As we learned this week, Cal/OSHA and the OSH Appeals Board are in a state of disarray. A daring group of state employees have raised their voices in protest (see “CalOSHA inspectors demand change”) reminding us that dysfunction in their agency can translate into more injuries and illnesses for California’s workers. The collective action of these inspectors and staff is vital. So too is the sole voice of individuals who share their experience and insight.
Meet Jack Oudiz, who joined Cal/OSHA in 1985. Mr. Oudiz is retiring from Cal/OSHA and shares the following:
My statement is compelled by a sense of sadness and disappointment at leaving an organization that is in many ways much less effective than I found it nearly 25 years ago. The Division I leave today has veered so far away from its mission that it has begun to redefine that mission to justify its actions.
Who is Jack Oudiz? In the 1970’s Mr. Oudiz worked as a machinist in the San Francisco Bay area, and was a member of the Steelworkers and then the International Molders and Allied Workers. He discovered the field of industrial hygiene and in 1980 went to the University of Cincinnati to get an Masters degree in the field. In Cincy, he worked for the Molders Union, and with the support of OSHA’s (Asst. Secretary Eula Bingham) New Directions grant program, they were able to establish a H&S Dept. Jack eventually became director of it and engaged their locals around the country in OH&S. In 1985, he went to work for Cal/OSHA in its Sacramento District Office as a compliance industrial hygienist.
More on his career of public service later; he offers us his unique perspective as a long-term Cal/OSHA inspector, in the form of an open-letter exit-interview. In it he writes:
“The history of the enactment of the Occupational Safety and Health Act of 1970 shows that the governmental role in regulating safety and health conditions in workplaces was the direct result of many years of political struggle by workers and their unions. While the Act was far from perfect in its scope and construct, it did establish the fundamental principle, in law, that all workers have the right to a workplace that does not endanger their safety and health, the “General Duty Clause” as the Federal agency calls it.”
“This principle was codified in the California Labor Code as a statement of responsibility of all employers. A national regulatory bureaucracy was created by this Act to assure that this principle was in place and enforced in all workplaces. The Division [Cal/OSHA] is the branch of that bureaucracy in California. It derives its mission and reason for being from that principle. That is, to assure, to the best of its ability, that workers in California are afforded the protection required to keep them safe and healthy at work.
That one clear message has never been articulated by anyone in a leadership role while I have worked in the Division.”
“Consequently, each person who comes to work in the Division is left to define for his or herself what is their role and what is their purpose within this bureaucracy. Since ‘production’ measures have always been given the most outspoken emphasis by Division leadership, some come to see the mission as defined by the number of inspections and citations amassed. Others come to the Division with prejudices and biases regarding workers, unions, employers and, absent any clear guidance and emphasis from above, continue to express those leanings in their daily work. The result, as I have consistently observed it, is a workforce with a wide divergence of commitment to the agency’s mission led by many managers whose success is evaluated and measured by statistics rather than by their level of dedication and ability to create common cause in pursuit of the mission.”
“…California continues to trail both Federal OSHA as well all other state staffing levels with respect to the proportion of enforcement inspectors to the state workforce. This staffing shortage was the focus of recent legislative oversight scrutiny. When given the chance to affirm the need for more staff, the current DOSH Chief buckled to political pressure and declared that ‘efficiencies’ in operation would counter the need for additional personnel. This statement was so ludicrous and the needs are so glaring that even he has now finally had to publically pronounce that the Division is in sore need of more resources and staffing. In the meantime, the present Chief just created and filled a high level staff service manager position with an ‘efficiency’ expert while a Deputy Chief for Occupational Health position remains unfilled for the 10th consecutive year.
“The consequences of chronic staffing deficiencies in enforcement district offices are numerous and have a huge impact on the work and morale of Division staff. When workloads are too great for offices and inspectors, inspections and accident investigations are rushed, witnesses are not interviewed, evidence is not collected, citations are not issued or are given away to avoid time consuming appeals, inspections are conducted by letter rather than in person, some accidents even fall through the cracks and never get investigated. Mentoring of inexperienced inspectors seldom occurs and they are often left to fend for themselves in complicated inspections or investigations.”
“…The historical decline in the strength and influence of the labor movement in California (as well as nationally) in the past 25 years has had a devastating impact on the effectiveness of the Division and its commitment to its mission. It is hard to conceive that at one time the Chairman of the Cal/OSHA Appeals Board was a former union rank and file member and shop steward. The imbalance of power between labor and employers has been reflected in the regulatory process, in the appointments to critical positions on the CalOSHA Appeals and Standards Boards, in the hiring of and decisions rendered by the Appeals Board and its judges and in every other facet of DOSH policies and procedures.”
“The universal use by the Division of advisory committees and the development of regulation by consent, on its face, may have the appeal of fairness and balance, but in reality it has slanted rulemaking power overwhelmingly to employers. It is not unusual for a regulatory advisory body to have a 10 to 1 ratio of representation in favor of employers. Even when labor representation is present, it is customarily severely outgunned in expertise, experience and assertiveness. The outcome, in the case of landmark regulations such as the ergonomics standard and the heat illness prevention standard, clearly reflects this imbalance of power. These two regulations have given DOSH an undeserved reputation as a leader in progressive health and safety rulemaking. The truth is that these regulations were grudgingly enacted only after vociferous labor action (and heat related worker deaths that drew public outcry) and were weaker versions of what was needed.”
“DOSH’s role is intended as an advocate for worker health and safety. The OSHAct did not intend nor require consensus or agreement between the regulated community and those that the agency is intended to protect. The OSHAct did not intend nor require the balancing of worker safety and health with industry profits. Rather, the law requires the agency to protect a worker, to the extent feasible, from ‘material impairment of health or functional capacity even if such employee has regular exposure to a hazard regulated by such standard for the period of his working life.’ [emphasis added]
“When the Division assumes the role of an impartial party in the development of regulation, it abdicates its responsibilities as an advocate for worker health and safety. Because of emphatic employer opposition to the ergonomics standard, the compromise regulation that was passed ignored much of the scientific evidence and has remained essentially unenforceable. The “Noah’s Ark” approach that requires a minimum of two of each type of injury to trigger the requirements of the regulation has meant that many exposed or injured workers lack any protection simply because there may not be any injured co-workers. Consequently, the negligible incidence of cited DOSH ergonomics cases does not begin to reflect the scope of the actual hazard in workplaces.”
“…In recent years, perhaps nothing has had a more deleterious impact on the daily activities and morale of the Division’s enforcement staff than the practices of the Cal/OSHA Appeals Board. The attitudes and decisions of many of the Board’s administrative law judges have been widely perceived by enforcement inspectors and many of their managers as anti-Division and strongly biased in favor of employers.”
“The Board itself has reinforced this perception by capriciously dismissing important citations based on frivolous technicalities such as partially inaccurate company names or downgrading citation classifications without reasonable cause. These decisions and actions have a widespread chilling effect on Division’s staff. Both managers and inspectors are more reluctant to classify serious citations in the expectation of a negative outcome on appeal. ‘Why bother?’ is how many feel.”
“In other cases, staff has begun to reinterpret DOSH regulations based on what they have seen in ALJ decisions. This negative impact has been compounded by practices of the Appeals Board such as overbooking of hearings, arbitrary denial of continuances and expecting worker witnesses to travel great distances for hearings. …The Division leadership has done little to protest or challenge these actions by the Board.”
“…Until there is the political will in California to take seriously the principle established in law by the OSHAct, I don’t expect that the Division will become any more effective in carrying out its mission. We will continue to have leadership beholden to the Chamber of Commerce rather than the working men and women of California and unwilling to address the structural deficiencies of the Division. Those deficiencies have the net result of less effective enforcement of ever weaker regulations and a dispirited workforce in search of inspiration and leadership.”
“Without pressure from below, there is little incentive for change. The OSHAct was in many ways a revolutionary act. For the first time, the dictatorial power of the employer over the workplace was challenged. Government inspectors were given the unprecedented power to not only inspect all workplaces but to shut workplaces or work activities down.”
“It is not surprising that employers and their elected representatives fought the Act tooth and nail. It is also not surprising that these same forces have continued to fight at every opportunity to diminish the Act and the effective enforcement of its intent. What has not been achieved through legislation has been essentially accomplished through sabotage, undermining, and resource starvation. If there has to be an OSHA bureaucracy, then every measure has been taken to see that it cannot effectively function. The more demoralized the workforce, the more complacent the leadership, the less accountability in the organization, the less competent the managers and inspectors, the better for those opposed to the achievement of the Act’s goals.”
“Only a grassroots effort by workers, unions and those who support social justice and human rights can exert the political pressure necessary to correct the institutional problems that have overwhelmed the agency given the duty and responsibility to protect worker safety and health rights.”
Read the complete open-letter exit-interview written by Jack Oudiz.
Jack Oudiz is retiring as a senior safety engineer with Cal/OSHA. His Cal/OSHA service includes district manage of the Modesto office, regional senior IH, designer and manager of the agency’s Professional Development and Training Unit. He led a contingent of Cal/OSHA staff-volunteers to assist at the World Trade Center disaster recovery site in October 2001. Following that, he successully (but not with a struggle) integrated Cal/OSHA into California’s Emergency Response system, leading to the agency’s full integration into the local and State Incident Command System.