Freedom First Society

Issue: H.J. Res. 83, Disapproving the rule submitted by the Department of Labor relating to Clarification of Employers Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness. Question: On Passage.

Result: Passed in House, 231 to 191, 7 not voting. (Passed/Agreed to in Senate, 3-22-17, Vote #93.) Became Public Law 115-21 (signed by the President, 4-3-2017). GOP and Democrats scored.

Freedom First Society: H.J. Res. 83 would overturn a last-minute rule of the outgoing Obama administration. That rule, if left standing, would unilaterally extend the statute of limitations from 6 months to 5 years under which OSHA could cite employers for “violations” of record-keeping requirements regarding worker injuries.

The Obama administration had no authority to make this rule — only Congress can revise statutes. Even worse, the rule would further amplify existing unconstitutional federal intrusion in the workplace. The rule does nothing to improve worker safety (see below), while increasing the regulatory burden on employers.

We have assigned (good vote) to the Ayes and (bad vote) to the Noes. (P = voted present; ? = not voting; blank = not listed on roll call.)

Bill Summary: House Joint Resolution 83 makes use of an expedited legislative process authorized by the Congressional Review Act of 1996 to overturn administration rules issued within the previous 60 legislative days.

Analysis of the Department of Labor rule:

We support the House GOP repeal of this rule, a last-minute parting shot by the Obama administration.

However, it is clear from the debate arguments (see below) that the GOP has accepted the federal government’s prior unconstitutional usurpation of state and local authority over the domestic workplace in the form of OSHA (Occupational Safety and Health Administration). (See our summary of the unconstitutional 1970 OSHA power grab, below.)

As Napoleon once astutely observed “the purely defensive is doomed to defeat.” Merely defending against further Federal regulatory intrusions will never stem the growth of Big Brother. There must be leadership for a movement to roll back the unconstitutional federal expansion.

The following excerpts from the “debate” as recorded in the Congressional Record (3-1-17) are instructive:

Mr. Bradley Byrne (R) AL-01:

“Mr. Speaker, America’s workers deserve responsible, commonsense, regulatory policies to ensure safe and healthy working conditions. Let me say that again. America’s workers deserve responsible, commonsense regulatory policies to ensure safe and healthy working conditions. They deserve a Federal Government that holds bad actors accountable, and a government that takes proactive steps to help employers improve safety protections and prevent injuries and illnesses before they occur. Just as importantly, they deserve to know that Federal agencies are following the law. For years, Republicans have called on OSHA to reject a top-down approach to worker protections and, instead, collaborate with employers to identify gaps in safety and address the unique challenges facing workplaces. Unfortunately, under the Obama administration, our concerns usually fell on deaf ears. In fact, one of the administration’s parting gifts to workers and small businesses was a regulatory scheme that reflects not only a backwards, punitive approach to workplace safety, but one that is completely unlawful.”  (Emphasis added.)

FFS: Representative Byrne included two letters in the record from safety organizations opposing the proposed Obama regulation, the first from the American Society of Safety Engineers:

Mr. Byrne:

What [their letter] says is that this regulation does nothing to enhance workplace safety. That is from the American Society of Safety Engineers. Also opposing this regulation is the Coalition for Workplace Safety. I include in the Record a letter from them dated February 17 of this year.”

Mr. Robert Scott (D) VA-03:

“Underreporting means that workplace hazards are masked, making it less likely that employers or employees become aware of patterns that would indicate the need to take corrective actions to prevent future injuries. If injuries and illnesses are not on the log, OSHA may overlook hazards at a worksite during an inspection and consequently leaving workers exposed to correctable dangers. Mr. Speaker, because of underfunding, OSHA only has sufficient resources to inspect a workplace once every 140 years on average….

“But no court has reviewed this new rule, only the predecessor. There has been no appeal of the new rule that has been lodged since the new rule was issued in December. The proper course of action is to have the courts decide the legal question since arguably they are in the best position to interpret the laws and evaluate the precedents….

“On the other hand, if the purpose of passing this resolution is just to eliminate the possibility of OSHA’s clarifying rule could ever be found lawful, then it is obvious that H.J. Res. 83 is an ideological attack without any regard for consequences to worker safety…. [Emphasis added.]

“Mr. Speaker, there are 2,000 inspectors at OSHA. There are 8 million work sites. We can’t expect them to visit every 6 months when the funding only allows them to visit each workplace once every 140-some years.” [FFS: Thank goodness!]

FFS: Mr. Scott inserted several letters supporting the OSHA rule. One dated February 28, 2017 should reveal the existence of a radical network and radical agenda helping to drive the expansion of federal power. The letter was signed by dozens of organizations, including such left-wing outfits as:  Earthjustice; National LGBTQ Task Force Action Fund; National Organization for Women; Natural Resources Defense Council; Public Citizen; Southern Poverty Law Center (SPLC); and Union of Concerned Scientists.

Ms. Virginia Foxx (R) NC-05:

“I rise today in support of this resolution because it will reverse an unlawful power grab and restore responsible worker health and safety policies. Article I of the Constitution is clear. It is the Members of this body—the legislative branch—who write the law. Why? Because we are closest to the people and, therefore, more responsive to the needs and demands of those we serve. It is the responsibility of the executive branch to enforce the laws ‑ not write them. Unfortunately, the previous administration failed to abide by this founding principle. President Obama boasted about his days teaching constitutional law, yet his administration tried time and time again to rewrite the law unilaterally through executive fiat.”

The 1970 OSHA Power Grab

In 1970, Congress passed the Williams-Steiger Occupational Safety and Health Act and President Nixon signed it into law. Citing the impact of workplace injury on interstate commerce, the act unconstitutionally usurped state and local power and authority over regulating the safety of the domestic workplace. The Act applied to every employer, small and large, in the United States.

Under the Act, the Secretary of Labor would publish safety and health standards in the Federal Register, which would have the force of law. Soon after the Act took effect, OSHA published 248 pages of standards with which even small employers were expected to comply.

OSHA compliance officers had the responsibility to ensure employers complied with the standards. The Act gave them the power “to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.”

If the compliance officers found violations during surprise inspections, even small things such as a ladder in need of repair, they could issue citations, fines and compliance orders. Certainly, the Founding Fathers and the 13 States ratifying the Constitution never envisioned that the new government would claim such authority and responsibility.

Furthermore, the Act allowed any disgruntled employee or even a former employee to request an inspection: “Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section….”

The initial implementation of OSHA was extremely tyrannical and resulted in several successful court challenges. However, the basic federal intrusion has never been reversed.

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