1. George Guenther Administration, 1971-1973: A Closely Watched Start Up
Secretary Hodgson selected George Guenther, an experienced public official who was then director of the Labor Standards Bureau, to head OSHA as Assistant Secretary of Labor for Occupational Safety and Health. Guenther had come to the Labor Department from the post of deputy secretary of the Pennsylvania Department of Labor and Industry. Before that he headed a hosiery manufacturing firm in Pennsylvania.
At Senate hearings on April 2, 1971, on his nomination to head OSHA, Guenther stressed that under him the agency would strive to be "responsive and reasonable" in its administration of the Act. Senator Jacob Javits, a New York Republican who had played a major role in the passage of the Act, told Guenther:
"I hope you will remember one thing....We have not finished with the occupational safety law and you....(Y)ou have the lives of millions of workers in your hands....(D)on't be afraid of anybody who tries to intimidate you, whether it is business or labor or politics (sic). You have got friends here and advocates. Come to us."2
During OSHA's start up phase some of its actions and policies were reasonably successful, others were less so. The organizing and establishment of the agency within the Labor Department went smoothly. A decision to seek voluntary compliance and avoid a punitive approach to enforcement was well received by the business community. Because of limitations on resources to protect workers in five million workplaces nationwide, OSHA loosely targeted its enforcement in a worst-case-first approach which emphasized investigation of catastrophic accidents and employers' compliance in the most dangerous and unhealthy workplaces. Partly at the urging of organized labor, OSHA tried to emphasize the "H" (for Health) in its name. The first standard that it set was for asbestos fibers.
On the other hand, a move that brought OSHA long lasting notoriety as a "nit picker" was the verbatim adoption and sometimes unreasonable enforcement of a body of voluntary consensus standards developed by industry associations. While adoption was specifically mandated by the Act, OSHA chose to promulgate the rules en masse and immediately, having them take effect in August 1971 instead of using the full two year phase in period which the law allowed. Another unsuccessful early move was the decision to develop state programs as the primary means of realizing the goals of the Act. Counting on the bulk of the states to participate, OSHA limited the development of its own staff of enforcement officers. It quickly became apparent that the states were not going to participate as extensively as OSHA had hoped. As a result, the agency soon found itself inadequately prepared to directly enforce the law on a nationwide basis. A damaging legacy from the start up period came to light during the 1974 Watergate investigations in the form of an internal memorandum which sought ideas on ways to tailor OSHA's program that would increase business' support of President Nixon's reelection campaign in 1972. There is no evidence that this "responsiveness" program affected OSHA significantly at the time, but its revelation in 1974 did considerable damage to the agency's reputation.3
OSHA's principal client groups — organized labor and the business community — played active roles during the start up phase and throughout the agency's history. Organized labor had been instrumental in the passage of the OSH Act. Labor leaders and workers' advocates, from AFL-CIO president George Meany to Ralph Nader, spoke out frequently on OSHA's conduct and policies. In June 1971 Meany told a special union meeting on workers' safety and health that when the OSH Act passed, "the AFL-CIO served notice that we were going to be watching over the government's shoulder....We warned that if this law isn't fully and effectively implemented, we would scream bloody murder."4 In April 1972 Nader announced the completion of "Occupational Epidemic," a study he sponsored condemning government, business and labor for failing to deal with illness and injury on the job. Published later under the title Bitter Wages, it was prepared at his Center for the Study of Responsive Law by a task force of lawyers, law students, and graduate students in medicine and engineering. Nader and his report had harsh words for the Labor Department, which he called a "hostile environment" for enforcement of the OSH Act.
While organized labor and its supporters agreed that OSHA's initial effort to enforce the Act was not effective, the business community did not have a uniform position on OSHA. Many in the small business community strongly opposed the agency. On the other hand, the National Association of Manufacturers (NAM), Fortune magazine and other entities associated with large enterprises were relatively tolerant of it. Their equanimity resulted to a large extent from the fact that, unlike most small businesses, large corporations were used to dealing with federal regulation and usually had longstanding safety programs of their own.
This is not to say that big business had no concerns about the Act or its implementation. Leo Teplow, a safety expert from the steel industry, called the OSH Act "the most extensive federal intervention into the day to day operation of American business in history."5 Employers were concerned about the competence of OSHA inspectors, the costs of compliance with federal standards, and the burden on business of meeting the Act's requirements to report and record injuries, illnesses and deaths on the job. The consensus standards that OSHA adopted were familiar to large employers, but it was a different matter to employers now that these rules were to be enforced as law.
OSHA took several steps to meet business objections. In January 1972, after receiving numerous petitions from employers for exceptions from record keeping and reporting rules, OSHA eased the requirements somewhat. The previous September the agency granted the Boeing Co. the first interim variance under the OSH Act, which allows temporary exemption from a standard if an employer can convince OSHA that he can provide equivalent protection. OSHA also started to revise its consensus rules. This was part of a three phase standards development program consisting of corrections of minor mistakes in the consensus standard, changes in these standards, and adoption of new safety and health rules.6
Despite such accommodations to business, however, for many smaller employers OSHA loomed as a threat to their economic well being and even survival. In the spring of 1972 a movement centered in Wyoming developed among small businessmen who sought to curtail enforcement of the OSH Act. They flooded their congressmen with letters about alleged harsh tactics by OSHA inspectors, such as forcing businessmen to close because of safety violations and threatening employers with jail sentences.
This campaign had a tremendous effect on Congress in an election year. More than 80 bills were introduced to limit OSHA's powers, principally by exempting small businesses from the Act. Committees held hearings on OSHA. Congressmen spoke out against it. Senator Carl Curtis of Nebraska said that attempts to limit OSHA were a reply to those who would allow the "arrogance of power" to run over small businessmen.7
Organized labor strongly opposed exemptions, but was sympathetic to the problems of small businesses. Jacob Clayman of the AFL-CIO, testifying before a House committee in June 1972, said that stories of harassment were blown out of proportion, but charged that inept administration was causing real problems for small businesses. He said that OSHA had made special efforts to inform large corporations about the Act but failed to include small businesses. George Taylor, also from the AFL-CIO, charged before later hearings that OSHA had been "unpardonably" remiss in its failure to tell small businessmen about their rights and duties under the OSH Act.8
The Labor Department worked hard to defeat the growing movement to exempt small employers. On Capitol Hill, OSHA spokesmen denied charges that the agency fined ranchers and farmers in Wyoming, ordered the closing of a public school, or drove a company out of business because of violations. These claims, they said, were based on nothing but rumors. Guenther told a House committee that he strongly opposed across the board exemptions of small businesses, but indicated that OSHA would support a move to give it the authority to omit inspections of very small employers at its discretion. He also told the committee that OSHA would soon exempt employers with eight or fewer employees from certain reporting requirements. OSHA was also willing to provide consultation visits, if given the legal authority to do so.9
Despite vigorous efforts by the Labor Department and labor unions, exemptions of small employers twice came within a presidential veto of enactment in 1972. In June the House passed an amendment to the Labor-HEW appropriations bill exempting employers with 25 or fewer employees from the Act. The Senate passed a narrower exemption for places with 15 or fewer workers. The conference committee adopted the Senate version of the amendment and sent the appropriations bill to the White House for President Nixon's signature. Nixon, concerned about the size of the appropriations for the departments, vetoed the bill. In the fall, Congress again included an exemption amendment in the new appropriations bill that it sent to the President. However, the Congress and the President were still at odds over the budget and Nixon once again vetoed the Labor-HEW appropriations bill, ending efforts for exemption for the time being.10