explore ways to supplement, not replace, safety rules, such as educational and information services as well as some use of incentives. The Task Force was also to examine the administration of all federal laws on workers' safety and health, watching for duplication and gaps in coverage. The group, which included Secretary Marshall, delivered a report with many recommendations but without anything concrete on economic incentives.74
Paralleling the support within the Administration for deregulation was the appearance of a number of academic studies critical of the methods and impact of OSHA and other regulatory agencies. In the fall of 1977 two Harvard political scientists published a critique of the agency that was based on a report they did for the Senate Committee on Governmental Affairs as part of its two year Study on Federal Regulation.75 They charged that OSHA had failed to achieve significant safety and health gains, largely because it had shunned consideration of economic factors and adopted instead a "missionary" approach. As OSHA shifted its emphasis to health problems, the authors foresaw ever higher costs of compliance unless Congress intervened. The Brookings Institution published a study by economist Edward Denison in January 1978 on factors that had inhibited the growth of productivity in the economy.76 Denison estimated that job safety and health laws cut measurably into productivity growth. Two months later, economist Murray Weidenbaum (later chairman of the CEA during the Reagan Administration) from St. Louis University prepared a report for the Joint Economic Committee of Congress in which he estimated the cost to business of all government regulations at $65 billion in 1976. By 1979, Weidenbaum predicted, that price tag would exceed $100 billion.77
Studies such as these provided the Administration with an intellectual rationale for reducing the economic burden of OSHA, but inflation provided a strong political motivation. After prices declined in 1976, they climbed moderately in 1977 and then suddenly turned sharply upward in early 1978. This alarmed President Carter and he embarked on an anti inflation campaign, beginning in April. Regulatory reform played an important role by emphasizing reduction of costs of compliance with federal rules. The program had little effect on prices but a dramatic one on OSHA. After 1978 only one more occupational health regulation came out under Eula Bingham.
Legislative attempts to limit OSHA's powers in various ways had been an almost constant feature of its history, but all during the Carter Administration these efforts accumulated support, culminating in a major legislative battle in 1980. In 1978 the Senate passed an amendment to an appropriations bill exempting workplaces with ten or fewer employees from safety inspections, provided that they had good safety records. The House, however, refused to pass this amendment. The idea, however, was revived in 1979 and, with several mitigating provisions added on, it was successful. Enacted as an amendment to the Labor Department's appropriation bill, the exemption was in effect for one year only, ending in September 1980. Sponsored by Senator Richard Schweiker of Pennsylvania, the bill exempted employers with ten or fewer employees from OSHA safety regulations if they were in an industry that averaged less than eight injuries a year per hundred employees. OSHA was still free to conduct health inspections, however, and it could respond to workers' complaints about health conditions, investigate accidents and even conduct safety inspections of highly hazardous plants within exempted industries.78
Encouraged by this success, Senator Schweiker now sought to build a permanent exemption into the OSH Act itself. He introduced a bill late in 1979 amending the Act to exempt from safety inspections all employers, large or small, who had established a good safety record, regardless of what industry they were in. The "Schweiker bill" shifted the focus from industry groups to individual firms. Employers would be expected to conform to all OSHA regulations and would still be subject to health inspections. Schweiker, an original supporter of the Act, believed Congress had made a mistake in casting the Labor Department as a "policeman" for all the nation's workplaces. Through this legislation he hoped to concentrate enforcement on the five to ten percent of all workplaces where it was necessary and stimulate cooperation and voluntary compliance in the rest.79
The Schweiker bill set off the fiercest legislative confrontation over OSHA since its creation. It provoked strong opposition from labor and the Labor Department and acquired unlikely support in the Senate. Schweiker lined up a bipartisan coalition of sponsors. Included were several liberal Democrats, Harrison Williams among them. Williams maintained that OSHA reform was inevitable and that it was better to have his committee, rather than some other, deal with it.80
Organized labor prevailed against the Schweiker bill, despite its bipartisan support. In March 1980 a Philadelphia labor group accused Schweiker of a conflict of interest because just before he introduced his bill, OSHA had cited a company with which he was financially involved for a serious violation. Schweiker countered that he had begun working on his bill before the company was even inspected. While this charge was basically propaganda it helped drum up opposition to the bill among the rank and file. Business, on the other hand, was only lukewarm in support of a bill which many from that camp felt did not place strong enough restriction on OSHA. Several liberal Senate sponsors backed away from the bill and it generated little support in the heavily Democratic House. The bill finally died in Williams' committee. Attempts in the summer of 1980 to revive Schweiker's amendments led to passage of reform bills, but no permanent restrictions on OSHA were enacted.81
After this legislative battle, Bingham planned a full slate of new regulations and other activities for the rest of 1980. The agenda, however, reflected a sharp change that had occurred in OSHA policy since 1978. Except for a proposal to require labels on containers to identify toxic substances, no health standards came out. On the other hand, OSHA issued, proposed or revised a number of safety regulations. For example, it revised and abridged its voluminous rules on fire and electrical safety, as it had for general rules in the Standards Deletion project. To protect about 40,000 roofing workers it promulgated a new standard for safety on low pitched roofs. It proposed a special code of safety rules for dockworkers handling marine cargoes and began development of a standard for safe shut down of electrically powered equipment.82 The defeat of President Carter's bid for reelection in November spurred the agency on in a rush to beat the inaugural "gun" and finish as many projects as it could before January 20, 1981. Bingham's disappointment must have been eased when she received the Rockefeller public service award.83
As she prepared to leave OSHA, Bingham was hopeful about the future of workers' safety and health in the U.S. and philosophical about her experiences at the agency. Asked if she had anticipated strong criticism at OSHA she said, "Of course....I never expected to run a popularity contest." She was more impressed, however, with the support she got from labor, academe, and safety and health professionals working in industry. She maintained that, through grass roots pressure, occupational safety and health in the next decade would inevitably "become part of our lives."84