OSHA Testimony - Colby


March 31, 2000

TESTIMONY OF GERARD COLBY, former National Vice President of the National Writers Union and currently Chair of the Political Issues Committee of the national Delegates Assembly of the National Writers Union, Co-Chair of the National Writers Union's Book Division, and Chair of the Vermont Local of the National Writers.


OSHA Docket Office, Docket No. S-777

U.S. Department of Labor

200 Constitution Avenue, NW, Room N-2625

Washington, DC 20210

FAX: 202-693-1648


To Whom It May Concern

On behalf of the National Writers Union (NWU), UAW Local 1981, and as a former National Vice President and current Chair of the Political Issues Committee of its national Delegates Assembly, Co-Chair of the National Writers Union's Book Division, and Chair of its Vermont Local, I hereby submit written testimony in support of the promulgation of an OSHA ergonomics standard.

While we find it beyond comprehension that, despite medical studies evidencing the need for such protection, workers who use computers are not initially covered by OSHA's proposed standard, the 5,700 members of the National Writers Union strongly supports this proposed standard as an important step forward in public health and workplace safety. We believe that a law protecting workers from cumulative trauma disorders (hereinafter "CTD's") has long been overdue. Numerous members of our union have suffered debilitating injuries due to risk factors such as repetitive stress, required awkward postures, and unsafe design of workplaces, all of which are scientifically documented as risk factors for CTDs and more importantly, are scientifically documented as being a result of work-related factors. Some of our members have been maimed by such ergonomic risk factors. Some have had to resort to using voice activated software in order to maintain their livelihood as writers. These additional occupational expenses and the risk factors that caused them could have been avoided if an OSHA Ergonomics Standard had been promulgated.


CTDs and work-related factors are so serious that our members have engaged in the following activities to draw attention to them and raise public awareness:


* We have participated in OSHA Stakeholder meetings;

* We have attended health and safety trainings on ergonomics given by UAW Health and Safety Staff;

* We have published articles on ergonomics issues of health and safety;

* We have conducted ergonomic workshops at the 1999 NWU Delegates Assembly and at other events throughout the United States;

* We have strongly urged our Representatives in Congress to vote against any bills that would prevent an OSHA Ergonomics Standard from becoming law.

* And we have submitted written comments to OSHA on March 2, 2000 on the proposed ergonomics standard.

We are aware that practical ergonomics programs are already working in hundreds of worksites and that the Bureau of Labor Statistics 1998 Report showed the effectiveness of UAW-negotiated ergonomics programs, and that methods for measuring and relieving ergonomics streeses and procedures for carrying out practical ergonomics programs have already been developed and verified over the last decade. So, if the science is known, and it is, what valid reason can there be to delay action on an ergonomic standard or to wait completion of still an additional review by the National Academy of Sciences? For our members, who will be affected positively by an OSHA ergonomics standard and by the identifying of causes for injury, there is no valid reason for further delay. Without it, workers face not only injury, but denial of fair compensation from disability programs. There is no valid reason why they should have to risk further injury or be denied access to fair compensation for disabilities resulting from these injuries.

The 5700 writers throughout the United States in the National Writers Union, UAW Local 1981, who face the dangers of unsafe work every day with little or no recourse once they are injured, urge that our concerns over the need for an OSHA Egonomic Standard be considered with the seriousness that they deserve. In our democracy, the public relies on government to place the health and safety of the working citizens of this country over any special interests. We trust that the government is listening to its citizens, just as the citizens are watching to see if the government is responding with compassion.

The National Writers Union therefore strongly supports the recommendations of the Health and Safety Department of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and hereby resubmits those recommendations that were presented in March of this year in the pre-hearing comments of Jonathan Tasini,

President of the National Writers Union/UAW Local 1981. Thank you.


Pre-Hearing Comments




International Union, United Automobile,

Aerospace & Agricultural Implement

Workers of America, UAW


OSHA Proposed Ergonomics Program Standard


Submitted by

Health and Safety Department

International Union, UAW

8000 East Jefferson Avenue

Detroit, MI 48214


These comments are submitted on behalf of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW and its 1.3 million active and retired members.


The UAW strongly supports OSHA's proposed ergonomics program standard as a modest, but critical, first step toward abating the largest single cause of injury and disability among American workers generally, and UAW members in particular. Forward movement has been delayed several years by political controversy. The UAW hopes that this rulemaking proceeding will provide an oasis of science amid a desert of lobbying and sound bites. OSHA's proposal is supported by the experience of the UAW with ergonomics in hundreds of workplaces in many industries. The standard, if enacted, would benefit employees in small and medium sized facilities which now lag behind in implementation of ergonomics. It would benefit employees in facilities which have begun to address ergonomics by establishing a framework of employee rights. It would benefit employers by leveling the playing field and by defining the specific action necessary to protect their employees.


However, the proposal falls short in several areas: medical surveillance programs; time tables for correction of identified hazards; triggers for the ergonomics program; and, scope of jobs to be covered. OSHA must also make clear that this proposal is a step on a longer road to protection, rather than the last word. In the long run, OSHA will need to set actual exposure standards and regulate particular operations.

These comments convey ideas from the practical experience of UAW representatives practicing ergonomics at literally hundreds of worksites across the United States. These locations include automobile assembly and parts plants, but also many other manufacturing, service and public sector facilities.

This experience answers the threshold questions: "Is an OSHA ergonomics standard needed? Is an ergonomics standard feasible?" The answer is yes. The actions such a standard would require are not only feasible, they are being done by many employers and unions even today. The problem for the country is that not enough employers have started these programs, and few, if any, have carried them forward to completion.

Our comments will be in two parts: first, the basis for the standard; second, concerns with the regulatory text.

The UAW comments will emphasize key points:

1. Ergonomics programs are the only means to prevent the majority of injuries suffered by American workers in the automobile industry, and the manufacturing sector generally. Approximately 60% of injuries in the auto sector are MSD's.

2. Practical ergonomics programs are in place in hundreds of worksites and have set the stage for major progress.

3. The Bureau of Labor Statistics 1998 Report Shows Effectiveness of UAW Negotiated Ergonomics Programs

4. Methods for measuring and relieving ergonomic stresses and procedures for carrying out practical ergonomics programs have been developed and verified over the last decade. The science is known. There is no valid reason to delay action on an ergonomic standard to wait for completion of an additional National Academy of Sciences review.

5. The principal need over the next decade is abatement of exposure to physical stresses. In addition, the pace of job analysis needs to speed up as well.

6. Only the direction of an OSHA ergonomic standard will provide employers with definitions of what they need to do, and workers with a means to spur their employers to do it.

7. Corporate-wide settlement agreements in the auto industry demonstrate industry recognition of the existence of MSD hazards, and the elements of industry practice regarding a program to prevent worker injuries arising from exposure to these hazards.

a. The OSHA-UAW-Chrysler Settlement established recognition of hazards in assembly facilities, and a set of triggers for job analysis and correction which went beyond injuries and symptoms complaints on particular jobs.


b. The OSHA-UAW-Ford Settlement extended recognition beyond vehicle assembly to all processes within the auto industry, and established the principle of worker involvement and management leadership.


c. OSHA-UAW-General Motors agreements established specific risk assessment checklists, a process to evaluate all jobs in a facility, a timetable for correction of hazards once identified, and the principle of management stepping forward to include facilities under an agreement.

8. The UAW has developed and implemented an ergonomics model for small manufacturing suppliers and office and professional facilities, which demonstrates that ergonomics is necessary and feasible in such facilities. These programs also establish industry recognition of MSD risk factors and the elements of a program needed to protect employees.


a. Employers in the many small facilities have voluntarily or through the collective bargaining process, adopted a common approach to preventing ergonomic injuries and abating ergonomic risk factors in the workplace.


b. The program includes of all components established in the proposed standard and can be established without hindering the established processes at these facilities.


c. Documentation and testimonials from management representatives state their appreciation to the work performed and its positive impact on their facility.


d. Contract language has been developed to formalize processes in these facilities


e. Challenges to supporting ergonomics in spite of the collective bargaining process continue because of the absence of enforcement of the employer's obligations.


79. Analysis of the proposed standard should start with a description of an employer's present obligations in ergonomics under the General Duty Clause of the OSHA law.


10. The "one-hit" trigger for job analysis is necessary, but not sufficient to detect a significant risk of suffering an MSD.


a. A serious, chronic MSD leading to reduced capacity to work, impairment of non-work activities, and continuing pain is certainly a "material impairment to health or functional capacity."


b. OSHA's method for calculating lifetime risks of disabling MSD's from current BLS incidence rates in various industries is valid. However, this method should be extended to other BLS data systems to broaden the analysis.

c. The MSD risk for restricted day cases and recordable cases, derived from the annual survey, can be estimated using proportional MSD risk derived from the work injury survey results.

d. Lifetime risks of MSD's are substantial for all private employment in the United States, and in virtually every SIC.

e. The "one-hit" trigger allows very large yearly risks to persist.


f. The 3-year escape period provides little assurance that risk factors have been abated.



11. Inclusion of provisions for "Medical Removal Protection - Multiple Physician Review" in previous OSHA health standards was essential to the success of medical programs, and is consistent with the law.


a. In the past, OSHA has consistently found that MRP-MPR was necessary to the effectiveness of medical surveillance programs.

b. OSHA's Lead Standard established the rationale for MRP-MPR, a pattern of medical practices, and also OSHA's statutory mandate to provide these protections.

c. The Formaldehyde Standard established the presumption that OSHA would include MRP-MPR in health standards which required medical testing.


d. The OSHA standard for Methylene Chloride is the most recent precedent for including MRP-MPR in a standard dependent on report of exposure symptoms.

e. The principle impact of WRP will be to prevent economic disadvantage and retaliation against employees who report symptoms of MSD's.

f. Multiple Physician Review is integral to the regulatory scheme in previous standards incorporating the physician's written opinion.

g. WRP is distinctly different from a workers' compensation program. Comments linking the two misread the purpose of WRP or are deliberate distortions.

h. Regulations keeping medical examination results and recommendations confidential from employers has substantial precedent in other occupational settings and should be considered by OSHA.

Below are excerpts of the UAW Health and Safety Department Comments Submitted to OSHA that were also submitted by the NWU.


Full Text

1. Ergonomics programs are the only means to prevent the majority of injuries suffered by American workers in the automobile industry, and the manufacturing sector generally. Approximately 60% of injuries in the auto sector are MSD's.

The need for ergonomics abatement is most clearly shown in the Bureau of Labor Statistics (BLS) Disabling Injury reports. These studies compile employer data on the types and causes of injuries and illnesses. The employer data are a sample of OSHA 101 forms for cases with days away from work.

OSHA has relied on this same data base. The UAW concurs with OSHA regarding to value of this information, with several reservations. These data are best analyzed as proportional morbidity ratio data. This somewhat corrects for expected under-reporting of cases. However, there is likely still bias to under reporting of latent injuries, injuries without blood or fractures. In addition, the category "other" includes conditions which may include MSD's, plus documentation which can't be interpreted. So, a substantial fraction of other, and multiple injuries, are likely MSD's. Type of injury may also confuse acute MSD conditions and chronic MSD conditions which are better classified as CTD's. Many CTD's have acute episodes which can be confused, or otherwise coded, as strain or sprain injuries.

Body part affected is probably the most reliable item in the data base, but is generally uninformative. For example, hand injuries could be cuts, bruises or CTD's, as would be leg and foot injuries. However, virtually all back injuries and shoulder injuries are MSD's, with unknown distribution between overexertion and repetitive motion causes.

mployer's Obligations in Ergonomics Under the General Duty Clause of the OSHA Law


Analysis of the the proposed standard should start with a description of an employer's present obligations in ergonomics under the General Duty Clause of the OSHA law.


Employers are now legally obligated to prevent musculoskeletal disorders caused by ergonomic risk factors by the General Duty Clause of the OSHA Act. The absence of a specific OSHA standard for ergonomics programs does not relieve employers of their obligation to abate known risk factors. Settlement agreements for ergonomics problems have been negotiated between OSHA, the UAW and several UAW employers, including DaimlerChrysler, Ford Motor Company and General Motors based on this obligation.

The proposed standard is to the advantage of employers who want to prevent injuries and illnesses because it defines their obligations. In some regards, the proposed standard concedes issues to employers based on the practical obstacles to General Duty Clause enforcement.

The General Duty approach is simple common sense.

The General Duty Clause states that:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

A long line of court decisions establishes the elements of proof of general duty clause violations:

In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard.

There can be little doubt that many MSD's are substantial physical harm. Extensive evidence shows that MSD's result in severe pain, loss of function of important body parts, deformity resulting from the actual condition or surgery, inability to perform work, and may force employees to leave all gainful employment. The UAW believes that a substantial fraction of milder MSD's, those which initially present as persistent symptoms or threshold recordable cases, will progress to complete disability if the worker persists in the job with risk factors unabated.

The employer is presumed to know workplace conditions are hazards because these conditions are: violations of consensus standards; contrary to industry practice; contrary to suppliers' instructions for use; or violate the employers' own programs and directives. These facts are all ways to establish that the employer "recognized" the hazard, and are also sources of information on what feasible abatement methods are available.


Injury records also establish employer knowledge of hazards. This method was the basis for the OSHA citations leading to ergonomic settlement agreements. The most obvious way an employer would know that a hazard in the workplace is capable of causing serious physical harm is if a member was hurt or made ill.

The practical obstacles to ergonomics enforcement under the General Duty Clause are identification of the particular job or workstation where the injury occurred, and once the workstation is found, identification and documentation of risk factors and abatement methods on specific jobs. In addition, each contested enforcement action would become a mini-rulemaking hearing, exceeding OSHA's resources. However, it is crucial that this record show that the barriers to General Duty Clause enforcement are primarily practical rather than legal obstacles. The unfortunate hiatus in OSHA ergonomics enforcement, during the period when this proposed standard was being developed, has given the impression that employers have a choice of doing nothing at all if the standard isn't issued.

The UAW analysis below suggests that the regulatory text of this proposed rule simply restates the General Duty Clause obligation, and in some instances requires less than the prevailing General Duty Clause obligation. Where an obligation already exists under the General Duty Clause, the specific regulatory impact (cost) should be identified and perhaps subtracted from the cost estimates related to the standard. Where an obligation is less than that which prevails under the General Duty Clause, the regulatory text should be upgraded.

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