Reforming the Workplace: A Study of Self-Regulation in Occupational Safety [Reprint 2016 ed.] 9781512809541

Table of contents :
CONTENTS
PREFACE
1. Introduction
2. The Politics of Regulatory Reform
3. The Law and Enterprise Responsibility
4. Professionalism and Accountability
5. The Labor-Management Safety Committee
6. Flexible Regulatory Enforcement
7. Conclusion
Appendix: Research Methods
INDEX

Citation preview

REFORMING THE WORKPLACE A S T U D Y OF S E L F - R E G U L A T I O N IN O C C U P A T I O N A L SAFETY

Reforming the Workplace A STUDY OF SELF-REGULATION IN OCCUPATIONAL S A F E T Y JOSEPH V. REES

Ujljl U N I V E R S I T Y OF P E N N S Y L V A N I A P R E S S

Philadelphia

Law in Social Context

Series

EDITORS: KEITH HAWKINS, JOHN M .

Oxford University, Centre for Socio-Legal Studies State University of New York at Buffalo, School

THOMAS,

of Management

Copyright © 1988 by the University of Pennsylvania All rights reserved Printed in the United States of America Library

of Congress

Cataloging

in Publication

Press

Data

Rees, joseph V. Reforming the workplace : a study of self-regulation occupational safety / Joseph V. Rees. p. cm. — (Law in social context series) Bibliography: p. Includes index. ISBN 0-8122-8132-2 1. Industrial safety—Law and legislation—United 2. Industrial hygiene—Law and legislation—United 3. United States. Occupational Safety and Health I. Title. II. Series. KF3570.R44 1988 344.73'0465—dcl9 [347.304465]

in

States. States. Administration.

88-20822 CIP

CONTENTS

Preface

vii

1.

Introduction

1

2.

The Politics of Regulatory Reform

3.

The Law and Enterprise Responsibility

4.

Professionalism and Accountability

5.

The Labor-Management Safety Committee

6.

Flexible Regulatory Enforcement

7.

Conclusion

224

Appendix: Research Methods Index

249

241

22 55

85

175

134

PREFACE

The historian Henry Adams once compared the course of American history to the movement of a pendulum—a cyclical rhythm in which the national mood and direction alternates every twelve years. The recent history of government social regulation suggests a similar ebb and flow. Indeed, during the past twenty-five years the swing of the historical pendulum has been quite remarkable. Consider first the pro-regulation mood of the early 1960s to middle 1970s, an era of public purpose that led to an enormous expansion of federal regulation—environmental, health, and safety. Then consider the anti-regulation ethos of the middle 1970s to late 1980s, a private interest era that resulted in a powerful drive to reduce the scope of government regulation, as public problems were turned over to the invisible hand of the market. Now this cycle of government regulation appears to have almost run its course. As the 1980s wind to a close, there are signs not only that the crusade against government regulation is losing momentum, but also that public support is once again increasing for measures to extend and deepen the effective reach of protective social regulation. If government regulation is at a turning point, the question is where that turning point leads as we enter the 1990s.

vili

Preface

Let me suggest two possibilities. One is that the emerging proregulation ethos will be translated into more centralized regulation by the federal government (including more detailed regulatory requirements, stricter rule enforcement, and stronger legal sanctions), thus echoing the adversarial, legalistic style of regulation characteristic of the preceding pro-regulation era. That is one possible future. On the other hand, one might also predict that the changing national mood will influence the role of positive government very differently in the coming decade. Like the preceding pro-regulation era, we will see a new cycle of affirmative government regulation for dealing earnestly with the nation's environmental, health, and safety problems. According to this version of events, however, we will also see a less legalistic and more flexible regulatory climate, in which regulatory policy makers devote less energy to crafting legalistic and deterrence-minded regulatory strategies, and more to devising an array of innovative regulatory alternatives designed to match regulatory tools to regulatory problems in a more discriminating and responsive way. Which vision of regulation will dominate? Although the outcome is far from clear, judging from past experience there can be little doubt that these are politically charged policy choices that will stir considerable public debate. Some of the critical questions then: Is the flexible vision of regulation a promising alternative to the legalistic one? If regulatory enforcement is relaxed will business firms behave responsibly? Must government regulation be stringently enforced to ensure responsible corporate conduct, or can more flexible regulatory strategies be just as effective? This book explores these fundamental issues by focusing on a paradigmatic example of flexible regulation, a landmark regulatory experiment carried out between 1979 and 1984 by the Occupational Safety and Health Administration (OSHA) in California. The Cooperative Compliance Program established a unique threeway arrangement involving unions, management, and OSHA by authorizing labor-management safety committees on seven large construction sites to assume many of OSHA's regulatory responsibilities (such as conducting inspections and investigating complaints), while OSHA ceased routine compliance inspections and pursued a more cooperative relationship with these companies. The keynote was self-regulation.

ix

Preface

For OSHA, the California experiment represented the first significant departure ever from the agency's conventional (which is to say, legalistic and adversarial) regulatory strategy. The results? Judging from accident rates as well as the evaluations of leading participants, there is good reason to think that the innovative regulatory arrangement in California was more effective than OSHA's traditional regulatory regime. A central aim of the book is to analyze how and why. In examining the origins, implementation, and impact of OSHA's first major regulatory reform, this book is as much about exploring the regulatory process from a law-and-society perspective as it is about OSHA's remarkably successful regulatory experiment. How does government regulation operate in society? How does it actually influence the day-to-day organizational practices of regulated firms? What does the operative regulatory system look like from the standpoint of regulated firms? Since these larger sociolegal concerns have guided the study at every stage, it is the reader curious about these generally neglected issues of regulation and social context for whom the study may be of particular interest. To illustrate, let me call attention to two distinctively sociolegal themes that will have a central place in our discussion. One theme is regulatory pluralism. When one thinks or reads about regulation, one almost always thinks about government regulation, as if government rulemaking and enforcement occupy the center of the regulatory universe. But the closer I looked at the regulated firms involved in the Cooperative Compliance Program, the more I realized the limitations of the conventional governmentcentered perspective, and the more I realized the importance of developing a broader and more inclusive conception of the regulatory process. As a step in that direction, we will examine the regulatory process from a perspective I call regulatory pluralism. From this starting point, regulation is not uniquely associated with the state, contrary to the standard view, but is found in many settings. And from this starting point, the interaction among these regulatory spheres, public and private, can condition the operation of each in important ways through a process of reciprocal influence and mutual dependence. As we will see in the chapters to come, the important lesson in this analysis is that any major advance in our understanding of how government regulation works in society

X

Preface

will depend on knowing more about how governmental and nongovernmental systems of regulation interact; otherwise, a significant dimension of regulatory experience, one that influences the dynamics of regulatory governance in significant ways, may well be overlooked. It is my hope, in short, to show the reader the importance of taking regulatory pluralism seriously, for regulatory policy making as well as for the social science study of regulation. Another theme is enterprise responsibility. No one will be surprised to know that some corporate actors, like some individuals, are more "responsible" than others. What role does regulation play in all this? The simple fact is that we know very little about the "moralizing" effects of regulation. With a normative benchmark I call enterprise responsibility, I undertake to evaluate those effects. More precisely, I use enterprise responsibility as a developmental concept, to trace the natural history of a regulated firm's commitments to social values (workplace safety), so that we can better understand how and why those commitments have changed over time in terms of their depth and effectiveness. So conceived, a focus on enterprise responsibility is concerned with the institutionalization of precarious values within the regulated firm and the ways in which regulation (among other factors) can affect that process. The aim, in short, is to understand the moralizing effects of regulation in the development of responsible organizations. Thus, the larger context of our inquiry includes new ways of looking at the regulatory process that apply, I believe, not only to OSHA's landmark regulatory experiment but also to many other regulatory settings. My interest in these matters began when I was a student in the Jurisprudence and Social Policy Program, School of Law, University of California at Berkeley. As an environment for encouraging sociolegal research, no scholar could ask for more. I am deeply grateful to a number of people that I met through the JSP Program and who aided me in various ways. They include Malcolm Feeley, Sheldon Messinger, Phillipe Nonet, and Jerome Skolnick. To Robert Kagan and Martin Shapiro I owe special thanks. My greatest debt is to Philip Selznick, teacher and friend. For their characteristic good cheer and administrative efficiency, I extend my thanks to JSP's Margo Martinez, Charles McClain, and

xi

Preface

Rod Watanabe. And for their useful advice and encouragement, I also owe a note of appreciation to the editors of this series, Keith Hawkins and John Thomas, as well as to Arthur Evans of the University of Pennsylvania Press. The generous support of the Russell Sage Foundation made this study possible. To all my family, especially my mother, I thank you for nourishing me with your love and support. Finally, I dedicate this book to those who matter most in my life, my wife Nancy and my children Rachel, Vanessa, and Joseph.

1 Introduction

This study is about regulation and its reform. On July 2, 1982 the Occupational Safety and Health Administration (OSHA) announced a major regulatory reform—the Voluntary Protection Program. Under its auspices, companies with exemplary in-house safety systems can join the program, assume many of the responsibilities normally handled by OSHA inspectors, and thereby be exempted from regular OSHA inspections. The keynote is self-regulation. As the 1980s come to a close, perhaps no question will be more central to the political debate on social regulation and its reform than the one raised by OSHA's shift in regulatory strategies—when regulatory enforcement is relaxed, will business firms behave responsibly? Must government regulation be stringently enforced to ensure responsible corporate conduct? Or can cooperative regulatory strategies be just as effective? We can now begin answering these questions. The original model for OSHA's nationwide reform was developed in California, where, more than three years before federal OSHA's policy became law, OSHA officials from California and the federal government began testing a similar strategy of regulation. The Cooperative Compliance Program (CCP) was initiated in 1979, and the last project carried out under its auspices was completed in 1984. So it is now possible to begin to analyze the program and its accomplishments. Briefly, the CCP was a three-way arrangement involving unions, management, and California OSHA (CAL/OSHA). The program's

1

Introduction

key feature was a job site labor-management safety committee (consisting of two representatives each from labor and management) that assumed many of OSHA's regulatory responsibilities, such as conducting inspections and investigating complaints. Meanwhile, CAL/OSHA stopped routine compliance inspections and assumed a "monitoring" role. The seven job sites participating in the CCP were large construction projects, ranging in cost from $36 million to over $2.4 billion. They employed from 250 to 4500 workers on each site, all of whom belonged to construction unions. The types of project included one nuclear power plant, three fossil fuel processing plants, two buildings for "high tech" research, and one thirty story condominium. A striking feature about the CCP was that at each project all the major parties to the agreement—labor, management and CAL/ OSHA—could withdraw from the program at any time and for any reason by invoking an escape clause. No one withdrew. Indeed, no one threatened to withdraw because, according to leading participants, the program "worked." A measure of just how well the program worked is its impact on project accident rates. As Table 1-1 indicates, accident rates at CCP projects were significantly lower than accident rates for comparable projects in California, and also lower than those for comparable company projects. Project A's accident rates are especially revealing. The CCP began after construction was already well underway on Project A; about 40 percent of the project—19.5 million man hours—was completed under OSHA's traditional regulatory enforcement system (CAL/OSHA inspected Project A fourteen times in the eighteen months prior to the CCP). On the other hand, about 60 percent of the project—29 million man hours—was built after the CCP's start. Before the CCP Project A's accident rate was 7.2 (lost work day cases per 100 workers); after the CCP began it was 4.3—a 40 percent drop. There is no doubt, according to participants, that a significant part of that drop can be traced to the CCP.1 What are the reasons for the CCP's success? The answer to this question is complex. It is worth pursuing, however, first of all, because the public policy literature is filled with case studies documenting "implementation failures," while the implementation "success story" is the rare exception. More important, though, this inquiry focuses our attention on some key aspects of the regulatory process

3

Introduction

TABLE 1-1 ACCIDENT RATES* FOR CCP

Project

Project A before CCP during CCP Project Β Project C Project D Project E Project F Project G

Project accident rate

7.2 4.3 4.4 5.7 4.5 8.6 4.8 3.66

PROJECTS

1981 California accident rate for comparable projects

Accident rate for comparable company project(s)

12.1

**

23.2 23.2 12.1 12.1 12.1 12.1

14.7 14.7 10.45 9.9 6.56 #*

* lost work day cases per 100 workers ** no "comparable" company project

that have received scant empirical attention in the social science literature on regulation. Why does government choose a particular regulatory strategy rather than another? And does it make a difference if one strategy rather than another is chosen? What are the dynamics of legalization and delegalization that lead an agency to become more (or less) legalistic? How does regulatory ideology influence the implementation of regulation? What is the impact of government regulation on private regulatory systems? Conversely, what is the impact of private regulation on government regulation? Should regulatory enforcement officials pursue a cooperative stance and behave more like private business consultants, or a punitive enforcement style and behave like tough regulatory cops? These questions and others will be addressed throughout the course of this study; our purpose in the remaining pages of this chapter will be to set the stage for that discussion. Regulatory

Ideology

and Regulatory

Reform

In discussing "Neglected Areas of Research On Regulation," James Q. Wilson has recently described "two research strategies that might be encouraged in order to fill in what I think are some of the lacunae in our understanding of government regulation of the pri-

4

Introduction

vate sector": to explain why government chooses one regulatory alternative rather than another and to understand alternative organizational structures and procedures and ask what difference they make. 2 We begin our study by exploring the first issue. To be specific, our discussion in chapter 2 will examine what made regulatory reform happen at OSHA and what led the agency to choose this particular regulatory strategy—self-regulation based upon labormanagement cooperation. As the discussion will show, the road to regulatory reform leading to the creation of the CCP is quite remarkable from a policy perspective, especially in view of what the scholarly literature has had to say about regulatory politics at OSHA. Although the prevailing view of regulatory politics at OSHA stresses one factor above all—union-business conflict—it was labor and management, together, that developed and promoted this particular regulatory alternative. In addition, OSHA opposed the proposed policy for over two years before agreeing to implement the program. But how could it be that business and unions developed and promoted the CCP together, if regulatory politics at OSHA is dominated by labor-management conflict? And how could it be that OSHA opposed a regulatory reform supported by two such powerful constituencies? Needless to say, answers to such questions are important in explaining the CCP's success, for an obvious yet indispensable ingredient in that success is the policy's creation in the first place. Considered more broadly, though, answers to such questions are also important for at least two additional reasons: to explore the dynamics of regulatory reform, and to examine the role of regulatory ideology. As a gross generalization, during the 1960s and 1970s "regulatory reform" betokened more precise regulations, more detailed operating procedures, and more stringent requirements. In a word, legalization emerged as the master trend in most regulatory arenas—including, for instance, environmental protection, consumer product safety, anti-discrimination, and worker safety. If there is an overriding characteristic of regulatory reform today, by contrast, it is delegalization. Much remains to be learned about the dynamics of legalization and delegalization, and OSHA's administrative experience is instructive. During the 1970s OSHA developed a reputation for being more legalistic than most regula-

5

Introduction

tory agencies, while the CCP represents an altogether different approach for OSHA, a strategy of delegalization. Far from being unique, OSHA's administrative development thus embodies some essential characteristics of a major trend in the American regulatory system. Why the shift? For the moment, it is sufficient to note that the regulatory ideology of OSHA's major political constituency, organized labor, provides the key. The evidence also suggests that the conventional view of regulatory politics at OSHA, the unionbusiness conflict model, reflects a partial and one-sided understanding of organized labor's ideological orientation. To be more specific, the conventional view overlooks a significant gulf in attitudes, values, and perceptions concerning occupational safety and health regulation, one that divides organized labor into two ideological camps, industrial unionism and construction unionism. Note the role of ideology. Indeed, it is central to recognize the role of regulatory ideology in these developments, not simply because it helps to explain the dynamics of regulatory reform, though that is important, but also because the role of regulatory ideology joins our list of neglected areas of research on regulation.3 The Question

of Regulatory

Impact

In recent years our understanding of the regulatory process has expanded considerably. Yet progress has been uneven. While numerous studies have now probed the recesses of government's regulatory bureaucracy, illuminating many of the once shadowed places of decisionmaking where agency officials make and enforce policy, the question of impact—how regulatory enforcement actually influences the operation of regulated firms—has not received sufficient empirical attention. That this represents a significant gap in our understanding is not difficult to see, especially when one considers that a major goal of protective social regulation is "to change or encourage new systematic practices within the regulated enterprise." 4 After all, to understand what has been accomplished in this regard, it is not enough to know how government's regulatory bureaucracy operates, we must also understand how regulation actually affects the conduct of regulated firms. Oddly enough, even the literature devoted to analyzing the im-

6

Introduction

pact of regulation has had little to say about this dimension of regulatory impact. Take OSHA as an example. Although several studies have analyzed OSHA's impact, they generally do so by focusing upon the nation's statistical record of on-the-job accidents and deaths. 5 Framing the issue in this way has significant limitations, not the least of which is that the overall results are ambiguous and inconclusive because the "data problems in the area are so severe." 6 Even without such limitations, statistical measures provide what we might call, after Clifford Geertz, a thin rather than thick description of OSHA's impact. As the President of the United Steelworkers of America recently observed, "statistics belie the reality of change": Much has transpired since the passage of OSHA in 1970. Of course, we are inclined—sometimes compelled—to engage in statistical measurement of the progress. Unfortunately, we find that statistics belie the reality of change . . . Probably the major impact of the first decade of OSHA has been the development of an occupational safety and health infrastructure which, in turn, generates its own ameliorating influence upon the hard conditions of work and the workplace . . . The 1970 act was the necessary ingredient—the leaven if you please—to bring about . . . the development of . . . private sector institutional responses. 7 How have private sector institutions responded to OSHA? Although there is reason to believe that such responses may well represent "the most positive effects" of OSHA's influence, those effects still await detailed empirical examination. 8 With these general considerations (among others) in mind, chapters 3 and 4 will examine the development of two corporate safety programs. Public and Private

Regulation

In addition to illuminating this neglected sphere of OSHA's influence, another reason for examining the administrative development of actual corporate safety programs is to illustrate the ways in which public and private regulation interact. Since the interaction of public and private regulation joins our list of neglected areas of research, a few words about my perspective on this issue may be in order. Taken as a whole, the American regulatory system can be

7

Introduction

viewed in terms of the proverbial iceberg, the tip being government's regulatory bureaucracy, while the massive body represents society's great array of private regulatory systems. "Most of the regulation that takes place in the United States," as Bardach and Kagan write, "is already in the hands not of government officials but of the myriad individuals employed in the private sector." 9 Marc Galanter puts the point more broadly, "More than many places law in the United States is a private sector business and private ordering is a prominent part of the legal universe." 10 In this connection, it is important to note that most scholarly thinking about regulation does not view the regulatory system in these terms. To the contrary, it tends to view government rulemaking and enforcement as the defining feature of the regulatory process. In effect, it has been dwelling on the tip of the regulatory iceberg. To put the matter another way, the literature displays a strong positivist tendency (in the tradition of Hobbes, Bentham, and Austin) to convert every form of regulatory ordering into a one-way projection of government authority imposed upon a social landscape otherwise barren of normative orderings. On this view, regulatory process tends to be equated with governmental process. There is another scholarly tradition, though, that encourages a broader perspective on the question of regulatory impact—legal pluralism. Put simply, legal pluralism views the forms and sources of legal ordering from a perspective quite different from that of legal positivism, not as unitary and state-centered, but as diverse and multi-centered. Just as health care is not found primarily in hospitals or teaching in schools, the locus of society's regulatory activity is not to be found primarily in governmental agencies; rather, it is to be found in the normative systems indigenous to a variety of institutional settings in American society—universities, unions, factories, hospitals, business corporations, and many other corporate groups. Like the state, these indigenous regulatory systems also have the capacity to make rules and induce compliance among group members.11 This in essence is the pluralist insight, a view of legal ordering which originated with Grotius and Gierke12 and which has more recently been at the crossroads where a number of disciplines meet-—economics13, sociology I4 , anthropology 15 , jurisprudence. 16 Of course, this is not to say that the state-centered positivist per-

8

Introduction

spective is no longer relevant. Rather, it is to observe that as with all perspectives it is partial, obscuring as much as it illuminates, especially when the interaction among these regulatory spheres— public and private—influences the dynamics of regulatory governance in important ways. The evolution of the safety programs of Builder Inc. and Constructor Ltd. (pseudonyms for the two companies we discuss) provides us with a good case in point. As subsequent discussion will reveal, their regulatory environment has a multiplicity of sources; significant counterparts or analogues to direct government regulation can be found in corporate safety programs, the workers' compensation system, the professional safety movement, and various other locations in society. More important, there is strong evidence that the interaction among these regulatory spheres, public and private, conditions the operation of each in important ways; it is a realm of reciprocal influence and mutual dependence. To put the point more broadly, if we are to understand how government regulation works in society, and what the actual, operative regulatory system looks like from the standpoint of the regulated firm, it is essential to consider how "public" and "private" regulation interact. As Galanter observes, "any major advance in our understanding of how official legal regulation works will depend on knowing more about indigenous law." 17 More to the point, it will depend on knowing more about the interaction of governmental and indigenous regulation.

Alternative

Strategies

for Regulatory

Reform

"Does it matter whether government operates in one way or another?" 18 That question points to Wilson's second neglected area of research on regulation—understanding what difference alternative strategies make. In this light consider the CCP. Does it really matter that OSHA experimented with a regulatory alternative that differs significantly from the agency's customary approach? In answering this question the skeptic may be tempted to argue that the CCP made no real difference. It is true that the CCP was remarkably successful. But it is also true that participation in the CCP was limited to companies with exemplary safety records. Hence, the real reason for the CCP's success, it could be argued, lies in the simple fact that participating companies had strong safety programs to be-

9

Introduction

gin with. Though accurate to a point, this characterization of the CCP's success is too limited. Because accident rates at CCP projects were even lower than those for comparable company projects, there is good reason to believe that the CCP did make a difference. This study will use a detailed examination of the CCP's implementation to address the central question of what that difference was. To appreciate the significance of the CCP's success from a broader policy perspective, it is not enough to know that the CCP represented a major departure from OSHA's traditional approach. Because OSHA's scholarly critics have proposed various strategies for the reform of occupational safety regulation, it may be helpful at this point to consider the CCP's precise relationship to these other policy proposals. Generally speaking, proposals for reforming occupational safety regulation include market-based approaches such as risk premiums for workers and injury taxes for employers, labor-oriented approaches in which workers and unions play a central role in the regulatory process, and neo-corporatist approaches in which labor, management, and government share regulatory responsibilities.19 Still another way to characterize the latter two approaches is to view the labor-oriented and neo-corporatist strategies as forms of mandated self-regulation. Because a list of measures of this kind would include the CCP, it is useful to examine the CCP's precise relationship to other forms of mandated self-regulation. As an initial simplifying move, consider the following scale. Direct

Mandated

government regulation




At one end of the scale is direct government regulation, in which regulatory rulemaking and enforcement are both centralized in a governmental agency. A prime example is OSHA's traditional regulatory structure. On the other end is voluntary self-regulation, in which rulemaking and enforcement are both carried out privately, by the firm itself, independent of direct governmental involvement. An example of this would be the in-house regulatory programs of many large companies in which nongovernmental

10

Introduction

corporate standards (environmental, occupational safety, and so forth) are prescribed and enforced internally. There are, of course, many approximations of both regulatory forms. Mandated self-regulation represents a hybrid of these two regulatory forms. At base, it is a governmental strategy for strengthening private regulatory systems. To be more specific, it is a strategy of institutional design whose purpose is to build into the social structure of the regulated enterprise a sustained and effective commitment to insecure or precarious values—such as environmental protection, affirmative action, occupational safety.20 Why mandated self-regulation? To answer this question, it is first necessary to understand some of the characteristic problems associated with OSHA's inspection-and-citation enforcement strategy, the agency's principal regulatory tool. The first and most fundamental problem is perhaps the most obvious. With fewer than 2000 inspectors and almost 6 million workplaces, OSHA inspections are inevitably few and far between. It has been estimated, for example, that manufacturing plants and construction sites will, on the average, be inspected about once every ten years.21 Furthermore, health and safety hazards are not static; at construction sites in particular, circumstances can change from minute to minute in the building process. Under these circumstances, even when a workplace is inspected and all apparent violations corrected, changing physical conditions and work practices are soon likely to yield a new crop of hazards. Worse yet, because OSHA uses uniform regulatory rules that concentrate on identifying well-known hazards common to many workplaces, and since many hazards are unique to a specific workplace, it has been estimated that "OSHA may be capable of preventing no more than a quarter of all occupational accidents" even with perfect compliance.22 For these reasons among others, most analysts have concluded that OSHA has a fundamental problem from the standpoint of regulatory effectiveness. One way to compensate for OSHA's obvious limitations, some suggest, is to strengthen job site safety programs by way of mandated selfregulation. Because mandated self-regulation can encompass both regulatory functions, rulemaking and enforcement, it is useful to distinguish between two general types of this regulatory form—full and partial. Consider first mandated full self-regulation. Under this

11

Introduction

scheme both regulatory rulemaking and enforcement are privatized. While this strategy resembles voluntary self-regulation to the extent that regulatory requirements are both developed and enforced internally by the firm itself, it differs from voluntary self-regulation insofar as the intracorporate regulatory program is officially sanctioned by the government, which monitors the program, and if necessary, will take steps to ensure its effectiveness. Lawrence Bacow's proposal for reforming OSHA's regulatory strategy is a good example. Under Bacow's scheme, OSHA would encourage select unions and their employers to develop their own regulatory requirements and compliance mechanisms as part of the collective bargaining process. In addition, regular OSHA inspections would be suspended so long as the labor-management safety program proved effective.23 Consider next mandated partial self-regulation. While mandated full self-regulation privatizes both rulemaking and enforcement, mandated partial self-regulation limits privatization to either regulatory function but not both. There are two basic approaches to mandated partial self-regulation: public enforcement of privately written rules, and governmentally monitored internal enforcement of publicly written rules. As one example of the latter strategy, consider the following proposal by Les Boden and David Wegman of the Harvard Occupational Health Program. Under their proposal OSHA would mandate partial self-regulation by requiring safety stewards for all but the smallest workplaces. Every workplace with 75 or more employees, for instance, would have one worker out of every 50 be a designated safety steward responsible for monitoring compliance with OSHA standards. In addition, to strengthen the stewards' enforcement authority, Boden and Wegman propose that OSHA policy treat as a willful violation employer failure to correct a danger identified and documented by a steward.24 Under this arrangement, in contrast to mandated full self-regulation, only regulatory enforcement is privatized. In the absence of definitive data, proponents of mandated selfregulation have only been able to speculate about the benefits of this alternative regulatory strategy. The CCP provides some of the needed data because it represents one form of mandated self-regulation. More precisely, the CCP resembles a strategy of mandated partial self-regulation, for the program mandates

12

Introduction

the creation of an intraorganizational compliance mechanism, the labor-management safety committee, to enforce extraorganizational regulatory requirements (OSHA rules). The CCP, it is also worth stressing, marks the first time OSHA has ever adopted a major regulatory alternative to direct government regulation. Regulatory

Enforcement

Styles

What enforcement style should be pursued by enforcement officials, cooperative or punitive? That question raises one of the recurrent dilemmas of regulatory policy making. Neither approach can be easily dismissed because each has much to recommend it; winning cooperation and coercing compliance are both essential to an effective regulatory program. Yet, according to analysts, the two approaches may operate at cross purposes because the strategies fit uneasily with each other as a result of conflicting imperatives. The tools of cooperative enforcement can easily lead to slack enforcement and undue leniency, perhaps even "regulatory capture," thereby weakening deterrence and undermining regulatory effectiveness.25 On the other hand, the tools of punitive enforcement can just as easily destroy agency-industry cooperation as a result of adversarial, legalistic, and unresponsive enforcement. 26 Hence the dilemma. In devising an enforcement strategy every regulatory policy maker faces conflicting demands raised by the inseparable yet opposing requirements of an effective regulatory program. In an attempt to reconcile this dilemma some analysts have recently proposed "flexible enforcement" as an alternative regulatory strategy.27 The critical question, according to proponents of this approach, is not which enforcement strategy regulators should use— cooperative or punitive—but when. Regulators might distinguish between "bad" and "good" firms as a matter of official policy, for example, and employ the tools of punitive and cooperative enforcement accordingly to achieve compliance, thereby maximizing the virtues of each approach while minimizing their vices. A flexible strategy is hardly novel, of course, since studies have found that regulatory agencies in practice sometimes do use different enforcement strategies for bad and good firms, more or less covertly.28 What is new, however, is the proposal to incorporate those differences officially into the legal structure by developing distinct

13

Introduction

regulatory strategies in light of those variations. So conceived, the Cooperative Compliance Program represents a prime example of flexible regulatory enforcement. Historically, our three models represent successive generations of regulatory enforcement policy. If there was an overriding characteristic of most occupational safety regulation before the 1970s, it was the regulator as cooperative consultant. Then a wave of new protective social regulation transformed the nation's regulatory landscape and the emphasis on cooperation receded to the background as punitive enforcement became strongly institutionalized.29 As for the flexible model, while it would be an overstatement to say that it represents a mature third generation strategy of regulatory enforcement, it is beginning to emerge as a possibly significant regulatory alternative, particularly in the federal government's strategy to protect the health and safety of American workers through the Voluntary Protection Program. The CCP, it is worth stressing, represents the first manifestation and prototype of this emerging trend.

Jurisprudence

and Regulatory

Policy

On the face of it, the CCP represents a modest reform. Far from providing a global solution to the nation's occupational safety problems, the program's scope was quite limited. From another angle, however, the CCP's significance can be viewed in more far reaching terms. If nothing else, OSHA's regulatory reform (both the CCP and the Voluntary Protection Program) represents a major departure from the agency's traditional regulatory strategy. Instead of uniform legalistic enforcement, in which variations among regulated firms are generally brushed aside, OSHA's new strategy of mandated self-regulation is designed to adapt techniques of legal control to particular organizations at a distinctive stage of organizational development—namely, large construction companies with already excellent occupational safety records. In consequence of this, the CCP is an example of a different approach to regulatory policy making, one that is avowedly limited in scope because the essential aim is to match specific regulatory tools with particular regulatory problems. As Lawrence Bacow observes, "To do a good job, the regulator needs to know how to match regulatory tools to

14

Introduction

regulatory problems." Hence, "regulatory policy would be both more efficient and more effective if we identified and exploit modest but significant opportunities to do better. And in many cases the only way we will succeed in identifying these opportunities is by asking the simple question 'What works?'" The CCP provides one such example, and therein lies much of its significance for regulatory policymaking. The program's importance must also be appreciated from a broader jurisprudential perspective. From that standpoint, the issue critical to this discussion is that OSHA's regulatory reform may well reflect a new mode of regulatory governance when compared to its traditional strategy, one that is closely tied to a fundamentally different conception of the role of law in society. To illustrate this point (and to lay some conceptual groundwork for developing this theme in the remainder of the study) some understanding of the larger theoretical framework informing this study is useful. In Law and Society in Transition, Phillipe Nonet and Philip Selznick develop a theory of law in which they distinguish three modalities or basic "states" of law-in-society: (1) repressive law or "law as the servant of repressive power"; (2) autonomous law or "law as a differentiated institution capable of taming repression and protecting its own integrity"; (3) responsive law or "law as a facilitator of response to social needs and aspirations." 3 0 One function of the model, they explain, "is precisely to assess the characteristic posture of a legal order, or branch of it." It is important to make clear what is being suggested by this line of analysis. As Nonet and Selznick observe: Repressive, autonomous, and responsive law are abstract conceptions, whose empirical referents are necessarily somewhat elusive . . . We recognize that no complex legal order, or sector of it, ever forms a fully coherent system; any given legal order or legal institution is likely to have a "mixed" character, incorporating aspects of all three types of law. But the elements of one type may be more or less salient, strongly institutionalized or only incipient, in the foreground of awareness or only dimly perceived. Thus although a legal order will exhibit elements of all types, its basic posture may nevertheless approximate one type more closely than the others." 3 1

15

Introduction

What is the basic posture of OSHA's traditional regulatory strategy? And how does it compare with the CCP's? As we shall see in the chapters to come, there is strong evidence that the basic posture of OSHA's traditional regulatory strategy closely approximates the autonomous model. The CCP, by contrast, closely approximates the responsive model of law. In those terms, it is posible to understand the broader theoretical significance of the regulatory policies under study. So, at the risk of oversimplifying Nonet and Selznick's formulation, let us take a brief look at the autonomous and responsive models. First take autonomous law. In essence, the distinctive style and ethos of autonomous law derives from its emphasis upon governance by rules. It is a model of rules, in other words, in which legal energies are devoted to ensuring close accountability to those rules. When we think of law in these terms, we typically think of the "rule of law" and the system of constitutional principles whose origins can be traced to the English revolution. Perhaps a more instructive illustration of the autonomous model, though, at least in setting the stage for this study, is the system of fundamental principles according to which modern bureaucratic organizations, rather than nations, are governed. Nonet and Selznick write: The model of rules evokes the ethos of modern bureaucracy. Like autonomous law, bureaucracy emphasizes fidelity to rules, correct procedures, and defined jurisdictions. It may indeed be regarded, as it was by Max Weber, as the chief historical embodiment of the rule-of-law model. Weber called bureaucratic authority "rational-legal." "Bureaucratic rule," he wrote, "was not and is not the only variety of legal authority, but it is the purest." 32 As will be made clear in the course of this study, OSHA's traditional regulatory posture, in its emphasis on highly centralized and rule-bound methods of social control, strongly reflects the distinctive style and ethos of autonomous law. This approach, as we shall also see in the chapters to come, contrasts sharply with OSHA's first major regulatory reform, the CCP, which resembles instead Nonet and Selznick's responsive model. Again, at the risk of oversimplifying their formulation, suffice it to observe that from the standpoint of responsive law the central task of the legal pro-

16

Introduction

cess is facilitating social needs and aspirations. This means that the legal process is first and foremost a problem solving enterprise, rather than a system for ensuring accountability to rules. This also means that responsive law presumes a far wider and more inclusive conception of the legal process than does autonomous law. When viewed as a "problem-solving, facilitative enterprise," as Nonet and Selznick write, law "can bring to bear a variety of powers and mobilize an array of intellectual and organizational energies." 33 The emphasis, in short, is on developing legal tools (broadly defined) in order to solve social problems. One example of this wider conception involves modes of legal reasoning. With problem solving a central function of law, the responsive model stresses the importance of opening the boundaries of legal knowledge beyond the rule-governed formal rationality characteristic of autonomous law, in order to increase law's problem solving competence. A related example concerns the role of legal rules. With problem solving a central function of law, and with restrictive accountability a secondary function, prescribing and enforcing rules is only one way of getting things done. This does not mean that rulemaking and enforcement are not involved in the regulatory function; but it does mean that they do not define it. According to the logic of this model, as Nonet and Selznick write, making rules "is only one way among many of elaborating policy, for example, establishing 'performance criteria,' defining 'operational goals,' formulating 'guidelines.'" According to this line of reasoning, moreover, "prescribing is only one of many ways of getting things done, for example, allocating resources, creating incentives, establishing facilities, providing services." 34 Note finally in this regard that characteristic of responsive law's approach to problem solving is the strategy of institutional design (bearing out the point that prescribing and enforcing rules is only one way of getting things done from this perspective). Indeed, one may argue that the strategy of institutional design is central to Nonet and Selznick's formulation of responsive law. "A new kind of lawyerly expertise is envisioned," they write of responsive law, "expertise in the articulation of principles of institutional design and institutional diagnosis. Such principles would analyze the characteristic institutional problems that are associated with carrying out different kinds of mandates and exercising different

17

Introduction

kinds of powers in different kinds of environments, and would point to the institutional mechanisms by which such problems may be corrected or moderated." Again, the emphasis is on matching regulatory tools to regulatory problems. "The long term goal would be a capacity 'to determine the most harmonious fit between the purposes and characteristics of particular agencies and various control techniques.'" 35 Now consider the CCP against this backdrop. Instead of uniform legalistic enforcement, with little if any regard to the particular context in which law is applied, OSHA's strategy of mandated self-regulation is specifically designed to adapt techniques of legal control to particular organizations at a distinctive stage of organizational development. This fact alone, quite apart from the program's reliance on institutional mechanisms to solve regulatory problems (such as the labor-management safety committee), suggests that the CCP can be studied as a prime example of the responsive model. If that is so, and if our observations regarding the basic posture of OSHA's traditional strategy are also essentially accurate, then it is probably no exaggeration to state that the subject matter of this study involves something more than two regulatory policies pursued by OSHA. Broadly understood, we will be examining contrasting modes of legal ordering closely tied to fundamentally differing conceptions of law's role in society. Overview

of the Book

The next chapter examines what made regulatory reform happen at OSHA and what led the agency to choose a regulatory strategy based upon self-regulation and labor-management cooperation. Particular attention is given to the role of regulatory ideology, not only because it represents a neglected area of research on regulation, though that is important, but also because some understanding of its role is essential to understanding (contrary to what the prevailing view of regulatory politics at OSHA would predict) what made regulatory reform happen in the first place. Chapters 3 and 4 describe in detail the administrative development of two corporate safety programs, for companies which I call Builder Inc. and Constructor Ltd. Both are real companies that participated in the CCP.36 I have three reasons for this approach.

18

Introduction

O n e is that the discussion uses a "before-and-after" model of analysis to understand the effects of implementing the CCP. The discussion includes the pre-CCP safety programs of Builder Inc. and Constructor Ltd., and the changes undergone as a result of OSHA's regulatory reform. Without such a baseline we have no basis for comparison and no basis for explaining the CCP's success. Another purpose for examining the administrative history of the two safety programs is to explore the question of regulatory impact, so that we can better understand how government regulation actually influences the conduct of regulated firms. The third purpose is to explore the interaction between public and private regulation, so that we can better understand what the actual day-to-day regulatory system looks like from the standpoint of the regulated firms. With that as background, chapters 5 and 6 focus on the CCP's implementation, for the operations of the safety programs of the four companies. There is good reason to believe that the C C P did make a difference in these operations, not least because accident rates for C C P projects were lower than those for comparable company projects under OSHA's traditional regulatory regime. To characterize that difference is the major task addressed in these two chapters. More specifically, we shall see that two factors stand out in explaining the CCP's impact. O n e is the labor-management safety committees' role in the program, which will be examined in chapter 5. The other is CAL/OSHA's role in the CCP, particularly the regulatory style of C A L / O S H A officials assigned to monitor each job site, which will be discussed in chapter 6. In conclusion, chapter 7 summarizes the principal findings of the preceding chapters and considers what lessons the study suggests for regulatory policy making as well as the social science study of regulation. The methodology of the study is outlined in the Appendix.

NOTES 1. According to some but not all participants, however, there is reason to believe that the latter half of the project may have been less hazardous compared to the first half simply because of the different construction processes involved. 2. J. Q. Wilson, "Neglected Areas of Research on Regulation," in

19

Introduction

Roger Noll, ed., Regulatory Policy and the Social Sciences (Berkeley: University of California Press, 1986), 357-58. 3. W. Clune and R. E. Lundquist, "What 'Implementation' Isn't: Toward a General Framework for Implementation Research," Wisconsin Law Review, 5 (1981), 1044-1116:1064; K. Hawkins and J. Thomas, eds., Enforcing Regulation (Boston: Kluwer Nijhoff, 1984), 17-18. 4. R. A. Kagan, "On Regulatory Inspectorates and Police," in Hawkins and Thomas, eds., Enforcing Regulation, 44. 5. J. Mendelhoff, Regulating Safety: An Economic and Political Analysis of Occupational Safety and Health Policy (Cambridge, Mass.: ΜΓΓ Press, 1979); Nichols and Zeckhauser, "Government Comes to the Workplace: An Assessment of OSHA," Public Interest, 49 (1977), 39-69; R. S. Smith, "The Impact of OSHA Inspections on Manufacturing Injury Rates," Journal of Human Resources, 14 (1979), 145; W. K. Viscusi, "The Impact of Occupational Safety and Health Regulation," Bell Journal of Economics (1978), 117-40. 6. Kenneth J. Meier, Regulation: Politics, Bureaucracy, and Economics (New York: St. Martin's Press, 1985), 233-34; also see B. W. Mintz, OSHA: History, Law, and Policy (Washington, D.C.: Bureau of National Affairs, 1984), 345. 7. U.S., Congress, Senate, Committee on Labor and Human Resources, "Occupational Safety and Health Act, 1970 (Oversight Hearings)," 96th Congress, 2d sess., 1980, 745-51. See also L. I. Boden and C. Levenstein, "Regulating Safety—OSHA's 'New Look'," American Journal of Forensic Medicine and Pathology, 3 (1982), 339-42; E. Bardach and R. A. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982), 99. 8. Bardach and Kagan, Going by the Book, 99. 9. Ibid., 217. 10. Marc Galanter, "Beyond Legal Representation: Dispute Processing, Non-Judicial Alternatives and the 'Third Wave' in the Access-tojustice Movement," paper presented at Colloquium on Access to Justice After the Publication of the Florence Project Series: Prospects for Future Action, Florence, Italy, October 15-18, 1979 (mimeographed), 25. 11. See, for example, P. Selznick, Law, Society, and Industrial Justice (New York: Russell Sage Foundation, 1969). 12. George S. Gurvitch, Sociology of Law (New York: Philosophical Library, 1942). 13. See, for example, J. R. Commons, Legal Foundations of Capitalism (Madison: University of Wisconsin Press, 1959). 14. See, for example, Selznick, Law, Society, and Industrial Justice. 15. See, for example, S. F. Moore, Law as Process: An Anthropological Approach (London: Routledge and Kegan Paul, 1978). 16. L. Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1964). 17. Galanter, "Beyond Legal Representation," 25. 18. Wilson, "Neglected Areas of Research," 359. 19. For a recent review of the literature regarding these alternative regulatory strategies, see Charles Noble, Liberalism at Work: The Rise and Fall of OSHA (Philadelphia: Temple University Press, 1986), 207-36.

20

Introduction

20. See, for example, Bardach and Kagan, Going by the Book, Chapter 8; J. Braithwaite, "Enforced Self-Regulation: A New Strategy for Corporate Crime Control," Michigan Law Review, 80 (June 1982), 1466-1506; C. Stone, Where the Law Ends: The Social Control of Corporate Behavior (New York: Harper and Row, 1975). 21. See L. Boden and D. Wegman, "Increasing OSH A's Clout: Sixty Million New Inspectors," Working Papers for a New Society, May/June 1978, 45. 22. See evidence cited in L. Bacow, Bargaining for job Safety and Health (Cambridge, Mass.: MIT Press, 1980), 3 9 - 4 1 . 23. L. Bacow, "Private Bargaining and Public Regulation," in E. Bardach and R. A. Kagan, eds., Social Regulation: Strategies for Reform (San Francisco: Institute for Contemporary Studies, 1982), 2 1 0 - 1 2 ; see also Bacow, Bargaining for Job Safety and Health. 24. Boden and Wegman, "Increasing OSHA's Clout," 47. 25. "Regulatory capture" is much discussed in the literature. See, for example, M. H. Bernstein, Regulating Business by Independent Commission (Princeton, N.J.: Princeton University Press, 1955); G. Kolko, Railroads and Regulation: 1877-1916 (Princeton N.J.: Princeton University Press, 1965); T. J. Lowi, The End of Liberalism (New York: Norton, 1969); P. W. MacAvoy, The Economic Effects of Regulation (Cambridge, Mass.: MIT Press, 1965); B. M. Mitnick, The Political Economy of Regulation (New York: Columbia University Press, 1980); R. A. Posner, Economic Analysis of Law (Boston: Little, Brown, 1973); P. A. Sabatier, "Social Movements and Regulatory Agencies: Toward a More Adequate and Less Pessimistic Theory of Clientele Capture," Policy Science, 6 (1975), 3 0 1 - 4 2 ; G. J. Stigler, "The Theory of Economic Regulation," Bell Journal of Economics and Management Science, 2 (1971), 3 - 2 1 . 26. See, for example, Bardach and Kagan, Going by the Book, 9 3 - 1 1 9 ; J. Braithwaite, To Punish or Persuade, 1 0 4 - 0 9 ; Steven Kelman, Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Policy (Cambridge, Mass.: MIT Press, 1981), 2 0 5 - 1 4 . 27. L. Bacow, Bargaining for Job Safety and Health; Bardach and Kagan, Going by the Book, 123-51; Paul Danaceau, "Developing Successful Enforcement Programs," in Bardach and Kagan, eds., Social Regulation; Braithwaite, To Punish or Persuade, 119-48; Paul Danaceau, Making Inspection Work: Three Case Studies (Washington, D.C.: U.S. Regulatory Council); John Scholz, "Cooperation, Deterrence, and the Ecology of Regulatory Enforcement," Law and Society Review, 18 (1984), 179-224. 28. See, for example, W. G. Carson, "White Collar Crime and the Enforcement of Factory Legislation," British Journal of Criminology, 10 (1970), 3 8 3 - 9 8 ; K. Hawkins, Environment and Enforcement: Regulation and the Social Definition of Pollution (New York: Oxford, 1984); N. Shover, et al., "Regional Variation in Regulatory Enforcement: The Surface Mining Control and Reclamation Act of 1977," in Hawkins and Thomas, eds., Enforcing Regulation, 1 2 1 - 4 6 . 29. This is not to say, of course, that examples of punitive enforcement did not exist before the 1970s, or that examples of cooperative enforcement cannot be found in many regulatory arenas today. Rather, it is to observe that a fundamental transformation has taken place over the past two decades in the character of occupational safety regulation, overall, a

21

Introduction

general movement from cooperative to punitive enforcement. See, for example, Bardach and Kagan, Going by the Book. 30. Phillipe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Harper Colophon Books, 1978), 1 4 - 5 . 31. Ibid., p.17. 32. Ibid., p.64. 33. Ibid., p.110. 34. Ibid., p. 109. 35. Ibid., p . l l l . 36. It should be noted that Constructor Ltd. participated in three CCP projects and Builder Inc. in one, while two other companies participated in the remaining three CCP projects. Access problems precluded including a detailed analysis of their corporate histories prior to the CCP as well. However, my discussions with leading participants (including company officials) in the latter three CCP projects gave no reason to believe that their experience with OSHA's regulatory reform differed in any significant way from that of Builder Inc. and Constructor Ltd.

2

The Politics of Regulatory Reform

When analysts write about regulatory politics at OSHA, they typically describe the process as "a product of the ongoing conflict between labor and management" 1 in which "the whole burden of U.S. labor history . . . has been loaded on OSHA." 2 Indeed, it is said that the very nature of the agency's task generates "continuing organized conflict" between business and unions. 3 So what are the prospects for regulatory reform under these circumstances? Not very good. After all, any meaningful reform must somehow come to grips with "the sharply different goals held by the agency's opposed publics," which is doubtful in light of "the clear, almost petrified, polarization of management and labor." 4 The prevailing view of regulatory politics at OSHA thus stresses one factor above all—union-business conflict. Now consider the origins of the Cooperative Compliance Program. Contrary to what the prevailing view would predict, it was labor and management (construction unions and their employers) that developed and promoted the CCP together while OSHA opposed the new policy. Only after a long process of negotiation and political maneuvering was that opposition overcome and OSHA agreed to implement the program. But how could this be if regulatory politics at OSHA is one of organized conflict? How could it be that business and unions together came up with the CCP? And

23

The Politics of Regulatory

Reform

how could it be that OSHA opposed a regulatory reform supported by both labor and management? In addressing this apparent anomaly my purpose is manifold. Partly, it is to begin our analysis of the CCP's success, since an obvious yet essential element of that success is the policy's creation in the first place. Partly, it is to explain what made regulatory reform happen in this instance. Partly, it is to understand why OSHA chose this particular regulatory alternative. Partly, it is to modify the prevailing view of regulatory politics at OSHA—the union-business conflict model. And partly, it is to highlight the role of regulatory ideology in the politics of regulatory reform. The discussion proceeds as follows. After discussing the concept of regulatory ideology in the first section, in the second I begin examining the two regulatory ideologies that have played a central role in the politics of regulatory reform at OSHA, industrial unionism and construction unionism. In the next two sections I continue this line of inquiry by comparing and contrasting the two regulatory ideologies, first in terms of their respective outlooks as to how regulatory responsibilities should be divided between OSHA and industry self-regulation, and then in terms of their respective agendas for reforming OSHA's regulatory strategy, especially the CCP. The final section describes OSHA's response to the CCP. Regulatory

Ideology

Because regulatory ideology plays a central role in our analysis of what made regulatory reform happen at OSHA, and because the role of regulatory ideology has been a topic "much neglected in the study of implementation," 5 a few preliminary observations about the concept may be in order. First used in the eighteenth century to mean the "study of ideas," the word ideology has since acquired various meanings. Here I will use the term, following Reinhard Bendix, in the specific sense of "ideas considered in the context of group action." Ideology will refer to explicitly formulated ideas "by which spokesmen identified with a social group seek to articulate what they sense to be its shared understandings." 6 As will be made clear in the course of our discussion, these shared understandings are formulated through the "constant interplay between current contingencies and historical legacies." That is to say, they can be

24

The Politics of Regulatory

Reform

explained in part as rationalizations of self interest, articulated as a collective response to the challenges a group confronts, and in part as "historically cumulative response patterns" reflecting the impact of cultural tradition upon a social group.7 "Regulatory ideology" will be used to refer to those explicitly formulated ideas articulated by spokespersons of specific groups as a collective interpretation of, and program for adapting to, the challenges posed by regulation. As will be discussed, such ideas have been expressed by business firms, trade associations, labor unions, and regulatory agencies, among many others. What does regulatory ideology do? In answering this question it is useful to distinguish the external and internal functions of a regulatory ideology, managing an organization's relationship with external organizations and managing the internal components of an organization, although it is important to stress that the two sets of issues are highly interdependent. Organizations are imbedded in social contexts, and every organization must deal with external conditions that may threaten its existence or its policies—that is, it must maintain security. In so doing, to minimize risks and to maintain the organization as a going concern, an organization tends to cultivate a distinctive set of attitudes, an ideology, as a guide in its relations to other organizations. As a simple example, consider the quite different outlooks associated with two automobile manufacturers, Chrysler and Ford. While "Chrysler appears to revel in a role as corporate David taking on government Goliath in the regulatory sphere," according to DiMento, "Ford likes to be seen as the obedient, socially responsible citizen; it will make every effort to educate government on the impacts of regulation but sees itself as complying fully—no matter what the costs—once proposed rules become law." 8 If these observations are correct, then there is reason to believe that each company is guided by a distinct regulatory ideology, a constellation of leading ideas that results in a different way of thinking about regulatory problems and different ways of relating to regulatory agencies. In addition to its external functions, a regulatory ideology addresses issues related to the management of an organization's internal components. Most organizations, for example, must set up an effective system of communication to integrate the diverse con-

25

The Politics of Regulatory

Reform

tributions of its members. A regulatory ideology can facilitate that integration by transmitting the organization's point of view on regulatory matters, thereby establishing a shared understanding among members as to the correct way to define a situation. Examples include the appropriate technology for addressing a regulatory problem 9 explanations of why regulatory violations occur10, and evaluations of the harm caused by regulatory offenses.11 Such beliefs, when infused in some significant part of the organization's membership, serve to integrate their diverse contributions. More precisely, such beliefs provide each member "with an ordered approach to his day-to-day problems . . . in accordance with approved perspectives yet without continuous reference to explicit and formalized rules." 12 To put the matter another way, regulatory ideology can be viewed as one part of the process of social construction of reality in organizations, though its prominence in that process will vary between different groups, different organizations, and different points in time.13 What are the sources of regulatory ideology? Although much remains to be learned in this area, one significant source of regulatory ideology has recently received considerable attention in the social science literature—the professional norms of agency officials. Some regulatory agencies, as James Q. Wilson observes, "have tasks that only professionals—that is, people trained and certified by some external institution—can perform, or perform well." A list would include lawyers, economists, engineers, physicians, and public health specialists. In varying degrees, Wilson adds, "almost every member of a profession will have learned distinctive ways of thinking about policy problems." 14 How these distinctive ways of thinking shape the behavior of regulatory agencies is a question that has been explored by several analysts. In his study of OSHA, for example, Steven Kelman argues that the professional backgrounds of key agency officials, trained in safety engineering and industrial hygiene, goes a long way in explaining OSHA's preference for "engineering" rather than "personal equipment" solutions for addressing occupational hazards.15 In similar fashion, analysts have explored the regulatory orientation of other agency professionals, including lawyers,16 economists,17 doctors,18, and engineers.19 On the whole, as this brief overview indicates, the exploration

26

The Politics of Regulatory

Reform

of regulatory ideology has been limited to the attitudes, values, and perceptions of agency officials, especially those associated with their professional ways of thought. In this chapter we will explore the role of regulatory ideology and its implications for OSHA's administrative development from a different perspective, however, because the evidence suggests that what made regulatory reform happen at OSHA, culminating in the Cooperative Compliance Program, cannot be explained adequately in terms of the professional norms of agency officials. Rather, it is the regulatory ideology of OSHA's major political constituency, organized labor, that provides the key. The evidence also suggests that the conventional view of regulatory politics at OSHA, the union-business conflict model, reflects a partial and one-sided understanding of organized labor's ideological orientation. Most important, the conventional view overlooks a significant gulf in attitudes, values, and perceptions concerning occupational safety and health regulation, one that divides organized labor into two ideological camps, industrial unionism and construction unionism. The Social Foundations

of Regulatory

Ideology

The regulatory ideology of industrial unionism can be characterized as adversary-minded. It has a "get tough" and essentially punitive approach to occupational safety regulation, which can be traced to the distinctive needs and peculiar attributes of OSHA's most influential political constituency, the major industrial unions, such as the United Steelworkers of America (USW), the United Autoworkers of America (UAW), and the AFL-CIO's Industrial Union Department. In obvious ways this adversarial outlook lends important support to the conventional view of regulatory politics at OSHA as a classic labor-management confrontation. By contrast, the regulatory ideology of construction unionism is cooperativeminded. Reflecting the distinctive needs and peculiar attributes of the building trades unions—carpenters, pipefitters, ironworkers, electricians, and so forth—construction unionism manifests a less punitive and more conciliatory approach to occupational safety regulation than does industrial unionism; this approach goes a long way in explaining why regulatory reform at OSHA was con-

27

The Politics of Regulatory

Reform

ceived, developed, and promoted by the construction unions and their employers together. To understand why industrial and construction unionism differ so sharply in significant respects, it is first necessary to consider their regulatory ideologies in light of their respective systems of industrial relations. "An industrial relations system," John Dunlop writes, "is comprised of certain actors, certain contexts, an ideology which binds the industrial relations system together, and a body of rules created to govern the actors . . . The rules of the system may be expressed in a variety of ways . . . [T]hey may be written, an oral tradition, or customary practice." 20 At base, according to union and industry officials among others, the industrial relations system linking the construction unions with union employers manifests a much stronger tendency towards cooperation than does the industrial union experience. "Because of the peculiar economic conditions and characteristics of employment in construction," a leading authority on the construction industry writes, "employers and unions are placed in a much more intimate relationship than in many other industries." 21 In the words of an industrial union official, union-employer relations in the construction industry display a "symbiotic relationship," a strain towards labor-management cooperation that contrasts sharply with the industrial unions where, he says, "confrontation is an everyday thing for us." What places unions and employers in a much more intimate or symbiotic relationship is a product of various factors—historical, social, economic, among others—more or less distinctive to the construction sector. Historically, for instance, construction unions were formed almost half a century before the rise of today's major industrial unions, and in that formative period a symbiotic relationship between construction unions and their employers had already begun to develop.22 The specific attributes of the construction environment encouraging cooperative union-employer relations remain relatively obscure, unfortunately, because the construction sector is still a "very neglected area of research." 23 Nevertheless, according to construction union officials and others, some sources of cohesion are less obscure than others. One factor encouraging cooperative ties is industry struc-

28

The Politics of Regulatory

Reform

ture. Unlike, say, the automobile or steel industry, where a worker may be employed by the same company in the same plant for 30 years, construction sites are continually shifting, so a construction worker may be on the payroll of numerous companies each year. In effect, the construction company leases a temporary labor force. This employment pattern has significant implications for unionemployer relations overall. As one Building Trades' official observes, because workers are so difficult to organize when worksites are always changing, "building trades unions don't organize workers, they organize employers." The end result, he goes on to explain, is that the construction unions' "whole structure is aimed at being able to sign up a contractor, even before the contractor has a job, and provide a labor pool for future jobs." Thus, compared to factory unions, the construction industry's social organization of labor creates a different task environment, a different union organizing strategy, all of which encourages a different orientation towards employers overall. "What springs from that kind of relationship," another Building Trades' official observes, "is an attempt to be less aggressive towards employers, more friendly and more cooperative. Otherwise, we wouldn't be able to organize them." 2 4 What springs from that kind of relationship, in short, is a significant tendency toward union-business cooperation. Beginning in the late 1960s, an economic downturn plus increasing nonunion competition gave this built-in tendency toward union-business cooperation a big push. During this period construction experienced its worst recession in the postwar period, and unionized industrial construction firms (that is, firms specializing in the construction of nuclear power plants, oil refineries, petrochemical plants, steel mills, and so on) confronted direct nonunion competition on a significant scale for the first time. 25 In fact, the larger nonunion firms were growing faster than their unionized counterparts, and capturing a growing share of existing work in the process. 26 As a result of these competitive pressures, the need to reform the existing system of industrial relations governing labor and management relations became increasingly apparent. An examination of unionized construction's productivity problem helps explain why. During the early 1970s work time lost in construction, on average, was 250 percent higher than manufacturing and 500

29

The Politics of Regulatory

Reform

percent higher than all other sectors of American industry combined. To give but one example illustrating the nature of the problem, during this period nearly 40 percent of all construction strikes resulted from "jurisdictional conflicts"—disputes between two or more craft unions claiming the assignment of men to a particular task. 27 If Building Trades' officials hoped to combat nonunion gains, then remedying such problems was imperative. Faced with these circumstances, construction union officials began meeting with officials from the National Constructors Association, industrial construction's major trade association, representing nearly fifty of America's largest unionized contractors. "After listening for 15 years to National Constructors Association (NCA) complaints about manpower shortages, jurisdictional disputes, low productivity and other labor problems that throw work to nonunion contracts," an industry trade journal reported in February 1970, "the AFL-CIO building trades unions have set up a summit committee of general presidents to meet with the [NCA] to develop a remedial, positive action program . . . The aim is to strengthen the competitive position of union contractors and building tradesmen." 2 8 The important point is that this summit marks the beginning of a greatly expanded use of cooperative mechanisms by labor and management. The "National Work Rules Agreement" is a good example. Signed in 1973 by the NCA and the AFL-CIO Building and Construction Trades Department, the pact covers nearly fifty of the nation's largest industrial construction firms and is designed to reduce a construction project's labor costs and increase productivity in various ways, including, among others, a ban on jurisdictional dispute interruptions, binding arbitration of contract disputes, a reduction in the number of nonworking union stewards, and a reduction in overtime rates. 29 Considered broadly, this example illustrates a key fact. Think of a central pattern of development in the social order governing union-employer relations, spanning the past 15 years, a pattern officially described by the Building Trades as a "direction of total reform" aimed at placing "the union contractor in a position to compete effectively." 30 "[T]he AFL-CIO building trades unions are going through a period of transition," an industry trade journal reported in 1973. "When they met . . . for their biennial convention . . . the old truculence was gone, replaced by a broader and

30

The Politics of Regulatory

Reform

more mature vision of the industry as a whole and of the role the building trades hope to continue playing in it." 31 The imporance of this pattern of motivation and action binding construction unions and their employers (at least in industrial construction) cannot be overstressed. That is so not simply because it goes a long way to explain why the regulatory ideology of construction unionism differs fundamentally in character from that of industrial unionism, though that is important, but also because it explains why the two labor organizations responded very differently to OSHA's creation.

The Role of Industry

Self-Regulation

We have already noted that one function of a regulatory ideology is to guide an organization in its relation to other organizations. To illustrate, here we look in some detail at how the regulatory ideologies of industrial and construction unionism established special ways of perceiving and relating to one of the dominant organizations in their regulatory environment, OSHA. Because government regulation can influence labor organizations in various ways, they should not be viewed as isolated and self-contained social units. Rather, such an organization should be viewed as "semi-autonomous social field," to use Moore's phrase, that "can generate rules and customs and symbols internally, but that [is] also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded." "The semi-autonomous social field has rule-making capacities and the means to induce or coerce compliance," adds Moore, "but it is simultaneously set in a larger social matrix which can, and does, affect and invade it, sometimes on the invitation of persons inside it, sometimes at its own insistence." 32 Viewed in this way, OSHA's creation posed some critical questions for industrial and construction unions: How should they interact with the new regulatory regime? When should they rely upon the norms and sanctions of official regulation? And when should they insulate themselves from these external influences? It is necessary to appreciate that industrial and construction unions have answered questions such as these quite differently. To illustrate, observe their contrasting views towards OSHA's

31

The Politics of Regulatory

Reform

creation and the role self-regulation should play in the new regulatory regime. Put simply, from the standpoint of industrial unionism there is little room for industry self-regulation in occupational safety. It is " o u r belief that self-regulation by industry could not work," a leading spokesman for the industrial union safety movement and USW official, Jack Sheehan, testified at O S H A oversight hearings. And it is for that reason, he explains, that "the labor movement appealed to Congress to establish a federal responsibility for workers' safety." O S H A , he continues, "did attack the validity of the voluntary safety movement. It did shatter the notion that occupational safety was a private matter . . . It stated in no uncertain terms that workers safety was a public responsibility." (My emphasis.) More than this, he adds, the O S H Act's passage signals the eclipse of self-regulation by government regulation. "There is a great deal of apprehension as to what will happen to the voluntary safety movement. Many w h o feel its demise have argued that the law should encourage voluntarism and not obstruct it. Well, we in the labor movement do not regret its passing." 3 3 Indeed, self-regulation and voluntarism have never been a fundamental source of regulatory ordering in the occupational safety sphere, he continues; rather, the ordering is derivative, a byproduct of the "force of law to command acceptance." In the words of the U S W official, " T h e only real motivation behind whatever effectiveness it [self-regulation] had was the fear of legislation and the occasional public concerns which might have been aroused momentarily by a tragic accident or by a zealous muckraker." (My emphasis.) 3 4 These remarks epitomize one of the leading ideas associated with the regulatory ideology of industrial unionism, a sweeping condemnation of industry self-regulation coupled with an all-out endorsement of federal intervention. While the reasons for this outlook are complex, two factors stand out. Consider first the impact of tradition. As Bendix writes, ideologies "can be explained only in part as rationalizations of self interest; they also result from the legacy of institutions and ideas which is 'adopted' by each generation much as a child 'adopts' the grammar of his or her native language." 3 5 To illustrate the point, consider the traditionally adversarial ethos of labor-management relations characteristic of the industrial setting since the 1930s, when the national industrial

32

The Politics of Regulatory

Reform

unions arose in a turbulent period of industrial warfare. Then and now, industrial unionism has exemplified American labor history's adversary side: union-business relations shaped by deep-seated mutual mistrust and hostility.36 That legacy, according to union officials, was easy to see in the industrial unions' orientation at the time of OSHA's creation. As a Washington-based AFL-CIO official active in OSHA's creation puts it, the industrial unions' orientation reflects "the militant side of the union movement," which he goes on to describe as "the Walter Reuther kind of thing of being enemies with the company," that all in all management cannot be trusted to behave responsibly. At the time of OSHA's creation, "the industrial unions were confrontational," as another Washington-based AFL-CIO official remembers. '"Go get OSHA in and nail the buzzards'—that was the industrials' view." Although "that view was by no means universal in the industrials," he adds, "most of the people in Washington representing those unions took that view." Just as there are historical factors helping to explain industrial unionism's sweeping condemnation of industry self-regulation, there are historical factors helping to explain industrial unionism's all-out endorsement of federal intervention. Put simply, it reflects a political tradition of sorts whose origins can be traced to the labor organization's New Deal beginnings, when federal intervention provided crucial support to the early organizing efforts of the fledgling CIO factory unions. Ever since, more so than other labor organizations according to analysts, the industrial unions have been strongly predisposed to seek federal intervention for support in achieving their goals.37 This characterization of industrial unionism's outlook on the role of industry self-regulation and federal intervention is accurate as far as it goes, but it does not go far enough in one very important respect. It is essential to recognize the impact of current contingencies as well as of tradition on the regulatory ideology of industrial unionism. More precisely, it is important to underscore the impact of environmentalism. Although it has been argued that the OSH Act's origins and "environmentalism" are not related in any significant way 38 , there is evidence that suggests otherwise. As "environmental awareness" increased among industrial union policy-

33

The Politics of Regulatory Reform

making elites in the late 1960s, so did the perception of risk associated with health hazards in the workplace. "We submit that 80 million workers face an environmental crisis on their jobs, as serious, if not more so, than the environmental crisis we have outdoors," a UAW spokesman testified in 1969 during Congressional hearings on the proposed OSH Act.39 For the environmentalists, smokestack industries—steel mills, textile mills, foundries, among others—were among the most notorious polluters; for the industrial unions they were among the most hazardous workplaces; hence, only, the plant gate separated their concerns. And like the environmentalists, the industrial unions demanded massive federal intervention in view of the "crisis," nothing less than "total" and "unconditional" federal intervention, in the words of a UAW spokesman. 40 Spokesmen for the USW couched their appeal to Congress in similar terms. "We appear before you primarily because we are convinced that we need the force of law to bring about . . . massive and universal changes in worker-safety. We admit that quite openly." (Emphasis in original.)41 "The environmental movement was a most important influence on our thinking," recalls a USW official who helped lead organized labor's campaign for the OSH Act. "Before the late 1960s the industrial unions focused on the so-called slaughter in the workplace—mostly safety problems like injuries to arms, legs, fingers. It's strange to say, thinking about it today, but the health problems of workers in industrial workplaces were relatively unknown." "It was the environmental movement," he continues, "that made us aware of environmental health problems. The terminology, the issues, the substances that were involved, all that spilled over to the fact that they were inside the plant too." For some key industrial union leaders, in other words, those participating in an issue network where environmental and occupational safety issues had become entwined, environmentalism altered the discourse of the regulatory debate. Just as the federal government must assume responsibility for the environmental crisis, so too for the crisis in the workplace. According to this logic, the locus of regulatory authority should thus be shifted, wholesale, away from the private sphere (voluntarism, self-regulation, collective bargaining) to the public sphere—the "force of law to command accep-

34

The Politics of Regulatory Reform

tance." 42 "We are in the midst of a national upheaval over . . . environmental damage. Air and water pollution hearings are eliciting a tremendous response throughout the country," as a Steelworkers' spokesman testified. "But environmental concerns cannot stop at the plant gate. Our workers are demanding that you come inside with your legislative tools." 43 Let us now consider the regulatory ideology of construction unionism. While industrial unionism leaves little if any room for industry self-regulation or voluntarism, stressing instead the need for strong federal intervention in occupational safety regulation, construction unionism leaves "plenty of room for voluntarism," as the carpenter union's spokesman testified before Congress. Indeed, in sharp contrast to the industrial unions, the "building trades . . . traditionally have not come easily to the view that Government intervention is necessary."(My emphasis.) 44 Why the contrast? A partial explanation can be found in differing political traditions. As just observed, since industrial unionism's New Deal origins, when it faced a relatively benign federal government, the labor organization has traditionally emphasized a far-reaching role for federal intervention as a guiding principle in its overall political orientation. But governmental policies can deter as well as facilitate unionization. And ever since construction unionism's origins at the turn of the century, when it faced a hostile federal government, the labor organization has traditionally stressed a more limited role for federal intervention and a correspondingly larger role for "voluntarism" as a key guiding principle. 45 But that is only part of the story. Perhaps just as important, their contrasting views on the federal government's regulatory role also reflect differing perceptions of risk. For industrial unions, the magnitude of risks associated with occupational hazards had increased suddenly and dramatically as a result of environmentalism. But for construction unions no such sense of urgency was felt; from their perspective there was no "environmental crisis" on the construction site, and therefore no pressing need for crisis intervention by the federal government. In fact, when construction union officials discussed the need for federal occupational safety regulation before Congress in the late 1960s and early 1970s, no mention whatsoever was made of construction site health hazards;

35

The Politics of Regulatory

Reform

safety hazards were perceived as the regulatory problem. It is also important to stress that the construction unions had little affinity for environmentalism, ideologically or politically. The reason for this is not difficult to fathom. Quite simply, environmentalists were viewed as one source of the unions' economic woes, advocates of "anti-development," "no-growth" policies, a position which for obvious reasons could hardly be farther from the immediate interests of the economically depressed construction unions. 4 6 Finally, and probably most important, construction unionism's voluntarist emphasis reflects a deep-seated inclination toward union-business cooperation. Unlike the industrial unions' sweeping condemnation of their employers, the regulatory ideology of construction unionism draws a basic distinction between responsible safety-conscious employers and those who are something less than responsible, and uses that difference to stress the continued importance of self-regulation alongside federal regulatory intervention. A few months after OSHA's creation, for example, the Building Trades' President, Hunter Wharton, assessed the OSH Act's essential significance in the following terms. OSHA "provides what has been lacking to make occupational safety work" by providing "the tools and penalties necessary . . . for forcing the laggards into compliance." But then, setting the laggards aside, Wharton emphasized how the improvement of workplace safety "is still going to take enlightened cooperation on the part of labor, management and the government." 4 7 Safe versus unsafe employers and the need for cooperative selfregulation with the safe ones are themes that also pervaded Congressional hearings held a few years earlier on the Construction Safety Act, a bill originally drafted by the AFL-CIO Building and Construction Trades Department, and which strongly reflects the construction unions' overall approach to occupational safety regulation. "To understand the safety problem in the construction industry," then Building Trades' President C.J. Haggerty testified in 1967, "it must be remembered there are four types of contractors," ranging from the terribly unsafe to the extremely safe. After describing how the in-house safety programs of these four types of contractors differ, Haggerty concludes that a comparison of their safety records clearly demonstrates that "accident and injuries in

36

The Politics of Regulatory

Reform

the construction industry can be controlled by safety programs well conceived, carried out, and policed." 48 Thus, there will be plenty of room for voluntarism and self-regulation. Forcing the laggards into compliance was not the only benefit of federal regulation, however. Even more important, according to construction union spokesmen, federal regulation would also provide tools to combat nonunion competition, not only by reducing the accident-related costs of union employers, but more importantly, by equalizing the distribution of regulatory burdens between union and nonunion employers. Federal regulation, in other words, would make union employers more competitive.49 Moreover, federal regulation could reduce the competitive disadvantage their employers, union contractors, were thought to operate under in the absence of uniform national standards. In the words of the Painters' Union General President, nonunion contractors were "given an advantage as a competitive bidder" because "nonunion contractors are quite often in a position to under bid unionized employers, if for no other reason than said non-union contractors are not required to compete with the [union] safety provisions prevailing in the area." 5 0 Hence, unlike their industrial union counterparts, construction union officials stressed the benefits of federal regulation, not only for workers, but for employers as well. To summarize, guided by different regulatory ideologies, construction union leaders responded to OSHA's creation very differently from their industrial union counterparts: by distinguishing responsible safety-conscious employers from those who are less than responsible (a distinction not drawn by industrial unionism), and by weighing the costs and benefits of federal regulation for the responsible ones (a calculation not made by industrial unionism).51 Insofar as federal regulation benefited responsible union employers (by reducing their accident-related costs and by equalizing the distribution of regulatory burdens between union and nonunion employers), then government involvement was to be welcomed as an adjunct to industry self-regulation. Conversely, to the extent government regulation fails to do so (by imposing seemingly greater costs on responsible union employers) construction unionism is likely to view OSHA in a very different light, as unduly burdensome, and is also likely to advocate some form of "regula-

37

The Politics of Regulatory

Reform

tory relief." In essence, the latter is what happened soon after the OSH Act's passage. Regulatory

Ideology

and Regulatory

Reform

After OSHA's creation the industrial and construction labor organizations soon became dissatisfied with the agency's enforcement efforts, though for very different reasons. Guided by very different regulatory ideologies, moreover, they pursued very different strategies for redirecting OSHA's regulatory efforts. The industrial unions' agenda for regulatory reform encouraged OSHA to exert more regulatory pressure on their employers, while construction unions sought regulatory relief for theirs. Each development is examined in turn. INDUSTRIAL

UNIONISM

Given the reputation OSHA has earned for legalistic and overzealous enforcement, it is easy to forget that the agency's original enforcement posture was not that of a strict regulatory cop. Eight months after OSHA's creation, for example, James Hodgson, Secretary of Labor, described OSHA's administrative philosophy as one that "must depend on voluntary support. . . . Enforcement measures are there, but their importance is only that they are there in case of need. It is their existence, not their use, that is important." 52 For this reason, Hodgson explained, OSHA's enforcement strategy would rely above all on "the willingness of all involved to comply voluntarily." That is to say, OSHA's enforcement strategy would stress "the arts of professional persuasion and education, n o t . . . the issuance of citations." 53 As one might expect, the industrial unions strongly criticized Hodgson's administrative philosophy. The AFL-CIO's Executive Council, for instance, described Hodgson's record as one of "footdragging, flabby enforcement and adulteration of the special provisions of the Act setting forth specific rights and protections for employees." 54 Organized labor must assume a "continuous watchdog role," said George Taylor, Director of the AFL-CIO's Department of Occupational Safety and Health. "[I]f we don't we're lost." 55 The Steelworkers responded to OSHA's "footdragging"

38

The Politics of Regulatory

Reform

and "flabby enforcement" in similar fashion, and at their 1972 annual convention officially resolved "to press for the most vigorous enforcement of OSHA." 5 6 In pressing for the most vigorous enforcement of OSHA, the industrial unions influenced the agency's administrative development in at least three important ways. One was administrative centralization. From the beginning, the Nixon administration envisioned the OSH Act as a showcase of the "New Federalism." The states would assume the burden of enforcing the Act, and the federal government would recede into the background to monitor their performance and pay some of the bills. From the beginning, however, the industrial unions opposed OSHA's decentralization by way of "state plans." The AFL-CIO Industrial Union Department, for example, described OSHA's decentralization as a "balkanization of occupational health and safety in the country" that would fragment and cripple the agency's enforcement authority. Hence, the Department called for "total federal preemption of standards and their enforcement in all 50 states." 57 To understand why the industrial unions opposed OSHA's decentralization, it is also essential to highlight a key political consideration at stake in the debate. Since their creation in the 1930s, the major industrial unions have displayed a long-run trend toward centralization of power and authority, a development which has resulted in a vertical or top-down system of administrative authority. No doubt the causes of this development are complex, yet one factor stands out: the emergence of a national economy and massproduction, mass-market industries, like automobiles and steel. To deal effectively with highly centralized opponents like General Motors and United States Steel, it was imperative for industrial unions to concentrate authority at the top as well. The end result, today, is a relatively large staff at the national rather than the state level. With that background, it is not difficult to see why the industrial unions wanted to keep OSHA centralized. As George Geunther noted in 1973 at the end of his tenure as OSHA's first chief, "I realize that many elements of . . . big labor prefer Federal enforcement because they can exert leverage in Washington." 58 "The industrials," as one AFL-CIO official puts it, "have always been opposed to state plans because most of their political muscle is in Washington." Today, largely because of that opposition, 27

39

The Politics of Regulatory

Reform

states do not administer OSHA enforcement programs, including such key industrial states as New York, New Jersey, Pennsylvania, Ohio, and Massachusetts. "You see," another AFL-CIO official explains, "wherever the industrial unions dominate you've got no state plans." 5 9 Second, industrial unions influenced OSHA's style of regulatory enforcement. Within five years of its passage more than 400 amendments to the OSH Act were introduced, with the most prevalent type of bill proposing to allow OSHA to provide on-site consultation without citation or penalty. While most of the business community supported these amendments, the industrial unions successfully blocked all attempts to give OSHA a consultative role. Why? There can be little doubt, in the words of a Steelworkers' spokesman, that a consultative role for OSHA "would quickly dilute its regulatory or enforcement effectiveness." 6 0 For industrial unionism, in other words, the antidote to OSHA's "flabby enforcement" is stringent enforcement. Hence, the bare fact of infraction, regardless of context or intent, warrants punishment. " O n e of the key strengths of the Federal act is its unadulterated principle of first instance sanctions," states the United Steelworkers' Legislative Director. If an inspector "discovers a violation of a standard, he must issue a citation." 6 1 Third, the industrial unions reordered OSHA's enforcement priorities. On May 29, 1971 OSHA announced the "Target Industries Program" in which specific industries would be targeted for intensive regulatory efforts—such as longshoring, roofing, meat processing, and mobile home manufacturing. 62 But from the industrial unions' standpoint, the Target Industries Program missed the regulatory problem—the industrial unions' employers (especially steel mills, chemical plants, and iron foundries). 63 "[WJe're going to have to see if we can't get the Labor Department's priorities refocused on the industries that really have the most difficult to solve safety and health problems," said AFL-CIO's George Taylor. 64 To this end, the industrial unions mobilized workers to flood the agency with complaints. "[U]nions are going to have to be the unofficial enforcers of the Act," said Taylor. (My emphasis.) "We are going to have to gear-up . . . our unions, from the shop level on up, to take advantage, intelligently, of our rights and protections under the Act and use them to help improve the workplaces." 6 5

40

The Politics of Regulatory

Reform

Taylor was explicit as to the organizing drive's purpose, "This means that the Labor Department or OSHA, instead of being able to set its own priorities—like the Target Industries Program— will be spending more and more time responding to random complaints." 66 A key example of the industrial unions' mobilization strategy was announced by UAW President Leonard Woodcock on August 7, 1972, when he outlined a two-year "battle plan" to reduce and eventually eliminate "the carnage of death and hazards to life and limb" in the iron foundries. For this purpose, about 2,000 local union safety representatives and 800 UAW International Representatives received training in OSHA standards and regulations. They will not hesitate to file a complaint with OSHA, and get an inspection, whenever necessary, according to Woodcock. Unions must take this active role, he explains, because "We recognize . . . that the important protections for workers contained in the law have little meaning if unions do not take an aggressive role in implementing them . . . The UAW has taken such a role." 67 In other words, this means that OSHA would have to spend more time responding to the complaints of industrial union workers and, by doing so, focus more of its enforcement energies on industrial union employers. Suffice it to observe that within three years OSHA changed its enforcement priorities accordingly.68 To summarize, the industrial unions' agenda for regulatory reform at OSHA displays three closely related features—more centralization, more enforcement, and more stringent enforcement— all aimed at bringing greater regulatory pressure to bear on their employers. According to this view, in other words, legal energies should be devoted to ensuring strict compliance with regulatory rules. There is good reason to believe, moreover, that this "get tough" strategy strongly reflects the regulatory ideology of industrial unionism and does much to explain why and how OSHA developed a reputation for stringent and legalistic enforcement. 69 To put this development in more general terms, with legal energies increasingly devoted to ensuring close accountability to rules as a result of industrial unionism (among other factors discussed in chapter 6) OSHA's regulatory posture increasingly developed a distinctive style and ethos whose essential character resembles the

41

The Politics of Regulatory

Reform

autonomous model of law (discussed in chapter 1) with its overriding emphasis on governance by rules. CONSTRUCTION

UNIONISM

Like the industrial unions, construction unions also mobilized their rank and file after the OSH Act's passage. In the words of one construction union official, "Our guys just swamped OSHA with complaints." Unlike the industrial unions, however, construction union officials soon discovered that the costs associated with OSHA, for their employers, were steeper than expected. In effect, legal mobilization had backfired. This happened in at least two major ways, according to officials from organized labor, management, and OSHA. First, the effect of OSHA inspections was very disruptive because inspectors lacked the expertise required to carry out inspections of construction sites in a competent and effective way. An OSHA official who has served as a liaison with construction unions explains why. "As a general rule, the OSHA inspectors sent to construction sites are not experts in construction. In fact, people who have never been on a construction site before are being sent out to inspect these sites . . . That outrages the building trades' people. 'OSHA/ they say, 'doesn't even have the courtesy to send a competent person out to the job. If we file complaints we just get assholes who come out, stir up the job and cause a lot of trouble for the employer. We just want to get the job fixed.'" (My emphasis.) 70 A second unintended consequence of legal mobilization also caused concern among the construction unions. Indeed, considering the threat posed by nonunion competition, it was a consequence that construction union officials found most troubling. There is no doubt among Building Trades' officials, according to one top official, that organized labor's legal mobilization after the OSH Act's passage generally failed to activate nonunion workers. As a result, "Not only did we bring OSHA down on union contractors in an ineffective and incompetent way, but also in a disproportionate way . . . So we suddenly found that we were punishing our own employers and nonunion employers were going scott free. (And these employers already had a fairly decent accident rate because

42

The Politics of Regulatory

Reform

of the union activity over the years). That is something that has really irritated us." (My emphasis.) 71 To counter the unintended consequences of their legal mobilization the construction unions thus developed an agenda for regulatory reform very different from that of the industrial unions. It included at least four major items: (1) more state plans in order to enhance construction union influence over OSHA, (2) a new OSHA complaint policy designed to delegalize the orientation of workers, (3) a new training program designed to increase the construction know-how of OSHA inspectors, and (4) the Cooperative Compliance Program. In the first place, construction unions lobbied for OSHA's decentralization. While industrial unions strongly opposed state plans, construction unions strongly favored them, a contrast which points to a basic difference in the overall administrative structure of the two labor organizations and their corresponding regulatory ideologies. In contrast to the industrial unions top-down vertical structure, construction unions are horizontally structured, which is to say that power and authority are concentrated at the local level. "Look at the Building Trades in Washington," as an AFL-CIO official puts it. "They're very very small. But take a look at the Building Trades in the various states and you see a very different picture. There's an enormous sum of money going from the Building Trades to state legislatures . . . That's why the Building Trades favor state plans." Second, to dampen the rank and file's proclivity to take their complaints directly to OSHA, in 1977 the AFL-CIO Building and Construction Trades Department adopted a formal policy on filing complaints. In essence, the policy stated, OSHA should be a last resort.72 Indeed, so important is it that workers try to resolve safety-related problems through their union, and view OSHA as a last resort, that the union's guidelines are summarized on the outside back cover of their safety manual. Third, to remedy legal mobilization's other unintended consequence, incompetent inspections, in 1974 the Building Trades' established a four week training program, funded by a grant from OSHA, in order to place one hundred union officials with OSHA. 73 "We wanted to get more compliance officers from construction," a Building Trades' official explains, "people that knew construction problems and knew what

43

The Politics of Regulatory

Reform

they were looking at." The origins of the Cooperative Compliance Program can be traced to this training program.

THE COOPERATIVE COMPLIANCE

PROGRAM

At the end of the training program's first year, construction union officials invited member companies of the National Constructors Association (NCA) to send representatives and join the program. The union's motives for doing so are explained by a Building Trades' official in the following terms: The open shop thing was on the building trades' mind in establishing the labor-management training program. It was part of their organizing tactic for the employer. In other words, ultimately what we sell to the employer is a qualified craftsperson. So now that OSHA is here—and employers are being fined and workers compensation rates are going up—we would now like to provide an employee who is more cost effective in the regulatory area. So part of the idea, because we knew we were dinging the employer for the extra money, was to deliver a little more goods for that money so that employer won't go out and sign up as a nonunion contractor. (My emphasis.) It was during the second phase of the training program in 1975, now with 100 representatives from NCA companies as well, that the twin hallmarks of OSHA's future reform (the Cooperative Compliance Program and the Voluntary Protection Program) were conceived—a job site labor-management safety committee that would function as a surrogate OSHA inspector. 74 "Everybody among the faculty thought it was a good idea," an instructor with the Building Trades' recalls. "So the idea really grew from there." Why was the concept of self-regulation based on a joint labormanagement safety committee so well received by labor and management? Ideas and economic interests both figure in the explanation. Consider first the role of regulatory ideology. As we have already noted, one major source of regulatory ideology is professional norms. The point is worth stressing, for just as lawyers and economists display distinctive ways of thinking about regulatory problems, so too do construction safety professionals, such as the training program faculty. More precisely, the training program's

44

The Politics of Regulatory

Reform

faculty were drawn from the nation's leading construction safety professionals in management and labor. These safety engineers, at the vanguard of their profession, share a distinct body of professional commitments, skills and aspirations—"Safety Management," the dominant professional ideology in safety engineering today. It is central to recognize one major tenet of Safety Management: to achieve a fully-developed, well-functioning occupational safety program, labor-management cooperation is of central importance. 75 "To continue this debate," an exponent of Safety Management has written, "serves only to continue to obscure the reality of the situation and perpetuate the adversary system in an area that cries out for a unified cooperative approach." 7 6 Hence, the need for greater labor-management cooperation strongly appealed to their professional ways of thinking. 77 Lest the argument sound too idealistic, it is important to underscore the benefits self-regulation seemed to offer construction unions and their employers, not only in terms of their ideal interests—professional safety management—but also their material interests. As one top construction union official observes, "I would say that 60 to 80 percent of our motivation for cooperating with management, and pushing the self-regulation approach, has been the threat of the open shop." In the words of another union official, "Built into this whole period of time, the building trades were trying to give union contractors some kind of relief from OSHA inspectors and to liberate those inspectors to deal with the nonunion competition." If we are to understand the origins of OSHA's first major regulatory reform, we must therefore appreciate the interplay of ideal and material interests, a process of reciprocal influence in which ideas, like switchmen, determined the tracks along which action has been pushed by the dynamic of interest. As the German historian Otto Hintze has stated: All human activity, political and religious, stems from an undivided root. As a rule, the first impulse for . . . social action comes from tangible interests, political or economic . . . Ideal interests elevate and animate these tangible interests and lend them justification. Man does not live by bread alone; he wants to have a good conscience when he pursues his vital interests; and in pursuing them he develops his powers fully only if he is conscious of simultaneously serving higher purposes than

45

The Politics of Regulatory

Reform

egotistical ones. Interests without spiritual elevation are lame; on the other hand, ideas can succeed in history only when and to the extent that they attach themselves to tangible interests. 78 In 1976 the NCA's Health and Safety Committee created a subcommittee to explore further the feasibility of establishing a labormanagement self-inspection program, and a nuclear power plant construction project in San Onofre, California soon emerged as a good candidate for a trial project. According to Building Trades' officials, experience with CAL/OSHA at the project is emblematic of the problems associated with the construction unions' legal mobilization and the union employers' corresponding need for regulatory relief. In the eighteen months prior to the CCP's start the nuclear power plant project was inspected fourteen times by CAL/ OSHA, all but one of the inspections triggered by employee complaints. For the company, these inspections were both time consuming, because of the sheer size of the project, and costly. 79 In addition, the project had an exemplary safety record—41 percent below the average incidence rate for comparable projects in California—which may explain why, after fourteen CAL/OSHA inspections, only one violation was cited. 80 In this respect, moreover, the California job site was a prime example of the responsible safety-conscious employer singled out by the construction unions as deserving of "enlightened cooperation" and regulatory relief. Given all that, say union and management officials, they had little difficulty in reaching an agreement on a self-regulation plan for the nuclear power plant project. That same year, 1976, the plan received the unanimous endorsement of all the national construction unions. 81 OSHA's

Reaction

The argument up to now has been that during the first decade of the OSH Act's implementation, industrial and construction unions sounded very different calls for regulatory reform—"get tough" versus "regulatory r e l i e f " — a contrast that strongly reflects their corresponding regulatory ideologies. That contrast, as we will now see, also explains why the proposal for regulatory reform made by construction unions and their employers encountered strong opposition both from industrial unions and OSHA.

46

The Politics of Regulatory

Reform

As mentioned, the industrial unions were OSHA's most influential constituency during the period under discussion. And it is their influence, according to union and OSHA officials, that largely explains OSHA's initial response to the proposed regulatory reform. The whole process between 1976 and 1979, when the CCP started, was a slow one because "FED/OSHA was flat out against the program," a top CAL/OSHA official recalls. More to the point, "They were a real roadblock because of Eula Bingham's political base in the industrial unions." Appointed OSHA's Chief by President Carter in 1977, Eula Bingham's administration represents the high point of industrial union influence over federal OSHA, largely because of her background and political base. "Bingham's first contact with the unions took place while she was at the University of Cincinnati doing studies of coke oven standards," an AFL-CIO official recalls. "She developed a relationship with the Steelworkers through that. When Carter came in, the Steelworkers and the industrial unions were a big influence in getting her appointed as Assistant Secretary of OSHA." It is also worth noting that the construction unions opposed Bingham's appointment because of her background and political base. This political context helps to explain federal OSHA's response to the Cooperative Compliance Program. "We first wanted to know what the AFL-CIO's reaction to it was," a former deputy to Assistant Secretary Bingham recalls. "The building trades were enthusiastic about it. On the other hand, the industrials didn't like it. They were concerned because of the ramifications it might have for all kinds of workplaces, not just construction; that it was a bad precedent." "We were opposed to the cooperative compliance approach," a Washington-based Steelworkers' official recalls, "because we didn't want an approach adopted as national policy that would enable our employers to be treated as if the state of relative non-confrontation that exists in the building trades exists for us too. It doesn't apply." (My emphasis.) Thus, the cooperative compliance approach—with its emphasis on voluntarism, self-regulation, and labor-management cooperation—was fundamentally at odds with the regulatory ideology of industrial unionism. "We couldn't just stand by and not oppose a proposal like this," says a Washington-based Industrial Union Department official. "It was setting a bad precedent. The

47

The Politics of Regulatory

Reform

legislative history of the Act doesn't show exemptions from inspections for any type of workplace, whether its the so-called 'safe workplace' or any other." Divided by opposing regulatory ideologies, organized labor's split left OSHA "caught in a bind," in the words of a top CAL/ OSHA official. "They were under pressure from the building trades to promulgate a set of regulations to allow for cooperative compliance on a national basis. OSHA was also under pressure from the other side, from the AF of L Industrial Union Department, not to do this . . . And the simplest thing to do when you're caught in a bind like that is to just put it on a back burner." Consequently, as a Washington-based construction union official remembers, "We battled with OSHA almost weekly to get them to approve it and go along with cooperative compliance." This went on for two years. It is not entirely clear why, after two years of opposition, FED/ OSHA finally changed its position and allowed the CCP to begin. Assistant Secretary Bingham declined my request for an interview. "Bingham changed her mind," according to a highly placed construction union official, "because we took it over her head and went to Marshall, the Secretary of Labor. And at the end, facing reelection, the Carter administration was trying to be more responsive to the building trades." Although not excluding the possibility of such pressures, FED/OSHA officials account for Bingham's change in different terms. 82 In any event, over the industrial unions continued opposition, a four member labor-management safety committee began meeting weekly at the California nuclear power plant project in March of 1979 in order to carry out OSHA's first major experiment with regulatory reform. Its success, including a 40 percent drop in accident rates, soon led CAL/OSHA to expand the program to six other large-scale construction projects, and it also led FED/OSHA officials to begin laying plans for a nation wide regulatory reform modeled after the California program.83 Conclusion Regulatory decisions made by OSHA are inevitably among the most conflict-ridden issues governments deal with, because the

48

The Politics of Regulatory

Reform

"interest groups contending over government occupational safety and health policy, organized labor and business, are the best organized in society." 84 This, the prevailing view of regulatory politics at OSHA, stresses the political obstacles to regulatory reform OSHA policymakers confront. And rightly so, when one considers that so much of what OSHA does is in fact embroiled in industrial warfare of the sort OSHA's most influential constituencies— industrial unions and their employers—are engaged in. From this perspective, the origins of OSHA's first regulatory reform are quite remarkable. If anything, when one considers the industrial warfare model, one is led to expect no significant reform at all, much less a grass roots reform developed and promoted by unions and business together. Yet from another angle, one that highlights the role of regulatory ideology in the dynamics of regulatory reform, it is not difficult to see why this happened. For as the preceding discussion has shown, the conventional view reflects a partial and one-sided picture of OSHA's political environment. More specifically, to understand what made regulatory reform happen, and to understand why OSHA chose a strategy of mandated self-regulation, it is important to understand that adversary values intimately associated with industrial unionism compete against cooperative values closely tied to the regulatory ideology of construction unionism. Hence, interpretation of regulatory politics at OSHA requires greater sensitivity to the intricacies motivating organized labor, particularly the constellation of attitudes, values, and perceptions by which tasks and problems are defined in the regulatory process.

NOTES 1. J. Mendelhoff, Regulating Safety: An Economic and Political Analysis of Occupational Safety and Health Policy (Cambridge, Mass.: MIT Press, I960), 5. 2. Michael Levin, "Politics and Polarity: The Limits of O S H A Ref o r m , " Regulation, 3 (November/December 1979), 3 3 - 3 9 : 34. 3. S. Kelman, "The Occupational Safety and Health Administration," in J.Q. Wilson, ed., The Politics of Regulation (New York: Basic Books, 1980), 2 5 6 - 5 7 . 4. Levin, "Politics and Polarity," 34; Kelman, " T h e Occupational Safety and Health Administration," 266; Kenneth Meier, Regulation: Poli-

49

The Politics of Regulatory

Reform

tics, Bureaucracy, and Economics (New York: St. Martin's Press, 1985), 203-04. 5. W. Clune and R. E. Lundquist, "What 'Implementation' Isn't: Toward a General Framework for Implementation Research," Wisconsin Law Review, 5 (1981), 1044-1116: 1064; see also K. Hawkins and J. Thomas, eds., Enforcing Regulation (Boston: Kluwer Nijhoff, 1984), 18. 6. Reinhard Bendix, Work and Authority in Industry (Berkeley: University of California Press, 1974), 443n. 7. Ibid., XX, 444, xxiv. 8. J.F. DiMento, Environmental Law and American Business: Dilemmas of Compliance (New York: Plenum Press, 1986), 161. 9. S. Kelman, "The Occupational Safety and Health Administration," 236-66. 10. K. Hawkins, Environment and Enforcement: Regulation and the Social Definition of Pollution (New York: Oxford University Press, 1984); R. Kagan and J. Scholz, "The 'Criminology of The Corporation' and Regulatory Enforcement Strategies," in Hawkins and Thomas, eds., Enforcing Regulation, 67-95. 11. K. Hawkins, Environment and Enforcement, 12, 77-78. 12. P. Selznick, Leadership in Administration (New York: Harper and Row, 1957), 17-18. 13. See, for example, G. Salamon and K. Thompson, eds., Control and Ideology in Organizations (Cambridge, Mass.: MIT Press, 1980). 14. J.Q. Wilson, "The Politics of Regulation," in Wilson, ed., The Politics of Regulation, 379. 15. S. Kelman, "The Occupational Safety and Health Administration," 250-51. 16. R.A. Katzman, Regulatory Bureaucracy; The Federal Trade Commission and Antitrust Policy (Cambridge, Mass.: ΜΓΓ Press, 1980); S. Weaver, Decision to Prosecute: Organization and Public Policy in the Antitrust Division (Cambridge, Mass.: MIT Press, 1977). 17. R.A. Katzman, Regulatory Bureaucracy; M. Derthick and P. Quirk, The Politics of Deregulation (Washington, D.C.: Brookings Institute, 1985). 18. P. Quirk, "Food And Drug Administration," in Wilson, ed., The Politics of Regulation, 191-235. 19. A. Marcus, "Environmental Protection Agency," in Wilson, ed., The Politics of Regulation, 267-303. 20. J.T. Dunlop, Industrial Relations Systems (New York: Henry Holt and Company, 1958), 7,16. 21. D.Q. Mills, "Labor Relations and Collective Bargaining in the Construction Industry," in J. Lange and D. Q. Mills, eds., The Construction Industry (Lexington, Mass.: Lexington Books, 1979), 59. 22. R.M. Jackson, The Formation ofCraß Labor Markets (New York: Academic Press, 1984), 239-41. 23. J.T. Dunlop, "Foreword," in Lange and Mills, eds., The Construction Industry, xi. 24. Two students of the construction industry, H.G. Foster and H. Northrup, make a similar point. "Many . . . union policies stem from their inability to organize . . . contractors by winning the votes of their employ-

50

The Politics of Regulatory

Reform

ees . . . In part this is attributable to the nature of the industry. Workers are often on one company's payroll for a relatively short period, and therefore are not easily solicited for the typical NLRB bargaining rights election that is found in most other industries." (H. Northrup and H. G. Foster, Open Shop Construction [Philadelphia: Industrial Research Unit, University of Pennsylvania, 1975], 191-92). 25. D.Q. Mills, "Construction," in G. Somers, ed., Collective Bargaining: Contemporary American Experience (Madison, Wis.: Industrial Relations Research Association Series, 1980), 89. 26. H.G. Foster, "Industrial Relations in Construction: 1970-1977," Industrial Relations, 17 (February 1978), 1 - 1 7 ; Northrup and Foster, Open Shop Construction, 99. 27. Northrup and Foster, Open Shop Construction, 11. 28. "Construction Week—Unions Get Message," Engineering News Record, February 19,1970, 3. 29. "NCA-Building Trades Work Rules Agreement," ibid., October 18, 1973, 16. 30. Ibid., 15-16. 31. "National Level Changes are Not Enough," ibid., 72. 32. S.F. Moore, Law as Process: An Anthropological Approach (London: Routledge and Kegan Paul, 1978), 55-56. 33. U.S., Congress, House, Committee on Education and Labor, "Occupational Safety and Health Act of 1970 (Oversight and Proposed Amendments)," 93rd Cong., 2nd sess., 1975, 282-83. 34. Ibid., 92nd Cong., 2nd sess., 1973, 615. 35. Bendix, Work and Authority in Industry, 443-44. 36. M.S. Estey, The Unions: Structure, Development, and Management (New York: Harcourt Brace Jovanovich, 1981), 17-37; J.Q. Wilson, Political Organizations (New York: Basic Books, 1973), 119-42. 37. D.C. Bok and J.T. Dunlop, Labor and the American Community (New York: Simon and Schuster, 1970), 394-96; J.D. Greenstone, Labor in American Politics (New York: Alfred A. Knopf, 1969), 69. 38. Kelman, "The Occupational Safety and Health Administration," 242. 39. U.S., Congress, House, Committee on Education and Labor, "Occupational Safety and Health Act of 1969: Hearings," 91st Cong., 1st sess., 1969, 1113; see also 1119. 40. Ibid., 1114, 1119. 41. U.S., Congress, Senate, Committee on Labor and Public Welfare, "Occupational Safety and Health Act, 1970: Hearings," 91st Cong., 1st and 2d sess., 1970, 671-72. 42. U.S., Congress, House, Committee on Education and Labor, "Occupational Safety and Health Act, 1970 (Oversight and Proposed Amendments)," 92nd Cong., 2nd sess., 1973, 615. 43. U.S., Congress, Senate, Committee on Labor and Public Welfare, "Occupational Safety and Health Act, 1970: Hearings," 91st Cong., 1st and 2nd sess., 1970, 677. 44. Ibid., "Federal Construction Safety," 1969, 91st Cong., 1st sess., 80-81.

51

The Politics of Regulatory

Reform

45. J.D. Greenstone, Labor in American Politics, 69; Bok and Dunlop, Labor and the American Community, 395. 46. For example, in accepting the construction industry's award for "Construction Man of the Year," Building Trades' President Robert Georgene pledged his organization's support to construction company officials, in combating no-growth advocates and in cutting through the governmental red-tape impeding environmentally risky construction projects such as nuclear power plants. ("Georgine Says Construction's Future is Labor's Prime Concern," Engineering News Record, February 26, 1976, 10.) 47. H.P. Wharton, Speech delivered to the First Safety Conference of the Building and Construction Trades Department, April 22, 1971, unpublished. 48. U.S., Congress, House, Committee on Education and Labor, "Construction Safety," 90th Cong., 1st and 2nd sess., 1967, 9 - 1 0 . 49. Unlike their industrial union counterparts, construction union officials maintained that federal regulation could help reduce their employers' accident-related costs. "There can be no argument regarding the fact that accidents are expensive and produce a substantial dollar drain. The total dollar loss in this industry is astronomical," Building Trades' President C.J. Haggerty testified. The "economic loss to employers who suffer these injuries represents . . . a horrendous figure." How will federal regulation help relieve employer "suffering?" By reducing employers' injury compensation costs, by reducing serious accidents which delay project completion dates, and by increasing the competitive status of companies through reduced costs, among other things, Haggerty explains. "We in the building trades believe that this legislation [the Construction Safety Act] would benefit not only the workers but also the contractors." (U.S. Congress, House, Committee on Education and Labor, "Construction Safety," 90th Cong., 1st and 2nd sess., 1967, 10.) 50. U.S., Congress, House, Committee on Education and Labor, "Construction Safety," 90th Cong., 1st and 2nd sess., 1967, 37. 51. The construction unions' emphasis on the costs and benefits of regulation for employers underscores a fundamental difference between construction and industrial unions. From the industrial unions' standpoint (at least before international competition became a serious threat to their employers) the costs of government safety regulation are generally viewed as an externality; for the most part there is no apparent cost to the union. By contrast, regulatory costs are not perceived in this way from the construction unions' standpoint primarily because of nonunion competition; those costs, they believe, may very well affect their employers' ability to compete and provide jobs. 52. "Hodgson Emphasizes Timing, Cooperation, Educational Aspects of Job Safety Effort," Bureau of National Affairs. Occupational Safety and Health Reporter, 1971, 512 (hereafter cited as BNA Reporter). 53. Ibid., 513. 54. "Statement by AFL-CIO Executive Council on Occupational Safety and Health," ibid., 1972, 904. 55. "AFL-CIO Unhappy with OSHA Pace in Enforcing Job SafetyHealth Act," ibid., 1971, 377.

52

The Politics of Regulatory

Reform

56. "Steelworkers Hear Hodgson Defense, Will Press for Vigorous OSHA Program," ibid., 1972, 4 6 2 - 6 3 . 57. Interview with George Taylor, Executive Secretary, AFL-CIO, in "Critic and Adviser," Job Safety and Health, May 1976, 34. 58. Occupational Hazards, February 1973, 48. 59. Ibid. 60. "Opposition Expressed by Unions to Steiger Bill in Oversight Hearings," BN A Reporter, 1972, 4 7 5 - 76. 61. U.S., Congress, House, Committee on Education and Labor, "Oversight Hearings," 1975, 275. 62. "Five Industries Targeted for Intensive Safety, Health Efforts," BNA Reporter, 1971, 59. 63. "AFL-CIO Plans to Boycott Labor Department Orientation," ibid., 213. 64. Ibid. 65. " O S H A Can Expect More Requests for Inspections, AFL-CIO Predicts," ibid., 1 8 1 - 8 2 . 66. Ibid., 181; "AFL-CIO Plans to Boycott Labor Department Orientation," 213. 67. "UAW Adopts Safety-Health Plan to Reduce Accidents in Foundries," ibid., 1972, 2 7 6 - 7 7 . 68. " N e w Emphasis for O S H A Inspections Announced; 5200 Firms to be Affected," ibid., 1975, 829. 69. For a detailed discussion of industrial unionism's influence on OSHA's regulatory enforcement style, see Joseph V. Rees, "Reforming The Workplace: A Study of Self-Regulation in Occupational Safety," P h . D Dissertation, 1986, University of California, Berkeley. 70. " O n e of the biggest problems with O S H A , " as an NCA official puts it, "is that most of the compliance officers they sent out to the construction site didn't know anything about construction." Building Trades' officials agree. In the words of one union official, " O n e of the big problems we've had is that we kept getting inspectors out on the construction site that didn't know much, if anything, about construction. This creates endless problems for everyone." Describing the problem with OSHA inspections in similar terms, another Building Trades' official goes on to explain its origins in terms of OSHA's administrative history: You've got to remember that OSHA was really starting from scratch. They had a group of Walsh Healy inspectors which numbered, as I recall, about nine for the whole nation. The people at the very top of the Labor Department, against the building trades advice, thought you could take anybody with a reasonable amount of education and intelligence and in a very short time—like a couple of weeks—turn them into a competent safety inspector. But it doesn't work that way. So they loaded up the ranks of compliance officers with a whole bunch of people who didn't know what the devil they were doing. And so what they did was take a cookbook approach in too many cases, not using good sense, and that's where you get citations for having the wrong kind of toilet seats, fire extinguishers six inches too high, and all that kind of damned nonsense. They approached these

53

The Politics of Regulatory

Reform

matters with no reason because they just didn't know what the devil they were doing. 71. Although reliable statistics comparing the relative frequency of inspections among union and nonunion contractors are not available, a top OSHA official confirms the point. Because unionized workers are kept better informed of their rights under the O S H Act, particularly their right to file complaints, he explains, " O u r system does end up focusing a lot more attention on union employers. There's no question about it." 72. AFL-CIO, Building and Construction Trades Department, AFLCIO, 59th Biannual Convention Proceedings, "Occupational Safety and Health," November 30-December 2 , 1 9 7 7 ; ibid., AFL-CIO: Safety and Health Manual for Building and Construction Trades Councils, no date, 69. 73. AFL-CIO Safety and Health Manual, 3. 74. " O n e thing I insisted o n , " recalls the NCA's chief representative to the training program (who was also a corporate safety manager with an NCA member company) "is that we had to get into the utilization of labormanagement committees." "You s e e , " he explains, "back in World War Two when I was in the steel industry we formed labor-management committees to deal with the war effort—a rationing committee, a salvage committee, a safety committee. That experience made me a personal believer in the idea that if you're asking people to get involved in a program, that you've got to give them a voice in that program. So the concept of a selfinspection program based on the joint committee was already present at the curriculum development stage." Soon afterward the idea of redefining OSHA's role on the job site, and shifting major regulatory responsibilities to the labor-management safety committee, was suggested by another NCA representative participating in the program (also a corporate safety manager with an NCA member company). "I suggested what a nice idea it would be if we could develop some kind of self-inspection program and let OSHA go about its business where they could be more useful." 75. As the classic statement of Safety Management's basic principles puts it, "The labor-management struggle should not be perpetuated by pitting supervisors against employees to explain why accidents happen." (T.J. Cresswell and W.J. Pope, "A New Approach to Safety Programs Management," in D. Peterson and J. Goodale, eds., Readings in Industrial Accident Prevention [New York: McGraw Hill, 1980], 1 1 2 - 1 3 . ) 76. J.W. Jeffries, "Unsafe Acts vs. Unsafe Conditions," in Peterson and Goodale, eds., Readings in Industrial Accident Prevention, 24. 77. In the context of the overall trend towards increased labormanagement cooperation in industrial construction described above, it is not difficult to see why safety engineers advocated a regulatory reform based on labor-management cooperation. In the words of an NCA representative, "We began to realize that no one else could do the job except the people engaged in the work itself, that it had to be a joint effort in safety between the employees and employers, and it was not a thing that could be imposed by O S H A . " 78. Otto Hintze, "Calvinism and Raison d'Etat In Early Seventeenth Century Brandenburg," in Felix Gilbert, ed., The Historical Essays of Otto Hintze (New York: Oxford University Press, 1975), 94.

54

The Politics of Regulatory

Reform

79. "Based upon our substantial experience with state and Federal OSHA programs we have found that an OSHA inspection results in a decrease in productivity of approximately 5 % , " the company's safety manager reported. He notes that on this project, which had 4,500 employees at peak, this meant that each day of OSHA inspection represented a loss of approximately 1800 hours. "We were concerned that OSHA was focusing a disproportionate share of its compliance enforcement resources on the large construction projects . . . without any determination that these larger sites harbored a greater percentage of safety hazards." 80. California Department of Industrial Relations: Division of Occupational Safety and Health (CAL/OSHA), California's First Six Voluntary Self-Inspection Programs in the Construction Industry, 1983, 43. 81. AFL-CIO, Building and Construction Trades Department, Convention Proceedings, 1977. 82. "To be perfectly honest with you, I think it was a people thing rather than a policy thing," a FED/OSHA regional administrator close to the situation explains. "I think Eula Bingham came to trust the people, state, federal and union that would be involved in the program. So she figured, 'They're not going to compromise me on this program. So I think I'll go ahead with it.' That was really what was behind her decision. She just decided that the key parties out here were not ones to put her at risk. And once she decided that, she decided, O k a y , I'll risk i t . ' " 83. Occupational Hazards, July 1981. 84. S. Kelman, "The Occupational Safety and Health Administration," 260.

_3 The Law and Enterprise Responsibility

Examining the origins of the Cooperative Compliance Program (CCP) is important because they are unexpected from the prevailing view of regulatory politics at OSHA and also because an obvious yet indispensable step in a policy's success is its creation in the first place. It is one thing, however, to explain what makes regulatory reform happen and quite another to explain the subsequent success of that reform. Now we turn to the latter issue. As has been mentioned, our discussion uses a before-and-after model of analysis. If we are to understand what real difference the CCP made, how it actually influenced the operation of job site safety programs, and most important, why it was a success, we must first understand how these programs operated prior to the CCP. To establish our baseline of comparison, the next two chapters detail the administrative development of two corporate safety programs prior to their participation in the CCP. As noted earlier, the company I call Builder Inc. participated in one CCP project, while the company I refer to as Constructor Ltd. participated in three. Quite apart from the CCP's success, Builder Inc. and Constructor Ltd.'s administrative development is worth examining for two additional reasons: to explore the questions of regulatory impact and of the interaction between public and private regulation. We

56

The Law and Enterprise

Responsibility

have seen that the social science literature has devoted little empirical study to how government regulation influences the day-today conduct of regulated firms. The interaction between public and private regulation is also a neglected area of research on regulation, as we saw in chapter 1. As subsequent discussion will reveal, if we are to understand how government regulation operates in society, and what the actual regulatory system looks like from the standpoint of regulated firms, it is critically important to examine the interaction among regulatory spheres—public and private—as a realm of reciprocal influence and mutual dependence. According to Builder Inc. and Constructor Ltd. officials, the OSH Act's passage in 1970 represents a major turning point in the development of their safety programs. As a Builder Inc. safety department official puts it, "OSHA became the motivating factor in our safety program." Our discussion of how OSHA "motivated" their safety programs is divided into four parts. After a brief description of the origins of Builder Inc. and Constructor Ltd.'s safety programs, we discuss OSHA's influence as a regime of authoritative rules. From this perspective we will see that OSHA has had a deep and lasting influence on Builder Inc. and Constructor Ltd.'s safety programs, largely because OSHA standards provide the safety departments with a significant source of legitimation that strengthens the safety engineer's basis of authority out on the job site. Next we explore OSHA's influence as an enforcement agency or regulatory bureaucracy. As will become clear, OSHA's influence as an enforcement agency, though significant at the outset, soon declined for various reasons, particularly because of procedural/ legalistic fortifications erected by Constructor Ltd. and Builder Inc. as a defense against OSHA's enforcement efforts. Finally, we discuss how the threat OSHA's enforcement bureaucracy once posed has been replaced by a "threat" of a different sort—workers' compensation costs. The workers' compensation system's emergence as a major regulatory influence can be traced to the passage of the OSH Act itself.

Origins

By all accounts Builder Inc. and Constructor Ltd.'s safety programs are among the very best in the construction industry; they are

57

The Law and Enterprise

Responsibility

prime examples of "responsible" enterprises. They are also among the largest and oldest construction firms in the nation, both being established before 1900, although neither company had a safety department until the 1950s. Builder Inc.'s safety department, for example, was created in 1953 as a direct result of client pressures arising from the death of several construction workers on a Builder Inc. project. "The client was super critical of Builder Inc. to the point that they told the company that they simply would not do another job with them until they had a professional safety program," a former safety department official recalls. "So, in 1953, the safety program was started, and a safety engineer was hired . . . At the time management certainly wasn't sold on the need for a safety department, other than having to have one because our client demanded it; as much as anything, it was a necessary evil to them." The origins of Constructor Ltd.'s safety program can also be traced to the early 1950s. But it was not until 1955 that a one-man safety department was created. The first person to hold that position recalls the safety department's creation in these terms: I was an assistant labor-relations coordinator with Constructor Ltd. at the time. One day, in 1955, I was at a meeting with my boss. We were talking about the high number of accidents on our jobs and how it was hurting our reputation for running a good clean job. My boss turned to me and said, "You're it. You're going to handle safety." And I said, "I can't even spell the word safety." And he said, "You can learn." So I went back to the National Safety Council school in Chicago for a couple of weeks and started to learn about safety. The safety program just developed from there. Until the mid-1960s, the safety departments' essential task was one of promoting an awareness and concern for occupational safety (through posters, banners, safety slogans, and so forth) on Builder Inc. and Constructor Ltd. construction projects. Constructor Ltd.'s first corporate safety manager describes one of the more colorful methods he used, one that is emblematic of the safety department's early overall approach. "I gave glass eyes to all my safety men," he recalls. "And they'd hold them and flip them at the safety meetings. And the guys would say, 'What's that?' And the safety man would say, 'That's what you're going to be using if

58

The Law and Enterprise Responsibility

you don't wear eye protection.' " Today, safety department officials liken such an approach to that of a "carnival huckster," as one Constructor Ltd. safety department official puts it. It was an approach to occupational safety "absolutely void of any technical ability or background," as a Builder Inc. safety department official recalls. Nonetheless, these efforts represent an important first step in the development of safety programs at Builder Inc. and Constructor Ltd. Still, it was only a first step. Over the next twenty years safety department officials promoted an array of administrative developments to build a much more sustained and effective commitment to occupational safety. OSHA's influence was all-important in this process. OS H A as an Organizational

Mandate

"After OSHA's creation," says a Constructor Ltd. safety department official, "our company was committed to ensuring compliance." In other words, the new public mandate, the OSH Act, acquired the status of an organizational mandate, with both companies adopting a policy of "voluntary compliance" toward the new regulatory regime. "We immediately got into a voluntary compliance mode mandated by our President," says a Builder Inc. Safety Department official. Of course we [the Safety Department] recommended that he mandate that." As the last comment suggests, safety department officials had a role in determining Builder Inc. and Constructor Ltd.'s response to OSHA. In fact, the safety departments played a central role. By underscoring the threatening possibility posed by OSHA—fines of up to $10,000 for each repeat or willful violation, imprisonment for up to six months for each willful violation, maximum penalties doubled for a second conviction, and so on—safety department officials at both companies persuaded upper management to take OSHA seriously and to require a full-scale organizational effort to comply with OSHA regulations. "We told senior management what the penalties would be if we chose to run a sloppy operation," a Builder Inc. safety department official recalls. "We told them that OSHA could come down very hard on companies that chose to fight them." In view of such a threat, he continues, "I did impress on them that it would be a helluva lot better to comply voluntarily,

59

The Law and Enterprise

Responsibility

to get along with them and run a good show. That way we wouldn't have anything to worry about . . . We were all so damn fearful of that law being implemented against our company that we were great for obedience and compliance." Constructor Ltd.'s safety department portrayed the specter posed by OSHA in much the same terms, as an official recalls. "We really pushed for compliance with OSHA. We explained to management that the long term potential for this nationwide agency, with their tally sheets and their computers, was one that posed just a horrendous threat to the Company." As a Constructor Ltd. safety department official remembers: We explained the enforcement provisions and the penalty provisions with their $10,000 fines and criminal sanctions for repeat and willful violations, and that if we were to generate an adverse history with the agency [thereby increasing the chances for repeat and willful violations] that could really create an untenable situation for the company. We also pointed out that most of the standards adopted by OSHA were consensus standards; and that although we didn't agree with all of them, that this wasn't something that was revolutionary. So we made the recommendation to management that we take a very affirmative position with regard to OSHA and that we do everything that was stipulated, and they accepted our recommendation. With the benefit of hindsight it is evident that safety department officials at both companies, knowingly or not, exaggerated the threat posed by OSHA. Indeed, as we saw in chapter 2, OSHA's first administrative leaders downplayed the punitive enforcement of standards; rather, less stringent and rule-bound methods of regulatory control—persuasion, education, and voluntary compliance—were emphasized. As we will later see, though, the image of OSHA depicted by safety department officials and transmitted to the ranks of construction site supervisors—OSHA as a "horrendous threat"—served an important purpose: amplifying the threat posed by OSHA also amplified the safety department's importance within the company. To carry out their policy of voluntary compliance, Constructor Ltd. and Builder Inc. began a systematic effort to comply with the Act within months after OSHA's creation. More field safety personnel were hired. 1 Safety department officials at each company

60

The Law and Enterprise Responsibility

also developed a training course and traveled to job sites throughout the country to instruct construction site supervisors about the new Act. At Constructor Ltd., for instance, about 2500 supervisors attended the two hour training sessions conducted by safety department personnel. "We were literally going seven days a week," recalls a Constructor Ltd. safety department official. "And we hit the first 2000 of our supervisors in about two weeks." The message safety department officials brought to these construction site supervisors was straightforward: A federal mandate, the OSH Act, had created an array of "obligations," "duties," and "requirements" which company personnel must obey. The keynote was compliance. Constructor Ltd.'s training manual, Company Training Materials for Supervisors Regarding OSHA, conveys the essential tone of the training. The manual's overriding theme is "obligation." For example, a major "obligation" created by the OSH Act is to comply with the specific standards established by OSHA . . . It is essential that each man know the particular standards relevant to his own job and to comply with them . . . At the end of this text you will find a copy of the Federal Registry [szc] which contains the health and safety standards that apply to construction work. Study these standards until you know them well. (Emphasis in original.) In addition, to ensure compliance with these obligations and others, construction site supervisors were notified that the company itself, through the safety department, would enforce the OSH Act's requirements. So a close relationship was established from the outset between the OSH Act and the safety departments' role in Builder Inc. and Constructor Ltd. 2 It is crucial to highlight an important corollary to Builder Inc. and Constructor Ltd.'s "voluntary compliance mode," particularly in light of later developments. Put simply, there was a policy of full cooperation with OSHA inspectors. Addressing construction site supervisors, Constructor Ltd.'s OSHA training manual emphasizes the importance of a cooperative spirit in these terms: When a compliance officer arrives on your job site, it is extremely important that he be treated with proper r e s p e c t . . . It would be very easy for any of us to create an adversary relationship with one of these inspectors. It is a Company policy

61

The Law and Enterprise Responsibility

that we will cooperate fully with this compliance officer and do everything within reason to make his job easier. In spite of the specific problems that may arise in any given situation, a cooperative attitude and honest concern for the compliance officer's problems, will in the long run be in the Company's interests. The crucial point here is that the first corporate message sent to construction site supervisors after OSHA's passage stressed compliance and cooperation. More precisely, occupational safety is a mandate, a public and corporate mandate; therefore, comply with OSHA requirements and cooperate fully with the regulatory bureaucracy established to enforce those requirements. We should also note that Constructor Ltd. and Builder Inc.'s training programs, precipitated by the sudden threat of steep fines and jail sentences, were a hurried reaction to OSHA's passage. Their next step was a product of more careful deliberation, however. Both safety departments thoroughly revised their corporate safety manuals, and once again the emphasis on compliance and cooperation is paramount. OSHA's influence on the revised safety manuals is evident throughout. Indeed, OSHA was the model. "The first Manual we put out after OSHA was passed reeks of compliance and obedience," says a Builder's Inc. safety department official. A close look at the 1974 edition of Constructor Ltd.'s Safety Manual shows the extent of OSHA's influence. The manual's opening lines announce the new polestar of its safety program in these terms: [S]ince the passage of the Occupational Safety and Health Act of 1970 (OSHA), which has expanded the scope of corporate and individual liabilities, our commitment has a new dimension for measurement. (My emphasis.) To illustrate this point, consider the first "objective" of the safety program listed by the manual: "provide guidelines for implementing a safety program on each project which ensures compliance with statutory requirements." It is also worth stressing that most of the safety manual's nine sections and 300 pages are devoted, directly or indirectly, to meeting this objective of voluntary compliance with the OSH Act. The manual's longest section (49 pages) is entitled "Major Provisions and Administrative Procedures of

62

The Law and Enterprise Responsibility

OSHA." Likewise, the section on "Reporting, Investigating, and Recordkeeping Requirements" is in essence an elaboration of OSHA's recordkeeping requirements. So also with Constructor Ltd.'s safety education requirements. The pre-OSHA Constructor Ltd. safety manual devoted one sentence to safety education, while the post-OSHA manual contains 17 pages, much of which recites section number by section number the safety education requirements created by OSHA. Numerous similar examples from the revised and enlarged safety manuals could be cited, but the essential point remains the same: OSHA's creation conferred significant "regulatory endowments" 3 on safety department officials at Builder Inc. and Constructor Ltd. That is to say, OSHA's creation also gave rise to an array of ideas, symbols, and resources that safety department officials could take advantage of in various ways. As just noted, one example is the threat OSHA posed, which safety department officials translated and apparently amplified into a "horrendous threat" as a way of persuading management to endorse a policy of compliance and cooperation towards the new agency. Similarly, safety department officials made extensive use of the models OSHA transmitted, particularly its norms and procedures, in reorganizing their in-house regulatory systems. More to the point, OSHA provided the authoritative model of norms and procedures. As will become clear in the course of our discussion, the importance of such developments cannot be overstressed, for they established an intimate association between the two safety programs—public and private—which conditioned the operation of each in significant ways. Finally, it is worth observing that Constructor Ltd.'s Corporate Safety Procedures Manual reaffirms an important corollary of this intimate association between governmental and indigenous regulation—a policy of full cooperation with OSHA inspectors. "It would be easy," the manual states, "to create an adverse relationship with a compliance officer which could jeopardize the Company's relationship with OSHA at the area, regional, and national levels." Therefore, the manual continues, "it is extremely important that he [the OSHA compliance officer] be treated with the proper respect by all Company employees." The manual concludes with this directive, in boldface type, and set off from the rest of the text:

63

The

Law

and

Enterprise

Responsibility

I T IS A C O M P A N Y P O L I C Y T H A T A L L P E R S O N N E L W I L L

COOPER-

A T E F U L L Y W I T H T H E C O M P L I A N C E O F F I C E R A N D W I L L DO E V E R Y T H I N G W I T H I N R E A S O N TO M A K E H I S J O B E A S I E R .

O S H A

AND THE SAFETY D E P A R T M E N T S '

BASIS

OF

AUTHORITY

To understand perhaps the most important way OSHA has affected Builder Inc. and Constructor Ltd.'s safety programs, we must consider another major regulatory endowment of OSHA's creation. The passage of the OSH Act transformed the safety departments' role in the two companies to one of monitoring compliance with OSHA." This bolstered their organizational status in at least two ways. First of all, it increased the safety departments' visibility. "Safety was getting one helluva lot of attention after OSHA," a Builder Inc. safety department official describes. "Our clients were concerned about their image when we had fatalities on our job and OSHA was out there. We had a lot of publicity which they didn't like. There was a lot of concern. And that gave the safety department more stroke than it ever had." 5 The safety departments gained something more important than visibility as a result of OSHA's creation. According to department officials, they also acquired a new basis of authority—the authority of law. OSHA gave the safety department a "mandate," in the words of a Constructor Ltd. safety department official: Just before OSHA's passage accident prevention was like mom and apple pie. The perception was that there was good benefits from preventing accidents—benefits within the labor force, our relations with labor, our relations with our client, our relations with the community at large. It was a good thing to do. But it was not perceived as a mandate. OSHA's passage made accident prevention a mandate. It highlighted the fact that safety is a bona fide management function. Before safety was the safety man's job. Safety was not perceived to be a direct management and supervisory responsibility. I'm talking about the people out in the field, down at the project level. They didn't really perceive safety to be a direct management and supervisory responsibility. But you have to understand that we had the commitment of top management

64

The Law and Enterprise Responsibility

before OSHA. We had management interest and management support long before OSHA. They funded a safety department; we were getting good results; and they recognized there was substantial benefits to accident prevention. But with OSHA's passage the observance of the safety and health requirements became mandatory. There was a company policy that we will comply. It was the minimum, the law of the land. It was something that was not negotiable. Making a similar point in somewhat different terms, a Builder Inc. safety department official characterizes the significance of OSHA's creation in terms of giving the safety department more "credibility:" Before OSHA's passage we didn't have a decent set of guidelines to direct us. OSHA's passage gave us real guidelines. Everybody in the Company realized that they now had rules to contend with; and they sought us for interpretation of those rules. That gave us a higher degree of credibility because now we had something to sell. (My emphasis.) The safety departments' new basis of authority—carrying out "the law of the land"—extended to Constructor Ltd. and Builder Inc.'s field organization. "Before OSHA," a Builder Inc. safety department official recalls, "if you would go up and tell someone in authority in a given area to put up guard rails they'd simply say, 'Where does it say I have to? There's no law that says I have to; there's no company standard.' And there was nothing you could really do. You couldn't really hold him to it." "OSHA gave the safety person very distinct rules to use," the official explains. "He went out and said, 'You must tie off above ten feet because it's simply a rule. It's no longer my idea. It's what the government requires.' That made a significant difference.6 To understand what real difference all this actually made, it is necessary to appreciate that safety engineers exercised a new kind of authority in their role of ensuring compliance with OSHA. "Adviser" is the term most frequently used to describe the safety engineer's role on the construction site. In the imprecise but nonetheless useful terminology of classical management theory, the safety man performs a "staff" function; he does not exercise "line" authority. In a sense this situation did not change after OSHA; for the safety engineer remained an "adviser," providing "staff sup-

65

The Law and Enterprise

Responsibility

port" to construction site supervisors. Yet, it is central to recognize that OSHA's passage did make a significant difference simply because the nature of the safety engineer's advice changed—it was about OSHA. A definition of authority once offered by the German historian Mommsen helps illuminate the point. Authority, he said, is "more than advice and less than a command, an advice which one may not safely ignore." 7 Given the "horrendous threat" OSHA seemed to pose, and given upper management's commitment to ensuring voluntary compliance, it thus became less safe for job site supervisors to ignore the safety engineer's advice because, now, it was about OSHA. As a Constructor Ltd. safety department official puts it, "OSHA gave the safety man more stature": That's the whole ball of wax right there. The book [OSHA regulations] was their club. That's the key change. It put the safety man on more of a par with job site management. Before OSHA the safety men were always kind of like a stepson on the construction site. They were afraid of supervision. No matter what we tried to do from headquarters they had to live with the superintendent all the time. While we were back in the headquarters they were off in the boon docks. They had to live with supervision so they looked the other way. But with the passage of OSHA supervision knew they had to listen more to the safety man. They knew if they didn't listen, they'd have the wrath of the unions on them and they'd have the government people on them. So they had to get off the pot. "What it really amounts to," he adds, "is that OSHA gave the safety man a little bit more balls." A Builder Inc. safety department official describes the difference OSHA made in similar terms: OSHA gave the safety man more stroke than he ever had. I think it was just natural that if a safety man on the job went up to the project superintendent and said, "We've got a problem in this area" (say, welding on hot lines) that project superintendent certainly wasn't going to take any chances and have a problem that would bring OSHA onto the job. It just gives the safety supervisor on the job more clout. O S H A as an Enforcement

Agency

As we have seen, OSHA's threatening presence dominated Builder Inc. and Constructor Ltd.'s regulatory environment and suffused their systems of internal regulation with the color of law. In con-

66

The Law and Enterprise

Responsibility

sequence, OSHA rules and regulations endowed the safety departments with a new authoritative model as well as a new source of legitimation, both of which combined to strengthen the safety engineer's basis of authority on the job site. Today, by contrast, the regulatory environment has a very different appearance. When safety department officials now survey the regulatory landscape, OSHA's presence no longer dominates. As subsequent discussion will reveal, at least three related reasons help explain why. First, both companies developed defensive strategies that sharply reduced the influence OSHA once exerted through the threat of serious sanctions. Second, the compelling influence OSHA once exercised has been superseded by a "threat" of a different sort, the costs associated with the workers' compensation system. Third, a new source of legitimation emerged in addition to OSHA—the professional safety movement. Each will be examined in turn in the remainder of this chapter as well as the next.

T w o F A C E S OF O S H A ' s

AUTHORITY

While the possibility of steep fines and jail sentences once seemed to pose a "horrendous threat," all that has changed, according to safety department officials. Far from dominating Builder Inc. and Constructor Ltd.'s internal systems of regulation, in the words of a Builder Inc. safety department official, "OSHA has become nothing more than a nuisance, like a bothersome gnat . . . The OSHA aspect of the safety program has pretty well died a slow death, both at the corporate level and the field." These remarks, which epitomize the decline of OSHA's influence as described by safety department officials, are to an important degree true, but only so long as we view OSHA as an enforcement agency—that is, a system of commands backed by the threat of sanctions. From this perspective, there is strong evidence that OSHA's previously forceful presence in Builder Inc. and Constructor Ltd.'s regulatory environment has so diminished that it is scarcely an exaggeration to describe OSHA as little more than a nuisance. However, the case for OSHA's decline can certainly be oversold, particularly if one distinguishes between two aspects of OSHA's authority: OSHA as an enforcement agency and OSHA as a regime of regulatory standards. As the following discussion shows, although OSHA's influ-

67

The Law and Enterprise

Responsibility

enee as an enforcement agency or regulatory bureaucracy has declined dramatically, its influence as a system of authoritative rules has not. Each development is examined in turn. As we saw in chapter 2, OSHA's most influential constituency, the industrial unions, constantly pressed the agency to be more punitive and legalistic, which is quite understandable given the essentially adversary orientation of industrial unionism's regulatory ideology. In consequence of this and other factors (as we will see in chapter 6), OSHA inspectors did come to resemble legalistic cop-like enforcers. Indeed, OSHA has developed a reputation for being more legalistic than most regulatory agencies. To further set the stage for our discussion, it is also necessary to appreciate the virtues and vices of OSHA's legalistic enforcement strategy. With respect to the former, for the moment it is sufficient to note that regulatory agencies need powerful tools of legal coercion to deter evasion of regulatory requirements. On the other hand, these tools can easily be used for "legalistic, indiscriminate, and unresponsive enforcement," according to analysts, which may stimulate resentment, opposition, and legalistic counterattack by regulated firms, thereby undermining agency-industry cooperation. 8 As a case in point, consider Builder Inc. and Constructor Ltd.'s administrative experience. There is no doubt, according to a Builder Inc. official, that "one of the major problems with OSHA was that they would come out and apply these ridiculous standards . . . A very common expression to characterize these violations cited by OSHA is 'chickenshit' A lot of these standards make sense and work fine for general industry, in a set location, but simply can't work where your work place changes everyday." In addition, we noted in the preceding chapter that many inspectors lacked the construction related expertise required to carry out inspections of construction sites in a competent and effective way. In consequence, a Constructor Ltd. official observes, "I think that it is just a demoralizing thing to have a goddamn government inspector out there telling you how to run your job when we know a helluva lot more than they do." It was regulatory experiences such as these, according to safety department officials, that led Builder Inc. and Constructor Ltd. to abandon their policy of full cooperation with OSHA inspectors and to adopt a much more defensive and adversarial approach. Builder

68

The Law and Enterprise Responsibility

Inc.'s safety department, for example, promulgated a set of guidelines, a kind of defense policy, entitled, "Policies and Procedures for the Occupational Safety and Health Act." The following passage states their rationale. Inspections are intended to serve the overall remedial purpose of the Act, which is to make the employee's work place as safe as is reasonably possible. OSHA attempts to accomplish this overall purpose during inspections, by observing and citing violations of OSHA safety and health standards thereby causing the employee's work environment to be made safer, and by assessing penalties and recording violations thereby encouraging employers not to violate safety and health standards. Builder Inc. has no quarrel with the overall remedial objective of the Act. Indeed, Builder Inc. maintains a staff of the highest trained safety professionals to develop and implement safety programs that are as effective as any in our industry. Builder Inc. is committed to the remedial objectives of the Act and pursues these objectives in the highest professional manner. Builder Inc. believes the portion of the Act providing for penalties does little to further the overall remedial purpose. Therefore, Builder Inc.'s objective is to assert its legal rights under the Act in order to limit the scope of all OSHA inspections and exposure to penalties and record of citations. (My emphasis.) The new guidelines represent a turning point in Builder Inc.'s safety program. Instead of cooperation, Builder Inc. adopted an adversarial and defensive posture towards OSHA's enforcement bureaucracy. Whenever an OSHA inspector came to the job site company personnel were now instructed to assume an "inspection mode," which meant that all dealings with the OSHA inspector were conducted in anticipation of an appeal. "Because of our experience of dealing with OSHA," a Builder Inc. official explains, "we sat down and figured out what is the best way to start an inspection from the first moment the inspector comes to the project site, to begin to perfect our ability to defend ourselves. Everything was done in anticipation of going through the contest procedure." For this purpose Builder Inc. and Constructor Ltd. began to employ various strategies to frustrate OSHA's enforcement efforts before, during, and after inspections. Builder Inc., for example, made every effort to prevent the OSHA inspector from gaining entry to the job site, and, failing that, to limit the scope of the inspection as much as possible. Accordingly, job site supervisors received

69

The Law and Enterprise

Responsibility

detailed instructions on how to assert the company's legal rights under the OSH Act to the maximum extent possible. The basic tone of these directives is defensive, adversarial, and legalistic. (See the last section of this chapter for further examples.) Needless to say, there is little room for cooperation between company officials and OSHA inspectors under these circumstances. Indeed, as the following directives indicate, cooperation should be avoided because it may increase the company's vulnerability to citations. In general, do not talk about violations or safety conditions on the site. In nine out of ten instances, it is the statements made by employer representative, trying to be cooperative that result in a citation being issued and affirmed by the court. (My emphasis) Do not demonstrate any equipment or answer any questions about equipment or operations. The Company is not obligated to demonstrate equipment or explain any construction operations. Do not correct any mistakes made by the compliance officer in identifying locations on the site, type or identity of equipment, or nature of operations. Builder Inc.'s guidelines for responding to an OSHA inspection are almost identical. It is also worth noting that whatever cooperation may have existed after the inspection also eroded. As an illustration, consider Builder Inc.'s approach to OSHA's "informal conference." When an employer receives a citation he or she may request a meeting to discuss the matter with, say, an OSHA Regional Administrator. A major purpose of the informal conference is to provide a relatively informal opportunity for OSHA and the employer to resolve disagreements before more formal contest procedures are initiated. If the OSHA official finds that the citation was issued improperly, for instance, then it may be changed or dismissed. The point, in short, is to provide a forum where disputes can be resolved in a more informal and cooperative spirit than otherwise allowed by the formal appeals process. Builder Inc.'s in-house counsel describes the company's experience with informal conferences in these terms: We initially decided to go to informal conferences to attempt to persuade the area director or regional director, whoever was involved, that the compliance officer was wrong and that we

70

The Law and Enterprise Responsibility

were right; and that they were citing us for something that was not, in fact, a violation. But we never got anywhere doing that. They'd stick to their position like a bulldog. I'm not sure why, but they did. We'd always be told that they were right and we were wrong. So we adopted a policy of either not going to the informal conference, or going to it not with the goal of persuading the agency we were right, but to find weaknesses in their case, and using whatever we could learn from that conference in the contest procedure. Basically, the informal conference became part of our litigation strategy. It gave us a chance to see what the compliance officer really knew. (My emphasis.) In this way, the purpose of the informal conference was transformed from a cooperative problem-solving opportunity to an adjunct of the adversary process. Defensive strategies such as these have to a great extent insulated Builder Inc. and Constructor Ltd. from the seemingly "horrendous threat" OSHA once posed. At Builder Inc., for example, about 75 percent of the citations issued by OSHA have been dismissed on appeal, according to the company's in-house counsel. Constructor Ltd.'s experience provides a more detailed picture. From July 1, 1971 to December 31, 1983, Constructor Ltd. job sites were subjected to 852 inspections. 9 As a result of these inspections 1,226 violations were cited, 180 serious and 1,086 non-serious. The total of the penalties assessed, before appeals, was $100,613. But the actual amount paid, after appeals, was less than half the amount originally assessed, or $49,132. To be more specific, over this period the average penalty for each OSHA inspection was $57.67, and the average penalty for each citation was $38.80. It is also worth noting that during this time Constructor Ltd. never received a citation for repeat or willful violation, nor was anyone imprisoned. As a result, of course, the seemingly "horrendous threat" OSHA once posed, with $10,000 fines and six month jail terms, become about as threatening as a "bothersome gnat." As a system of commands backed by the threat of sanctions, the authority of OSHA's regulatory regime no longer represented a significant motivating factor in Builder Inc. and Constructor Ltd.'s safety programs. Although OSHA's influence as an enforcement agency declined dramatically, its influence as a system of authoritative rules

71

The Law and Enterprise

Responsibility

did not. That is so largely because both safety programs have internalized OSHA's regime of regulatory standards, as an examination of Constructor Ltd. and Builder Inc.'s safety manuals and other statements of corporate policy reveals. Builder Inc., for example, gaves each craftsperson on their construction jobsites a booklet entitled, "Safety Practices: Field Construction." The booklet's first page contains a letter from Builder Inc.'s President and Chief Executive Officer which states: It is the intent of Builder Inc. to provide each of our employees, a safe and healthful working environment. For this reason, Builder Inc. has accepted the responsibility of being in voluntary compliance with all federal, state, and client safety/health rules, regulations, standards. The safety rules in this book meet or exceed the standard set forth in the Occupational Safety and Health Act of 1970. Addressed to all craftspeople on Builder Inc. projects, this pasage and others like it stress the importance of taking OSHA regulaions seriously. Other statements of corporate policy addressed to job site supervisors—Project Manager, Project Superintendent, Assistant Project Superintendent, Area Superintendent, and Craft Superintendents—also stress their obligation to comply with OSHA regulations. 10 As an example, the corporate safety manual states that each area superintendent has "responsibility for the safety performance in his assigned area," a responsibility that specifically includes "enforcing compliance with agency requirements"— OSHA regulations. OSHA regulations also occupy a place of central importance in Construction Ltd.'s safety program. As the "Executive Summary" to Constructor Ltd.'s 1983 safety manual states in no uncertain terms, OSHA "regulations and administrative procedures must be fully complied with by all company projects." (Emphasis in original.) To summarize, the development of Builder Inc. and Constructor Ltd.'s safety programs exhibits a fundamental ambivalence towards OSHA's regulatory regime. As a source of regulatory endowments, both safety departments welcomed OSHA's presence, primarily because the agency provided them with a significant source of legitimation and strengthened the job site safety engineer's basis of authority on the construction site. As an enforcement bureaucracy, on the other hand, the safety department's

72

The Law and Enterprise Responsibility

initially cooperative posture soon became defensive, adversarial and legalistic. And when we add to this the negligible fines actually attached to OSHA citations, it is not difficult to see why the threat of OSHA sanctions no longer represents a significant motivating influence on Builder Inc. and Constructor Ltd.'s safety programs. In more general terms, the interaction between government and indigenous regulation conditions the operation of each in important ways. On one side there is OSHA, transmitting a complex message composed of many elements—threats, models, stigma, legitimacy, and so forth. On the other side there is the company with its reception process, such as safety department officials who extract regulatory endowments from these messages and use them as resources to advance their particular administrative needs and interests in various ways. The last point is critically important because it underscores a basic theme of this study. That is, OSHA's actual impact on regulated firms can be powerfully affected by the dynamics of the indigenous regulatory system. It is a theme vividly illustrated by Builder Inc. and Constructor Ltd.'s administrative experience. As we have seen, an understanding of their indigenous regulatory systems is essential to understanding the true nature of OSHA's influence on these firms. OSHA and the Reform Compensation System

of the

Workers'

Let us now turn to the third major way in which the OSH Act's passage influenced the development of Builder Inc. and Constructor Ltd.'s safety programs. The threat OSHA's regulatory bureaucracy once posed was replaced by a "threat" of a different sort—the costs associated with the workers' compensation system. Indeed, these costs became the motivating material influence in the companies' regulatory environment. Why the change? Though the causes are complex, two factors stand out: the OSH Act's passage and the professional safety movement. Because the OSH Act's role in this development has been generally overlooked, in the remainder of this chapter we look in some detail at this factor to see how the emergence of the workers' compensation system as a major regulatory influence is closely related to the passage of the OSH Act

73

The Law and Enterprise

Responsibility

itself. Chapter four will discuss the professional safety movement's role in this development. For the moment note that if we are to understand the workers' compensation system's emergence as a major regulatory influence, we must understand how the public (the OSH Act and Workers' Compensation) and private (the professional safety movement) regulatory spheres interact, for each has influenced the operation of the other in significant ways. Workers' compensation laws provide cash benefits, medical care, and rehabilitation services to workers who are disabled from work-related accidents or occupational disease, and death benefits to the survivors of workers killed on the job. Today, there is a workers' compensation act for each of the fifty states. Workers' compensation laws evolved as the American economy became more industrial and less agricultural. Until the beginning of this century the injured worker's only recourse was to sue his employer, claiming liability based on negligence. The employer's legal defenses were so powerful, however, that compensation through the courts was unlikely, uncertain, and often inadequate. In response to these and other deficiencies, the workers' compensation system emerged as an alternative. Accompanying this development was a significant change in legal principle—liability without fault. That is to say, the costs of a worker's injuries should be allocated to the employer, not because of any presumption that he was personally to blame, but because industrial employment is inherently hazardous, and resulting economic losses should be considered costs of production. Thus, for most of its seventy year history the workers' compensation system has functioned primarily as a mechanism to compensate workers for the consequences of accidents. The role of workers' compensation in preventing accidents has been less clear. Experts disagree over whether the system has in fact made workplaces safer." Builder Inc. and Construction Ltd.'s experience on the matter, however, is worth examining, particularly if one considers how little attention analysts have given to the empirical data—the actual administrative experience of companies with respect to this issue. Before the mid-1970s, the workers' compensation system exerted little influence on the two companies' accident prevention efforts. Then, a significant change took place, and the workers' compensation system soon became a powerful regulatory force in their organizational environments. In 1985, ac-

74

The Law and Enterprise Responsibility

cording to Builder Inc. and Constructor Ltd. officials, the workers' compensation system was more than a compensatory mechanism; it was also a major regulatory mechanism. As a Constructor Ltd. safety department official observes, "workers' compensation is a real driving force in our safety program." A Builder Inc. official makes a similar point: "OSHA is no longer our motivating factor. Now [1985] it's economics, workers' comp costs." To see how the OSH Act's passage represented a turning point in these developments, eventually leading to the workers' compensation system's emergence as a major regulatory mechanism, it is first necessary to consider what the statute itself has to say about the system. Section 27 of the Act states, in part: [T]he vast majority of American workers, and their families, are dependent on workmen's compensation for their basic economic security in the event such workers suffer disabling injury or death in the course of their employment; and that the full protection of American workers from job-related injury or death requires an adequate, prompt, and equitable system of workmen's compensation as well as an effective program of occupation health and safety regulation. (My emphasis.) The Act goes on to note that "serious questions" have been raised regarding the program as a system of compensation: [I]n recent years serious questions have been raised concerning the fairness and adequacy of present workmen's compensation laws in the light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living. As a consequence, the OSH Act established a commission—the National Commission on State Workmen's Compensation Laws— to "undertake a comprehensive study and evaluation of state workmen's compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation," and to issue a final report containing a detailed statement of findings, conclusions and recommendations. One point regarding Section 27 is particularly noteworthy. As

75

The Law and Enterprise

Responsibility

described by the OSH Act, a clear division of labor exists between the workers' compensation system and OSHA. On the one hand, compensation is the essential purpose of the workers' compensation system; the innocent victim is to be made as "whole" again as material benefit can make possible. Preventing accidents is to be OSHA's job, on the other hand, for no mention whatsoever is made of any regulatory objectives to be served by the workers' compensation system. The Commission's report, published in July 1972, outlined the central purposes of what it described as a "modern" workers' compensation system. One central distinguishing feature of a modern system, according to the Commission, is that workers' compensation must play more than a compensatory role, it must also serve a prominent regulatory role. As the report stated, "The encouragement of safety is one of the basic objectives of a modern workmens' compensation program." 1 2 In this respect, the Commission's vision of the workers' compensation system differed sharply from that of the OSH Act's architects. Note also that the Commission strongly criticized cash benefits under the existing workers' compensation system as inadequate. 13 Accordingly, to better promote the compensatory goals of the system, and perhaps just as important, to encourage accident prevention, the Commission recommended numerous changes in order to increase system benefits. "[I]f our recommendations for adequate benefits are adopted," the Commission predicted, "the stimulus to safety for many employers will significantly increase." 1 4 The Commission's report was influential. In addition to recommending many significant changes in state benefits, the Commission also urged Congress to preempt the entire system if, by 1975, the states failed to meet the goals set out in their report. The result was the introduction of several bills in Congress either to preempt the states or to set mandatory national standards for the workers' compensation system. Congressional action was suspended, though, when the states began responding to these pressures to upgrade their workers' compensation programs. Consider California as an example. The Commission's report clearly triggered some major benefit increases, 15 accounting in part for the dramatic rise in monies paid out by California's workers' compensation system. In 1972, for example, benefits distributed by

76

The Law and Enterprise

Responsibility

California's program amounted to $411,380,648. By 1982 this figure had risen to $1,487,738,790—an increase of more than 300 percent. 16 There is no reason to believe this is an isolated example. To the contrary, most states followed a similar course of action, as a 1982 Business Roundtable study reports. "Workers' compensation benefits have been rising steadily at an ever increasing rate. During the period from 1975 to 1980, workers' compensation benefits increased by 300% in two states, by 200% in eight states, and 100% in twenty-two states . . . These increases "are partly a response to the National Commission on State Workmen's Compensation Laws which was created to study workers' compensation benefits." 1 7 Not surprisingly, the cost of workers' compensation insurance rose significantly as a result of these changes. Between 1970 and 1980, for example, premiums for California employers rose more than 40 percent a year, on average, or 406 percent for the decade. 1 8 Note also that during this period, the mid 1970s, the workers' compensation system began to emerge as a compelling regulatory influence, much more so than direct regulation by OSHA, according to Builder Inc. and Constructor Ltd. officials. To see how, it is first necessary to know something about how the workers' compensation system operates. Despite the various roles played by the states, workers' compensation is largely a privately administered and funded program. The workers' compensation statutes provide that each employer shall compensate disabled workers by a certain formula of benefits, and that the employer must pay for these benefits. To meet these statutory requirements most employers (including Constructor Ltd. and Builder Inc.) purchase workers' compensation insurance from private insurance carriers. The primary contribution workers' compensation provides to safety stems from the rate making structure used to calculate employer premiums. Premiums for large companies like Builder Inc. and Constructor Ltd. are not calculated as they are for, say, homeowner's insurance. Typically, a homeowner's premiums are classrated. That is, individual premiums are based on the average experience of an entire class of homeowners, without adjustment for individual experience. If the homeowner has a major fire, for example, his claim to the insurance company could very well amount to more than all the premiums he has paid or will ever pay.

77

The Law and Enterprise

Responsibility

Under this arrangement the insurance company's role is to spread risks among a class of homeowners. A very different method is used to determine workers' compensation premiums for large employers (about the top 20 percent). The premium formula operates roughly as follows. There are two key elements in the ratemaking procedure: the "manual rate" and the "experience modification rate." A state or inter-state bureau calculates manual rates for about 500 different work classifications (carpentry, plumbing, steel erection, and so forth) and publishes them annually. Simply put, each rating represents the previous year's average cost of insurance (benefits plus administrative costs) for each type of work. In California, for example, the Rate Regulation Bureau calculates these rates annually based on the state's injury experience with a particular work classification, such as pipefitting. It is important to note that, unlike automobile or homeowner's insurance, insurance carriers are legally prohibited from competing for workers' compensation premiums by varying these rates. So they are constant for all contractors doing similar work. This does not mean that all contractors performing similar work pay identical workers' compensation premiums. The premium an individual contractor actually pays is the manual rate modified by a percentage known as the Experience Modification Rate (EMR). In California, for example, the EMR is calculated annually for each contractor by the same rating bureau that publishes the manual rates. In essence, the calculation involves two steps. First, the rating bureau uses the manual rates to calculate the dollar amount of losses the company would have paid out during a designated period, usually three years, if one assumed "average" performance for its type of work and amount of payroll. Second, the rating bureau develops an "experience rating" by comparing actual claims paid by the employer for that period with expected claims. For example, if a company's actual claims for the three year period are 80 percent of expected claims, then the company's EMR is 80 percent. A contractor's workers' compensation premium is adjusted by his EMR. The result, of course, is that a lower rating means lower insurance costs. Because a contractor's EMR is recalculated annually, moreover, the system's rate making procedure in effect

78

The Law and Enterprise

Responsibility

constantly "rewards" contractors with good safety records and "penalizes" those with poor ones. In other words, experience rated premiums represent an institutionalized arrangement designed to internalize the costs of accidents, for it helps to assure that the costs of work-related injuries are borne by the enterprise whose activities give rise to the injuries. It is also important to stress just how the system operates as a cost internalization mechanism. It sends economic messages to the employer signaling the harm being done to employees in the construction process. As work-related injuries rise, for instance, so do company costs. Seen from this perspective the workers' compensation system functions as an information system. Experience modification rates vary greatly. In California, for example, EMRs among construction firms in 1980 ranged from 35 percent to 260 percent of the manual rates. 19 There is no doubt, moreover, that the cost differences arising from the system's rate making formula can be significant. An example illustrates the point. For simplicity, imagine a $500 million construction project. Further imagine three construction companies with very different safety records and corresponding EMRs. As Table 3-1 indicates, Company A, with an excellent safety record and an EMR of 42%, would pay about $4.42 million in workers' compensation premiums, which represents about 2.95% of the project's total labor costs. 20 Compare this to Company Β with an "average" safety record and an EMR of 100%. Company B's workers' compensation premium for the same $500 million project would then be about $10.5 million. In other words, the company with an average safety record would have labor costs more than 6 million dollars higher than the company with an excellent safety record. A company with a poorer than average safety record, such as Company C with an EMR of 120%, would be "penalized" with workers' compensation costs about $8.2 million higher than Company A. The first and most fundamental conclusion from this discussion is that for workers' compensation as opposed to homeowner's insurance, an individual company's occupational safety risks are not spread among a group of employers. Rather, the insurance carrier's role resembles that of a bill payment agency—it pays the employer's bills and collects its costs plus profit. Ultimately, the

79

The Law and Enterprise

Responsibility

TABLE 3-1

Experience modification rating

Company A Company Β Company C

42% 100% 120%

Workers' comp premiums for $500 million project

$4.42 million $10.50 million $12.62 million

Workers' comp premiums as % of total project labor costs 2.95%

7.00% 8.41%

employer bears the costs. Second, according to industry officials, in the highly competitive construction industry such differences in workers' compensation costs can make a critical difference. "Because of the workmens' comp rates," says a Constructor Ltd. official, "the big NCA [National Constructors Association] companies could not be in business and be competitive if they didn't have a good safety record." "Workers' compensation is the real driving force in our safety program," says another Constructor Ltd. safety department official. "We're getting such relief from insurance premium costs because of our low experience modification rates. We're saving dollars. And these are competitive dollars when we go out and bid a job." A Builder Inc. official illustrates the point: Lower Workers' Comp premiums can improve your chances of getting a job. These days, with times so rough in the industry, even a few hundred thousand dollars can win you or lose you a $100 million project. You have to understand that all the bigger companies have been doing these jobs for years. It's just a repetition of work to them. They all know the costs involved in building a power plant. So the bidding is awful close. That's why your worker comp rates can make a real difference. By contrast, other forms of insurance (such as builder's risk and liability) play a much less significant role in company practices, not only because they cost much less, but also because their ratemaking structures do not "reward" or "penalize" employers as do experience rated workers' compensation premiums.21 As the preceding discussion has shown, by preparing the way for a rise in workers' compensation costs, the OSH Act influenced the development of Builder Inc. and Constructor Ltd.'s safety programs in an important way. To understand why these costs have

80

The Law and Enterprise

Responsibility

become the motivating factor in their environment, however, it is not enough to know that workers' compensation costs have risen sharply. If this were the case, all similarly situated companies would be safety leaders like Builder Inc. and Constructor Ltd. The simple fact is they are not. Why? The rising costs of workers' compensation insurance is only half the story, as we will see in the next chapter, while the other half is the safety department's professional development. That is to say, although the workers' compensation system represents an important regulatory resource, how that resource is utilized, if at all, can greatly depend on the administrative initiative, and know-how, of those in the company who are professionally committed to tapping the workers' compensation system's regulatory potential. It depends, in short, on the safety department's professional competence. This aspect of the safety program development at Builder Inc. and Constructor Ltd. is the major focus of the chapter that follows.

Addendum: Inspections

Specific

Company

Directives

on

OSHA

A section of Builder Inc.'s safety manual entitled, "The Employer's Right To Limit Inspections" contains these directives. When the OSHA inspector appears at the jobsite in response to an employee complaint the jobsite safety engineer is instructed to "Examine the complaint carefully." A checklist is also provided to help him determine whether the inspector is in perfect compliance with all the OSH Act's procedural requirements for initiating an inspection: Does the complaint indicate that it was signed by an employee or representative of an employee? Does the complaint specifically describe the nature of the alleged violations, the hazards involved, and their location? Does OSHA refuse to limit its inspections to the scope of the hazards described in the complaint? For "general schedule" inspections (inspections not triggered by an employee complaint) another line of defense is prescribed: Does the inspector know under what nationwide plan the construction industry is subject to general inspections? Does the inspector know what specific hazards OSHA is concerned about in its plan to inspect the construction industry, generally, and Builder Inc. specifically? If there are several major construction projects in

81

The Law and Enterprise

Responsibility

the state, does the inspector have some reasonable basis, conforming to the goals of the national program, for singling out Builder Inc.'s construction site? If the inspector fails to satisfy any one of these requirements, Builder Inc., as a matter of policy, denies the inspector access to the job site. The inspector's only recourse, aside from abandoning the inspection, is to go to a federal court and request a search warrant. In this way, Builder Inc. uses the OSH Act's procedural formalities to erect an obstacle course and impede the inspector's efforts. When this strategy fails, and the inspector gains entry to the job site, Builder Inc. and Constructor Ltd. provide detailed guidelines on how to deal with the inspector during the course of an inspection. For example, Constructor Ltd.'s guidelines for "Conducting and Documenting an OSHA Inspection" include these directives, among others: Note all statements the compliance officers made about the inspection. Use tape recorders whenever possible. Photograph, diagram, and otherwise document in detail each area, incident, tool, person, etc., the compliance officers expressed interest in or discussed during the inspection. As much as possible, ensure that your photographs are taken from the same angle, height, and direction as the compliance officer's. Do not take photographs unless the compliance officer takes one. Learn as much as possible about the compliance officer's background (education, training, and experience). Ask specifically about his or her personal education and training. Note any refusal to answer or evasive answers. Know the kind of facilities the compliance officer has inspected and whether he or she has experience inspecting any similar types of facilities. [D]o not discuss possible violations of any safety problems or correct any mistakes made by the compliance officer. Only ask questions that might disclose the erroneous basis for and weakness in the ultimate OSHA conclusions about violations. The most effective way to contest an alleged violation is to present the arguments at the hearing. Presenting them at the closing conference [of the inspection] usually causes the charge to be lessened, not dropped. And then it is even more difficult to contest. Ensure that you fully understand everything that the compliance officers do or comment on, and if not, ask direct and

82

The Law and Enterprise

Responsibility

pertinent questions, documenting your questions and their answers. Do not be afraid to ask questions even if it impedes the inspection. You must insist on recording all facts. In summary, all statements, questions, and answers must be recorded. You should not be left with unanswered questions. Make your report thorough to the last detail. If you feel you made an error in comment or action, or if you feel uncomfortable with some aspects of the inspection, report it. The most important thing is that between the inspection and the potential hearing, every detail or problem is thoroughly documented. (My emphasis.) A detailed, written, formal report complete with original photographs, employee statements, drawings, taped transcripts, etc. will be submitted to Headquarters' Safety Department. . . within five days after completion of the inspection.

NOTES 1. "OSHA's passage triggered a spurt of hiring," recalls a Builder Inc. safety department official. "In the early years of OSHA, because of our inexperience with them, and our fear of them, on a job that we would operate with one safety man usually we put two on to try to maintain our job in compliance. Also, we put safety men on smaller jobs where they wouldn't have had one before OSHA." The number of safety personnel increased at Constructor Ltd. as well, according to a safety department official. "The number of safety personnel increased because our Company was committed to ensuring compliance with OSHA." 2. For example, Constructor Ltd. training materials state: Failure to adhere to the safety standards will essentially result in serious injuries or death. Therefore, anyone who repeatedly fails to comply with this safety program whether he is a supervisor, steward, or general foreman, will be dealt with in the following way . . . First, the individual will be counselled verbally. Second, if he continues to disregard safety procedures, he will be given a written warning and his activities will be documented. Third, if he continues to ignore the safety rules, he will be terminated. 3. See Marc Galanter, "Beyond Legal Representation: Dispute Processing, Non-Judicial Alternatives and the 'Third Wave' in the Access-tojustice Movement," paper presented at Colloquium on Access to Justice After the Publication of the Florence Project Series: Prospects for Future Action, Florence, Italy, October 15-18, 1979 (mimeographed), 7 - 8 . 4. For example, Constructor Ltd.'s safety manual describes the Safety Department's primary purpose in these terms: The Safety Department is responsible for monitoring Company compliance with standards and procedures promulgated under the Occu-

83

The Law and Enterprise

Responsibility

pational Safety a n d Health Act of 1970 ( O S H A ) a n d approved O S H A state plans. T h e d e p a r t m e n t reviews standards and regulations promulgated by O S H A or o t h e r governmental agencies, a n d formulates uniform interpretations a n d c o m p l i a n c e procedures w h i c h are disseminated to affected d e p a r t m e n t s and f u n c t i o n s . . . T h e d e p a r t m e n t advises a n d assists the legal d e p a r t m e n t in the preparation of contest actions and o t h e r procedural matters before O S H A a g e n c i e s . 5. A C o n s t r u c t o r Ltd. safety d e p a r t m e n t official m a k e s a similar point: T h e safety d e p a r t m e n t b e c a m e very visible after O S H A because we a s s u m e d a greater role in e n s u r i n g c o m p l i a n c e with safety a n d health requirements. We were m o r e active a n d aggressive than ever before in monitoring the s u p e r i n t e n d e n t s execution of his duties. 6. S t a t e m e n t s of corporate policy affirm the j o b site safety engineer's n e w role, and its close association with O S H A ' s regulatory regime. For e x a m p l e , C o n s t r u c t o r Ltd.'s j o b description of the j o b site safety engineer, issued in 1974, includes these " p r i m a r y responsibilities:" Maintain current k n o w l e d g e of all applicable O S H A , state or other governmental safety and health standards a n d regulations; ascertain that all subordinate p e r s o n n e l are appropriately knowledgeable; coordinate application and administration of such requirements at project site. C o n d u c t daily surveys of C o n s t r u c t o r Ltd. a n d contractors'/subcontractors' operations to ensure compliance with OSHA and state safety standards and regulations. Identify safety defects and initiate corrective action by responsible supervision. (My e m p h a s i s . ) 7. Q u o t e d b y H a n n a h A r e n d t , Between Past and Future (New York: Viking Press, 1961), 123. 8. S e e , E. Bardach a n d R. K a g a n , Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982), 9 3 - 1 1 9 , 123; S . K e l m a n , Regulating Sweden, Regulating America: A Comparative Study of Occupational Safety and Health Regulations (Cambridge, M a s s . : MIT Press, 1981), 2 0 5 - 1 4 . 9. A small part of this total includes M i n e Safety a n d Health Act ( M S H A ) inspections. 10. For e x a m p l e , the o p e n i n g lines of Builder Inc.'s safety manual state: This manual shall serve as a guide to achieve a uniform safety program for all Builder Inc. p r o j e c t s . . . It is the responsibility of project supervision to enforce all federal . . . regulations w h i c h pertain to safety. T h e Builder Inc. safety manual is a guide to effect the following objectives. [The first objective listed is] Provide guidelines for uniform i m p l e m e n tation of a safety program o n each project which ensures strict compliance with [OSHA's] statutory requirements. (My e m p h a s i s . ) 11. J o h n G . Turnbull, et al., Economic and Social Security (4th ed.; N e w York: T h e Ronald Press, 1973), 3 1 4 - 1 5 .

84

The Law and Enterprise

Responsibility

12. "Report of the National Commission on State Workmens' Compensation Laws (Washington, D.C.: U.S. Government Printing Office, 1973), 87. 13. Ibid., 18. 14. Ibid., 98. 15. These include, among others: change in the formula for weekly compensation payments to 66§% of earnings from the former 61®%; (2) shortening of the waiting period for temporary compensation to 3 days from the former 7 days, and a reduction of the period of disability necessary for exemption from the waiting period to 21 days rather than 49 days; (3) increasing the compensation payable for life in the case of total permanent disability to the same compensation rate as temporary compensation; (4) payment of temporary compensation increased to rates in effect when the payment is made if such disability exists after two years from the date of injury; (5) increased allowances for dependents in death cases; (6) medical and vocational rehabilitation for qualified permanently disabled workers. See Stanford D. Herlick, California Workers' Compensation Law Handbook (2d ed.; Los Angeles: Parker and Son, 1978), Vol I. 16. Private communication with Alan Tebb, Director, Workers' Compensation Institute, San Francisco, California. 17. The Business Roundtable, "Improving Construction Safety Performance: A Construction Industry Cost Effectiveness Project Report" (January 1982), 15. 18. Private communication with Alan Tebb. 19. R.E. Levitt, H.W. Parker, and N.M. Samelson, "Improving Construction Safety Performance: The User's Role," Technical Report No. 260 (Department of Civil Engineering, Stanford University, 1981), 10. 20. Ibid., 11. Typically, labor costs on such a project would be about $150 million, or about 30% of total costs. 21. A survey of construction industry insurance costs conducted by Stanford's Department of Civil Engineering (quoted in ibid., 9) reports: As insurance against direct losses and liability from accidents, most contractors will carry "Builder's risk" and "Liability" insurance in addition to the Workmen's Compensation insurance that is required by law . . . Although there are carrier-suggested rates for builder's risk and liability insurance, there is no legal requirement that insurance companies charge actuarially determined rates. The recommended rates vary by area of the country, by type of work, by the loss experience of the contractor and by insurance companies. No consistent statistics could be obtained on what contractors pay for this insurance. Although there are some kinds of construction work with recognized high liability risks that have consistently high premium rates, because of the exposure (i.e.: wrecking, elevator construction, sprinkler piping; with rates above 15%), most large contractors seem to pay an average of about 1% of their payroll for this coverage. It appears that many brokers/insurance companies use Builder's Risk and Liability prices as a bargaining, or "loss leader," item in their negotiation with contractors for the more lucrative Workmens' Compensation insurance, for which rates are set by law. (My emphasis.)

4 Professionalism and Accountability

We noted in chapter 1 that most scholarly thinking about regulation tends to view government rulemaking and enforcement as the defining feature of the regulatory process. To put the point more broadly, it displays a strong positivist tendency to convert every form of regulatory ordering into a one-way projection of authority emanating from the state and imposed upon a social landscape otherwise barren of normative orderings. The consequence of this emphasis has been that little attention has been paid to non-statist forms of regulatory ordering indigenous to various settings in society. In the preceding chapters we have viewed the regulatory system from a quite different angle, not as unitary and state-centered, but as diverse and multi-centered. In chapter 2 we saw that to understand the CCP's origins it is crucial to consider the socioeconomic network linking construction unions and their employers as a source of regulatory ordering, since it has influenced the dynamics of occupational safety regulation and its reform in significant ways. As we saw in chapter 3, a similar analysis can be made regarding the impact of OSHA. More particularly, it is important to stress the safety department's indigenous regulatory activity, how it conditioned OSHA's influence on Builder Inc. and Constructor Ltd.'s administrative development, and how it led to a di-

86

Professionalism

and

Accountability

vision of OSHA's authority within the two companies—OSHA as a regime of authoritative rules and OSHA as a system of commands backed by the threat of sanctions. These examples serve to illustrate an important point. If we are to understand what the actual, operative regulatory system looks like, from the standpoint of regulated firms, it is essential to consider the interaction of these regulatory spheres, public and private, as a realm of reciprocal influence where each affects the operation of the other in significant ways. In this chapter we further illustrate this interaction of regulatory spheres by looking in some detail at another major source of regulatory ordering—the professional safety movement. "My job," says a job site safety engineer with over twenty years of field experience at Constructor Ltd., "has changed a lot. The biggest difference is that there's more professionalism associated with the Company's safety people than ever before." His experience is far from unique according to two leading authorities in the safety field. "Professionalism," they write, "is currently one of the biggest thrusts in safety management. Since the mid-1960s the individuals involved in safety management have been working to have their profession recognized as just that—a profession." 1 The professional safety movement represents a significant source of regulatory ordering. Intimately associated with a distinct body of professional commitments, skills, and aspirations—"Safety Management"—these professional imperatives have influenced the development of Builder Inc. and Constructor Ltd.'s safety programs in major ways. The first centers around the safety department's headquarters-field relationship. To elevate the safety engineer's professional status on the job site, and increase his professional autonomy, safety department officials initiated a new pattern of recruitment and, at about the same time, centralized their control over the field safety organization. The second area of administrative development centers around the safety department's relationship with management, especially construction site supervisors. To nurture and develop management's sense of responsibility for occupational safety, safety department officials created a structure of responsibility. The third area centers around the safety department's relationship with construction workers. To harness worker support for job site safety programs, safety department officials at Builder Inc. and Constructor Ltd., together, among others, devel-

87

Professionalism

and

Accountability

oped a new structure of participation—the Cooperative Compliance Program's labor-management committee. In examining these developments, my purpose is threefold. One is to set the stage for explaining the CCP's success (begun in the preceding chapter) by further describing the administrative development of Builder Inc. and Constructor Ltd.'s safety programs prior to the CCP. Without such a baseline we have no basis for explaining the CCP's success. Another is to highlight the professional safety movement's role as a form of regulatory ordering by examining its influence on the two safety programs. The third is to explore further the interaction among regulatory spheres, particularly between OSHA and the corporate safety programs, and between the workers' compensation system and the professional safety movement. The chapter is divided into two parts. The first part discusses the professional safety movement in general, its history and leading ideas. With this backdrop, the second discusses the professionalization of Builder Inc. and Constructor Ltd.'s safety departments, in terms first of the safety department's headquarters-field relationship, and then of its relationship with management. The third area of administrative development, the safety department's relationship with construction workers, will be the central focus of the following chapter. The Professional

Safety

Movement

The history of the professional safety movement is closely related to the evolution of The American Society of Safety Engineers (ASSE), the oldest, largest, and most influential organization advancing the cause of professionalism among safety engineers. Founded in 1911 with 35 members (the same year as the first workers' compensation laws were enacted) the Society merged with the National Safety Council as its engineering section in 1924, a relationship which lasted until 1947 when it was reestablished as an independent organization of 5,000 members. For most of its history, because little emphasis was placed on the qualifications and professional integrity of the Society's membership, the ASSE is best described as an occupational association rather than a professional one. As a former ASSE official recalls, "A lot of ASSE members were simply peddlers. They were representatives of safety equip-

88

Professionalism

and

Accountability

ment manufacturers who chose to affiliate with the ASSE because these were the people who they sold their products to." The mid-1960s represent a major turning point. For the first time in the Society's then 54 year history, the role, qualifications and status of members as professionals became the ASSE's paramount concern. In 1966, for example, the ASSE published a major policy statement—"Scope and Functions of the Professional Safety Position"—which for the first time defined a professional role for the occupation. Society members, it was proclaimed, had now achieved "professional status" by virtue of their "specialized knowledge." Though a rather lofty claim under the circumstances, and containing more rhetoric than fact, the pronouncement nonetheless represents a new sense of organizational purpose and an important first step on the path of professionalization.2 The next critical steps came two years later, in 1969, when ASSE's formal mission and administrative structure were transformed. First, ASSE officially announced a new mission for the organization: "to promote the advancement of the Safety Profession and foster the professional well-being and development of its members." Second, and closely tied to the first,3 ASSE established titles and measures of distinction, not only to distinguish levels of professional accomplishment among its members, but also to provide an incentive for the less professional members to become more so. As a consequence, most ASSE members were separated into two categories—"Member" and "Professional Member." 4 In addition, a board of professional certification was created to further measure, distinguish, and certify levels of professional competence among "Professional Members" ("Associate Safety Professional," "Certified Safety Professional," and so forth). "Certification," ASSE states, "is granted only to those individuals whose professional safety experience and education meet a high level of established criteria and who pass a comprehensive challenging examination." 5 It is noteworthy that ASSE's leadership is today dominated by Certified Safety Professionals. 6 Who advocated the Society's reorganization along these lines? It was the ASSE's "real professionals," a former ASSE official recalls: Up to the mid-1960s any Company, without any criteria, could select a man and say he was their safety director; he was safety director by virtue of appointment. There was no basis for mea-

89

Professionalism

and

Accountability

suring his capabilities, for determining whether he was capable of functioning well or not. In fact, it was pretty common for a company to take a member of the owner's family, someone who didn't fit any place else within the company, and make him the safety director. Anybody could be a safety director. But a person that is certified, having passed the examinations, has credentials. It establishes the fact that he's not just a Johnny-come-lately. The tests are not an automatic thing—just apply and pass; a lot of people flunk it out just like they do the bar exam. So it was part of the effort by real serious safety people, the real professionals in the field, to establish the credibility of the safety effort. 7 Aside from titles and measures of distinction, it is also worth noting that the ASSE began advancing the cause of professionalism in numerous other ways—for instance, offering professional development conferences, standardizing occupational terminology, publishing an official journal for the profession, and public relations. As a case in point, consider the ASSE's "accreditation project." As the demand for safety professionals rose in the 1970s, largely because of the OSH Act, numerous colleges began offering degree programs in occupational safety. Not surprisingly, the threat to professional standards posed by marginal schools grew as well. Faced with these circumstances, the ASSE developed a system of accreditation and in 1983 granted its first seal of professional approval to Indiana University of Pennsylvania. 8 "We have advanced considerably towards professionalization during the past 10 years," the ASSE president wrote in an editorial for the Society's official journal. "[Programs] such as the accreditation project should take us a few more steps toward our goal." 9 The important point is this. Intimately associated with the safety movement's professional aspirations is a claim to possessing a distinctive competence governed by a specialized body of knowledge—Safety Management. For our discussion this claim is the most significant step the ASSE has taken toward the goal of professionalism. SAFETY

MANAGEMENT

"Professionals," Everett C. Hughes has written, "profess to know better than others the nature of certain matters, and to know better

90

Professionalism and Accountability

than their clients what ails them or their affairs. This is the essence of the professional idea and the professional claim." 10 What distinctive competence does the "safety professional" claim to possess · "A safety professional," according to the ASSE, "is an individual who, by virtue of his specialized knowledge, skill and educational accomplishments, has achieved professional status in the safety field." (My emphasis.) This specialized knowledge includes two different types of skills. The first is essentially technical and includes knowledge of engineering, physics, chemistry, statistics, mathematics, and so forth. But according to the ASSE something more than proficiency in technical skills is at the core of the safety professional's distinctive competence—namely, administrative competence. "Knowledge of management principles," the ASSE states, is "essential to apply the safety professional's specialized knowledge." (My emphasis.) What makes knowledge of management principles so important? Historically, administrative competence has not always occupied a place of central importance in the safety movement. The early years of the movement focused almost exclusively on engineering matters, that is, hazardous physical conditions—for instance, methods of machine guarding to protect the operator from hazards created by rotating parts, flying chips, and sparks. Reflecting this strong engineering bias, the safety movement's first occupational association was named accordingly—the American Society of Safety Engineers. 1931 marked the beginning of a major reorientation within the safety movement. That year, H. W. Heinrich, while employed at the Traveler's Insurance Company, published Industrial Accident Prevention: A Scientific Approach. It has been said of Heinrich that "Probably no single person in the world has had a greater influence on teachers and practitioners of safety . . . during the past 30 years." 11 Put simply, Heinrich's thesis is that 85 percent of accidents are caused by unsafe acts, while unsafe conditions cause the rest. For this reason Heinrich claimed that the safety movement's engineering bias is misdirected; controlling the worker's unsafe acts should be the safety movement's major target. Under Heinrich's influence, which dominated the safety movement until the 1960s and remains influential to this day, "safety education" became the keystone to industrial accident prevention. 12 In the 1960s the safety movement again turned in a new direc-

91

Professionalism and Accountability

tion—Safety Management. While safety engineering focuses primarily on the unsafe condition and safety education on the unsafe act, Safety Management focuses primarily on the organizational context in which unsafe conditions and unsafe acts occur. According to this logic, the safety professional's critical task is to analyze particular unsafe acts and conditions in order to uncover a disorder or malfunction in the management system. Safety Management thus represents a broad synthesis of previous accident prevention models, a synthesis based mainly on "knowledge of management principles." A major statement of Safety Management's basic axioms is a 1965 article by W.C. Pope and T.J. Cresswell, "A New Approach to Safety Programs Management." Recently described as "a classic on the subject of safety management," the article presented safety professionals with a totally new approach to their job and decisively influenced the ASSE's formal definition of the Safety Professional. 13 The key to placing safety programs in proper perspective, Pope and Cresswell write, "is a full appreciation and understanding that any accidental incident is an indicator to the management team that something has gone wrong with the system." Hence, the safety professional's essential role is that of a "systems evaluator," diagnosing and remedying disorders in the administrative system, such as "incomplete decision-making, faulty judgments, administrative miscalculations, and just plain poor management practices." To illustrate, Pope and Cresswell offer this example. "If a finger is lost on an unguarded machine . . . the obvious thing to do is get that machine guarded." Once the machine is guarded, the safety engineering approach to the problem ends. But for Safety Management, according to Pope and Cresswell, this is only the beginning because unsafe acts and conditions "will have to be translated into broader areas of responsibility involving communications, policies, directives, etc.": [A] guard . . . promptly placed at the scene of the accident does not solve the "systematic" trouble. Why was the machine not guarded when purchased? Or, what is wrong with the dayto-day inspection plan that allows this unguarded condition to go unnoticed? Or, where did the job orientation fail because the employee did not report the deficiency? . . . Note that each question relates back to a particular management function embracing a directive, policy, or organizational practice over

92

Professionalism

and

Accountability

which the supervisor or the employee may have had no direct control. "Safety managers," in short, "should stop thinking in terms of the individual, step back, and see the problem from the whole management point of view." 14 Though such diagnoses are clearly important, according to Pope and Cresswell, they will not yield a "total solution" to occupational safety problems. That, they say, requires administrative know-how of a somewhat different sort. What makes administrative competence truly essential is the safety professional's overall goal: harnessing the managerial support required to develop a sustained and effective organizational commitment to occupational safety. For a "total solution" of the occupational safety problem, as Pope and Cresswell put it, safety professionals "must understand organization and processes of management to bring about the quality of interest and support required by the safety function from other . . . members of the management 'team.'" (My emphasis.) Administrative competence, in short, plays an indispensable role in Safety Management's basic objective—promotion of enterprise responsibility.15 To set the stage for our subsequent discussion, two corollaries of the Safety Management model are particularly noteworthy. The first concerns labor-management relations. In order to integrate the safety program into the management system, according to Pope and Cresswell, the safety professional should minimize conflict and promote labor-management cooperation. "[S]afety administrators will do well to adopt the concept: N O T W H A T IS W R O N G W I T H P E O P L E , BUT W H A T IS W R O N G W I T H T H E ( M A N A G E M E N T )

SYSTEM! . . . The labor-management struggle should not be perpetuated by pitting supervisors against employees in attempting to explain why accidents happen." 16 Also note the contrast with Safety Engineering and Safety Education, which tend to promote a more adversary approach—unsafe conditions are management's fault and unsafe acts are the worker's fault.17 Another consequence of the Safety Management model involves the safety movement's professional ambitions. The safety professional's essential task—to serve as a "systems evaluator"— makes him something more than an engineer and educator accord-

93

Professionalism

and

Accountability

ing to Pope and Cresswell: "Once management has recognized the role of the safety programs administrator in the organization as that of a systems evaluator, specialized in identifying mistakes in the management system through accidental incidents, he becomes a full partner on the management team." 1 8 And when we add to this the ASSE's new mission, the professionalization of safety engineering, it is not difficult to see why the Society actively disseminated these principles throughout the safety movement. 19 Another ASSE policy statement concludes: Through these . . . efforts safety professionals play a major role in their organization's financial structure and viability. Because effective safety professionals are key cogs in their organization's profitability, they can aspire to important posts in their organizations, and reach important positions in the management of their enterprises. 20 To summarize, the mid-1960s represents a major turning point for the safety movement in the United States. It was during this period that leaders of the movement, primarily through the ASSE, embarked on a self-conscious and concerted effort at professionalization, a "professional project," not unlike lawyers, engineers, and doctors before them. 21 And it was also during this period that a new ideology emerged to guide that development—Safety Management. Now let us return to Builder Inc. and Constructor Ltd. to examine how these professional imperatives operated as forms of regulatory ordering and influenced the evolution of their safety programs. The Professionalization of Builder Ltd.'s Safety Departments

Inc. and

Constructor

Before the 1970s the professional status of Constructor Ltd. and Builder Inc.'s safety departments was weak and insecure. "Fifteen years ago we weren't really looked upon as professionals in our company," a Builder Inc. safety department official recalls. "We really had an outsider status—the staff of a staff position. Not anymore. The safety department has become a very integral part of the company." A Constructor Ltd. safety department official notes a similar development. "Construction site supervisors used to view

94

Professionalism

and

Accountability

us as intruders or extras in the work process. It has taken us some time to change that perception. But today we are viewed as key members of the project team." To put this development in more general terms, the institutionalization of a precarious organizational value, such as environmental protection or occupational safety, generally depends upon a group inside the organization who are both committed to the value at stake and who possess sufficient authority and autonomy to protect that value. Otherwise, the value is likely to remain tenuous, insecure, and vulnerable to corruption. 22 From this perspective, the safety department's professionalization represents a critical step in the institutionalization of a precarious organizational value, occupational safety, within Builder Inc. and Constructor Ltd. Safety department officials promoted this development in three especially important ways: by developing their professional competence, by centralizing their control over job site safety programs, and by developing an administrative system designed to strengthen the organizations' commitment to occupational safety. Each is examined in turn. T H E D E V E L O P M E N T OF P R O F E S S I O N A L

COMPETENCE

In the administrative development of a formal organization, perhaps no policy is more important than the recruitment of key personnel. How they are selected, and how those practices change over time, reveals a great deal about an organization's true commitments. Major changes in Builder Inc. and Constructor Ltd.'s recruitment practices are a case in point. Before the 1970s, recruitment of job site safety personnel was an ad hoc and subjective process entirely dominated by the job site superintendent's personal preferences. As a Constructor Ltd. safety department official recalls, "We used to recruit people on a pretty subjective basis. Job site superintendents would hire whoever caught their fancy. Sometimes the superintendent would hire his brother-in-law or someone recommended by the client, a nephew or someone like that they wanted on the payroll." Nor was careful consideration given to an individual's qualifications, as a Builder Inc. safety department official recalls: "We weren't particular about who we hired. We were hiring broken down military people who didn't know how to spell safety." That is so, company officials explain, because considera-

95

Professionalism

and

Accountability

tions of technical competence were simply unimportant given the safety man's actual tasks on the job site. He was, first and foremost, not a safety man out to prevent accidents, but a first-aid man whose "primary duty was to patch up people when they got hurt," as a Builder Inc. official puts it. "We didn't spend much time and effort on preventing the injuries; so we'd hire people from any place we could find them and recruit them, as long as they had some first-aid capability." At Constructor Ltd. and Builder Inc., the field safety organization thus evolved out of the construction site's first-aid office. By the early 1970s the recruitment process began to change in some significant ways. Intent on strengthening the safety department's professional competence and elevating their organizational status, safety department officials at Builder Inc. and Constructor Ltd. began to give much more careful consideration to the qualifications of job applicants. 23 "I took over as corporate safety manager in 1968," a Builder Inc. official recalls: Anyone stepping into a job like that has new ideas. One of mine was to make the safety division more sophisticated to gain some respect and credibility in the company, instead of just being known as "band-aiders." I remember how it used to really burn me up when someone called me a "band-aider," and I really wanted to change all that when I became the safety manager. It is therefore quite understandable that Builder Inc. safety department officials (and Constructor Ltd.'s as well) began employing more objective measures to identify and recruit safety engineers. Builder Inc. turned to the university as its major source of professional talent, for example, and by 1975 about 90 percent of the department's field safety engineers had degrees in engineering or construction management. "It was a difference between day and night," a long time Builder Inc. safety department official recalls. These university trained recruits "were top-notch professional construction safety engineers, just head and shoulders above their predecessors [the "band-aiders"] in terms of their technical abilities." One could also say they were head and shoulders above their predecessors in terms of organizational status. In most cases, a Builder Inc. official explains, "the safety department people had

96

Professionalism

and

Accountability

more formal education than the people put out there by the construction department, because most of those people came up through the crafts. Their competency level was three times what we had in the past, so they were able to communicate with the job site supervisors with a much greater degree of credibility." Constructor Ltd. changed its recruitment practices as well in the early 1970s, but took a rather different approach in doing so. Instead of turning to the university, Constructor Ltd. conducted a talent search of sorts to identify and recruit safety engineers "who had proven track records in construction safety," as one company official put it. In sharp contrast to past recruitment practices, when safety engineers were hired in a casual and seemingly arbitrary fashion, safety department officials now scrutinized the qualifications of prospective employees much more closely through indepth interviews and examinations of their work histories. In this way, the social base of an expanded, more professionally-oriented safety department was laid. Meanwhile, the employment status of Constructor Ltd. safety engineers also changed. In the 1960s the typical safety engineer's employment with Constructor Ltd. was short-term; hired for the duration of a construction project, when it ended so did his job with the company. The safety engineer's status thus resembled that of the craftsperson, traveling from construction site to construction site without any special ties to a particular construction company; he was peripheral and expendable. That practice was changed, though, when the department's efforts to recruit more talented safety engineers began in earnest. " O n e of the things we have tried to do since the early '70s is to create in the minds of the safety people that employment with the Company is not a casual thing, just for the length of the project," says a Constructor Ltd. safety department official. "We have tried to assure them that if they perform well, according to our standards, that we would make every effort to see that they are placed on other projects." Because of this, the job site safety engineer's relationship with Constructor Ltd. became less transitory and expendable, more career-oriented. Safety department officials began charting a course of professional development for each safety engineer, including performance evaluations, career counseling, specialized training, and selective job

97

Professionalism

and

Accountability

assignments. "We now provide our people with a career path and a sense of advancement," a safety department official explains, "like other company supervisors on the construction site." Finally, in the late 1970s, when the first graduates of the new safety engineering programs came onto the job market, the recruitment of job site safety engineers took yet another turn at Constructor Ltd. The company began drawing extensively from this new pool of professional talent and also established a summer-intern program specifically designed to identify and recruit top graduates. Frequently described as a "turning point in the profession," these new college programs (or at least some of them) are thus viewed as a very important resource by safety department officials at Constructor Ltd. and Builder Inc. As a consequence of these new personnel practices, the safety department's authority at Builder Inc. and Constructor Ltd. was enhanced in significant ways. First, it seems clear that selectively recruiting field safety personnel with specialized training changed the safety man's role dramatically. No longer a mere first-aid man or band-aider, he was now a professional—a safety engineer. For example, Constructor Ltd.'s first job description for the "Job Safety Supervisor," written in 1964, makes no mention whatsoever of any required technical expertise or administrative know-how; after all, his essential task on the job site was a relatively simple one, providing rudimentary first-aid. By contrast, consider Constructor Ltd.'s 1983 edition of its corporate safety manual which portrays the safety engineer's qualifications in much more elaborate terms. The job safety supervisor's "job knowledge," the manual states, must include the following: Experience in supervising the safety and health function on a construction project. Experience in developing and supervising the implementation of the Project Safety Action Plan. Knowledge of governmental safety and health standards, rules and regulations and experience in applying them on a construction project. Knowledge of governmental safety and health recordkeeping requirements.

98

Professionalism

and

Accountability

Proficiency in safety construction work practices. Knowledge of Constructor Ltd.'s and Safety Department's organizational structure, procedures and personnel administration. Experience

in implementing

safety and health

training

programs. Knowledge of construction fire fighting practices. Skills in verbal and written communications. Knowledge of first aid procedures. The safety engineer's first-aid skills, of primary importance at one time, are now relegated to last place. And with a new kind of authority on the job site, professional authority based upon technical expertise, his organizational status rose accordingly.24 Note also that their previous professional conditioning now made safety department field personnel much more strongly committed to protecting and advancing the safety department's goals on Builder Inc. and Constructor Ltd. job sites, which further enhanced the safety department's authority within the organizations.

T H E D E V E L O P M E N T OF P R O F E S S I O N A L

AUTONOMY

The institutionalization of a precarious organizational value can be advanced significantly by the formation of a group within the organization that spontaneously champions the value at stake. And as our discussion has shown, the emergence of a technically sophisicated group at Builder Inc. and Constructor Ltd., whose profesional conditioning made them strongly committed to occupational safety, represents an all-important step in that development. It is important to underscore that the process of institutionalization can be frustrated, however, if the group lacks sufficient authority and autonomy to protect that value. Builder Inc. and Constructor Ltd.'s administrative development is a good case in point. As will be made clear in the next two sections, in the early years of their safety programs, safety engineers lacked the administrative authority and autonomy to carry out their professional responsibilities fully on Builder Inc. and Constructor Ltd. job sites. The construction site authority structure was a system of one-man rule with the project superintendent dominating the job site. The

99

Professionalism and Accountability

end result of this administrative arrangement, according to company officials, was a hostile and alien environment for job site safety engineers, a social setting that left them weak and vulnerable. The important point to note here is that safety department officials challenged the superintendent's one-man rule. More specifically, to provide safety engineers with the professional autonomy they required, safety department officials centralized their control over the field safety organization in various ways, and with OSHA's help established a system of dual supervision—the safety engineer takes direction from the safety department as well as the superintendent. TRADITIONAL CONSTRUCTION SITE AUTHORITY

RELATIONS

Until the late 1960s, the project superintendent expected unreserved loyalty and obedience from his staff, including the job site safety engineer. "The superintendent literally defied anybody to challenge him. He was the supreme authority on the job site," as a Constructor Ltd. official recalls. "In those days," says a Builder Inc. official, "a superintendent was God. Nobody crossed the superintendent. Nobody had any real line authority on a job except the superintendent. If a superintendent said 'Jump/ everyone on the job site would say 'How high?' " At Constructor Ltd., for example, the job site safety engineer was on the superintendent's payroll. That is, the superintendent hired and fired the safety engineer, set his salary, and gave him raises. Indeed, the superintendent even "dictated whether or not he was going to have safety persons on the job, and if so, how many and for how long," a Constructor Ltd. official recalls. In effect, he adds, "the superintendent dictated the overall level of safety on his job site." The position of Builder Inc. field safety engineers was similar. In conducting their day-to-day business, safety engineers were totally dependent on the rule of one man, the job superintendent. "It was the job superintendent's prerogative to set the level of safety he wanted on his job," a Builder Inc. official recalls. "Some jobs had safety meetings and some didn't. It was up to the superintendent. If the superintendent was of the opinion that safety meetings were a waste of time, he just said so: 'No, I don't want safety meetings on my job.'"

100

Professionalism

and

Accountability

According to safety department officials, the superintendents' domination created real problems for the safety program. That is so, not merely because they totally dominated job site safety programs, but because their attitude toward safety had been formed in "the stone age of the safety movement," in the words of a Constructor Ltd. safety department official, when construction company safety programs were weak, most government regulation ineffective, and superintendents were thus left more or less unrestrained by safety-related concerns. "The old-school hard-line superintendents, says a Builder Inc. official, "were just rougher than a nail." Doubtless, some superintendents were more willing to support the safety man's efforts than others. But it is important to stress that the amount of support most superintendents gave safety engineers was held in check by popular attitudes that pervaded the construction industry before the 1970s. "Construction was still perceived to be a rough, tough, and hazardous occupation" is how a Constructor Ltd. official describes popular attitudes in the 1960s. The prevailing view was that high injury rates were an inevitable and largely uncontrollable byproduct of the construction process. In addition, most accidents were considered to be economically insignificant, as we will see in a moment, simply because superintendents were largely unaware of their effect on company profits. Needless to say, attitudes such as these did not make the safety department's job easy. "The safety department was always swimming upstream in those days," a Constructor Ltd. safety department official recalls. "We had to fight just to get hard hats and safety belts on people." The superintendents "saw safety as something being pushed down their throats by the home office, a goddamn nuisance, and probably the last single item deserving their attention," a Builder Inc. safety department official recalls. "When a safety problem arose the safety man was constantly being overruled by the superintendent. His attitude was time is money and safety costs you money." In this situation, the construction site's traditional authority structure compounded the safety engineer's problems. Because the traditional reach of the superintendent's authority ruled out any appeals to "outside" authorities, such as the headquarters safety staff, the safety engineer had no effective re-

101

Professionalism and Accountability

course when overruled by the superintendent. The safety engineer had "no place to go," in the words of a Constructor Ltd. official. He was "on his own." DUAL

SUPERVISION

The first and most fundamental conclusion from this discussion is that traditional construction site authority relations frustrated the professional aspirations of safety department officials at Builder Inc. and Constructor Ltd. headquarters. "You can't manage a function if you don't control your people," as a Constructor Ltd. safety department official puts it. "It's just so basic. We just didn't have any control over our people in the field. And without that control, how in the hell are you going to get them to do what you want?" It is not surprising, therefore, that safety department officials sought to establish a system of dual supervision, not only to strengthen their control over field safety engineers, but also to reduce the project superintendent's authority. At Constructor Ltd., for example, the authority to hire, fire, and set the salaries of field safety engineers shifted, about 1968, from the job superintendent to safety department headquarters. Constructor Ltd.'s Safety Manual documents the change. A 1964 statement of policy strongly reflects the one-man rule characteristic of traditional construction site authority relations; it bluntly states: "The Safety Engineer (Field Assignment) is responsible to the Job Superintendent." The corporate safety manager, on the other hand, is confined to an advisory role: the safety manager shall, "Assist construction . . . supervisory personnel in the selection and assignment of Safety personnel and make recommendations as to their performance." (My emphasis.) By the late 1960s this practice was being challenged. "The safety people," says a Constructor Ltd. official, "were probably the first group on the job site to say to the superintendent, 'With all due respect, you may not be the best authority on safety, and therefore we are going to seek assistance from safety department headquarters'." By 1969 corporate policy began to affirm these initial assertions of independence. "The Safety Department," Constructor Ltd.'s corporate safety manual states, "is responsible for staffing project sites with safety . . . personnel, for salary administration, and for functional supervision."

102

Professionalism

and

Accountability

Even with this change in formal policy, though, a Constructor Ltd. official notes that "old habits die hard: We still had to really hassle some of the superintendents who still thought the safety man was their man and that they could hire whoever they wanted to." To break superintendents of these old habits, and reorient field safety engineers accordingly, safety department officials travelled to the job sites. "I was traveling to the job sites three out of four weeks a month, a Constructor Ltd. safety department official recalls: I brought to the job superintendents the message that we do have a safety organization at headquarters that is viable, that we do have accountability, and we're interacting with senior management at headquarters. We said to the safety people on the jobs, "We are your confessor. If you have a problem come to us. It's okay to go to the superintendent with a problem. But when he disagrees with you, you are obligated to turn to the home office for assistance in resolving your problem." We told them that it is unacceptable to simply say, "Well, I tried. But the superintendent didn't want to go along with it." We told them that a response like that will get them reprimanded and ultimately replaced. In fact, he adds, "we replaced a few people for just that reason." Safety department officials centralized their control over the field safety organization in other ways as well. When the status of safety engineers became less transitory and more career-oriented, for example, their loyalties to the safety department increased, since they were now dependent upon the safety department for continued employment and future advancement. Similarly, when the safety department's influence over project superintendents increased (a development examined below), the field safety staff's dependence upon and loyalty to the safety department increased as well. "The field safety people," as a Constructor Ltd. safety department official puts it, "began to see us as an asset." Finally, in the mid-1970s, Constructor Ltd. safety department officials took a most important step towards increased centralization. A new administrative position, the regional manager, was created to facilitate control over field safety staff. Through constant communication with the field safety engineers on the one hand, and headquarters safety staff on the other, regional managers rep-

103

Professionalism

and

Accountability

resent an elite group of safety engineers who continually project the safety department's authority onto the job sites. More crucially, they provide a critical link in Constructor Ltd.'s policy of dual supervision.25 As a result of such developments, Constructor Ltd. thus developed a corps of field safety engineers whose professional commitments, and close ties with the home office, enabled the safety department to successfully challenge the superintendent's traditional domination of job site safety programs. Builder Inc.'s safety department responded to the traditional construction site authority structure, and the problems it created for the job site safety program, in much the same way as Constructor Ltd. Like Constructor Ltd., Builder Inc. safety department officials recruited a corps of safety engineers whose educational backgrounds and professional commitments made them selfconscious outposts of the safety department. Like Constructor Ltd., Builder Inc. safety department officials developed administrative controls to increase the superintendent's accountability for occupational safety, thereby increasing the field safety engineer's reliance on the safety department for assistance and support. And like Constructor Ltd., by establishing a system of dual supervision Builder Inc. successfully challenged the project superintendent's traditional domination of job site safety engineers. Hence, just as a sphere of administrative autonomy was created on Constructor Ltd. job sites more or less insulated from the superintendent's control, so also on Builder Inc. job sites. O S H A A N D T H E D E V E L O P M E N T OF PROFESSIONAL

AUTONOMY

The establishment of a dual supervision policy represents a major milestone in the development of Builder Inc. and Constructor Ltd.'s safety programs. Though various factors account for that development (new personnel practices, new administrative leadership, new social and political climate, new accountability mechanisms, among others) one is especially important—the passage of the OSH Act. It is therefore important to ask how OSHA contributed to this development, not merely because OSHA played a criti-

104

Professionalism

and

Accountability

cal role, but also because analysts have generally overlooked the agency's manifold indirect effects, particularly upon the internal operation of regulated enterprises. To begin our discussion, it is useful to note Philip Selznick's observation that the successful operation of a dual supervision policy "really presumes an optimum situation in which a strong value oriented elite [such as safety department personnel] has had enough autonomy to lay down professional criteria [such as safety rules] that are accepted by the line officials [such as superintendents]." "[W]here the boundaries are unclear it is to be expected that the professional group will be vulnerable to external pressure." 26 This leads to the conclusion that without clear guidelines the institutionalization of a precarious organizational value, such as occupational safety, will in all likelihood be stymied. This argument fits well with Builder Inc. and Constructor Ltd.'s administrative experience. In the two or three years prior to OSHA's creation in 1971, for example, though safety department officials had already begun to strengthen the professional orientation of their personnel in order to create a strong value-oriented elite, this process of character development was still very much in the formative stages because the field safety representatives' position remained tenuous and insecure. More precisely, the boundaries within which safety department personnel could operate on the job site were not well defined because most construction site safety rules remained vague, unsystematic, and weakly binding. "That's the thing about the early safety business," recalls a Constructor Ltd. official, "there just weren't a helluva lot of rules." And because rules lacked the precision and authority required to effectively circumscribe the reach of the superintendent's authority, it is little wonder that Builder Inc. and Constructor Ltd.'s policy of dual supervision ran into considerable difficulty. So long as the rules remained vague and weakly binding, they are easily subordinated to the superintendent's will. In effect, dual supervision collapses into one-man rule. As discussed in chapter 3, the OSH Act's passage changed this situation by establishing authoritative boundaries. On the one hand, OSHA gave the safety departments a mandate. It was their job to ensure compliance with OSHA, and it was their job to defend the detailed regime of OSHA-related requirements that demarcated the

105

Professionalism

and

Accountability

safety departments' sphere of administrative authority on the job site. On the other hand, job site superintendents were compelled to accept the safety departments' new sphere of authority, despite the inroads it made into their traditional prerogatives, not only to avoid the sanctions an OSHA inspection might inflict, but more importantly, because Builder Inc. and Constructor Ltd.'s corporate leaders had mandated a policy of voluntary compliance. After OSHA, as a Builder Inc. safety department official puts it, "the superintendents had rules to contend with: We supplied superintendents with an entire set of OSHA standards. They knew what they could do and they knew what we could do. We all started communicating much better. If a superintendent disagreed with us on something, we could turn to The Book to settle the matter." The critical element here is not that OSHA gave safety department officials more authority, but rather, that OSHA's passage supported the safety departments at a critical stage in their development. OSHA, in other words, made dual supervision a viable alternative for the engineers in their challenge to the superintendents' customary one-man rule. More precisely, OSHA's passage coupled with the safety departments' professional aspirations, through a process of reciprocal influence, supported the development of enterprise responsibility at Builder Inc. and Constructor Ltd. in a deep-seated and lasting way. SAFETY M A N A G E M E N T AND THE OF E N T E R P R I S E

DEVELOPMENT

RESPONSIBILITY

Professional safety management has its own imperatives. To become "a full partner on the management team," Pope and Cresswell write, the safety professional must develop the administrative wherewithal for two related tasks: to diagnose and remedy the institutional problems associated with developing an effective safety program, and to stimulate management interest and concern in order to build a sustained and effective organizational commitment to occupational safety.27 Aspirations such as these have influenced the development of Builder Inc. and Constructor Ltd.'s safety programs in one especially important way. Twenty-five years ago the occupational safety sphere on Constructor Ltd. and Builder Inc. job sites lacked a structure of respon-

106

Professionalism and Accountability

sibility. Neither company held job site supervisors accountable for their safety-related performance, nor was responsible self-policing encouraged. This is not to say that Builder Inc. and Constructor Ltd. were singularly irresponsible. Rather, their safety programs reflected conventional industry thinking. Quite simply, accident prevention was not considered an integral part of the job site supervisor's managerial responsibilities because most accidents were deemed beyond his control. Safety department officials challenged this traditional view. More exactly, they championed the emerging professional safety movement's core idea—safety is manageable— by developing an administrative system over a 20-year period. The end result was a structure of responsibility, a structure that altered management's orientation in significant ways, particularly by nurturing and developing a strong sense of responsibility for occupational safety. Let us now examine some of the major steps safety department officials took. The Professional Challenge In a recent study of coal mine safety enforcement, John Braithwaite identifies some of the major similarities of five successful corporate safety programs. One common feature he observed is that they "[m]ake sure that clearly defined accountability for safety performance is imposed on line managers." 28 Today, a principle of managerial responsibility is also the polestar of Builder Inc. and Constructor Ltd.'s safety programs. "Builder Inc. believes that line management is directly responsible and accountable for the success or failure of its safety efforts," state the opening pages of the corporate safety manual. "Just as Project Management is held accountable for productivity, scheduling, cost control, quality assurance, etc., so too are they held accountable for satisfactory safety performance." (My emphasis) 29 Twenty-five years ago such purposes were beyond the construction industry's range of vision; that is, accident prevention was generally considered outside the scope of management's responsibility. "In the construction industry," says a Constructor Ltd. official, "the concept that hazardous work can be performed without serious loss, that accidents are preventable, did not begin to take hold until the 1960s." "There was an adage in the indus-

107

Professionalism

and

Accountability

try," a Builder Inc. official recalls, "that accidents go along with construction." Construction companies used to bid jobs on the assumption they were going to have a certain amount of serious accidents. A norm in the high rise industry was a death a floor. And people just assumed that you couldn't build a power plant without killing a couple of people. Everyone took it for granted that these things are just going to happen because construction is a high risk business. For years we just didn't know we could control these things. An implication of the foregoing is that, in general, company personnel should not be held accountable for accidents. The image evoked is of an act of god. Just as earthquakes and tornados are beyond man's control, so too are construction site accidents. Thus, it is not difficult to see why there was "just an incredible lack of accountability in the area of safety and health," in the words of a Constructor Ltd. safety department official. "That was the real problem," he continues. "Superintendents did not consider safety an important element of doing business; it wasn't a part of good construction management, like good engineering or good procurement practices. I'm not painting our superintendents as wearing black hats [for their attitudes simply reflected the construction industry's general outlook]. I'm simply talking about their prioritization of job needs. And safety wasn't there." At Builder Inc. and Constructor Ltd. safety department officials challenged the conventional view and placed occupational safety in a new light. "We came to the realization that accidents could be controlled to a much greater extent than had been assumed previously," a Constructor Ltd. safety department official recalls. That's when we started really doing something about safety. We came to learn that we could sure as hell control our destiny. We could plan the work and include safety into the planning and have fewer accidents as a result. What I'm really talking about is the whole concept of safety management—that accidents are preventable. It was a seed that got planted and began to develop in the mid-1960s. There came to be a realization that accident costs are a controllable cost, and that through the application of the basic principles of management that much can be done to

108

Professionalism and Accountability

reduce the numbers of accidents and the resulting costs. emphasis.)

(My

What caused this change in attitude? The safety department official offers this answer: "It was about that time that we in the safety department started considering ourselves to be, I'll say, emerging professionals." It was also about that time, the mid-1960s, that the safety movement's professional aspirations began emerging.30 The paralellism is not coincidental. Nor did the influence of these developments pass over Builder Inc. In the mid-1960s, a Builder Inc. safety department official recalls, "The safety department's attitude really started to change. We realized that something could be done to bring accidents under control; it was something we could manage." 31 To put this development in more general terms, as self-styled "emerging professionals" safety department officials at Builder Inc. and Constructor Ltd. developed close ties with a distinct body of professional commitments, skills, and aspirations—Safety Management—and carried these outlooks and ideals to their respective companies. In doing so, they challenged their industry's prevailing beliefs regarding accident prevention by championing the safety movement's fundamental principle—safety is manageable—thus setting the stage for a new course of administrative development in Builder Inc. and Constructor Ltd.'s safety programs. Building a Structure of Responsibility The vast literature on corporate responsibility devotes a great deal of attention to corporate ethics and what the policies of responsible companies should be. 32 By contrast, little attention has been given to the internal compliance systems designed to ensure that such policies are put into practice, 33 and even less as to how government regulation has affected the development of those systems. 34 With these broader considerations in mind, it is well worth examining the key steps safety department officials took to develop a structure of responsibility within Builder Inc. and Constructor Ltd. What does it mean for a company to behave "responsibly?" According to Christopher Stone, whose writings provide one of the fullest and most thoughtful discussions of the issue, to identify the

109

Professionalism

and

Accountability

major components of a responsible organization we should first consider what it means to be a responsible individual and "then ask how those patterns of conduct can be institutionalized into an organization": To begin with, responsible persons are ones who, at the least, think before they act, not only about the benefits to themselves, but also about the effects their actions are likely to have on others. They gather and take into account information bearing on distant consequences, on how their choices will impact neighbors and neighborhoods. They weigh alternatives with reference to certain socially sensitive categories, e.g., "right," "wrong," "harm." . . . If a responsible individual is one who looks before s/he acts, who traces out consequences, the responsible corporation is one whose bureaucratic structure, information-gathering protocols, etc., are similarly oriented. The key task is to make bureaucracies think like responsible individuals. 35 On this view, the structure of an organization's information system and decision-making process is critical. "Responsible behavior," as Stone writes, "begins with perception. The responsible person observes phenomena the irresponsible person ignores." Stone then poses the following questions: "[I]s there, in the arena of corporate behavior, an analogue of an "irresponsibility" that owes to inadequately perceptive corporate behavior? And if so, are there variables associated with the organization's "perception" that can be identified and manipulated in such a manner as to increase the corporation's responsibility?" 36 Safety department officials at Builder Inc. and Constructor Ltd. have been dealing with such questions for the past twenty years, and in doing so, have restructured their companies' information systems. In fact, the first steps safety department officials took to develop a structure of responsibility centered on the organization's information system. Before 1960 neither company had a reliable system for reporting accident information. "The effort to establish a company-wide reporting system," according to a Constructor Ltd. safety department official, "commenced around 1959." However, he continues, "the reporting was pretty casual, almost optional. You just have to recognize where the safety movement was at the time, and the pri-

110

Professionalism

and

Accountability

ority the project superintendent assigned to filling out yet another goddamn report for some safety guy in headquarters. It was certainly down towards the bottom of the need to do list. So a lot of times the safety department didn't receive the data. It was very spotty." Only when the safety department's "emerging professionalism" began to manifest itself in the mid-1960s did Constructor Ltd. take steps to develop an effective accident information system. By 1965, he continues, "We in the safety department decided that we simply had to bring some attention to the poor performers. So we did that. . . We got the reporting system organized to the point that the safety department was getting all of the data, from every project, in a timely manner." By regularly collecting a range of safety-related data from the projects (such as lost time accidents, first-aid cases, and workers' compensation claims, as well as the number of safety meetings held, their topics, and who attended) safety department officials for the first time developed a real picture of how safety programs were functioning at the job sites. It is one thing to gather information; it is quite another to put it to use. Because lack of accountability for accidents was a major problem, Constructor Ltd. safety department officials soon put this information to use by establishing a rudimentary system of accountability. "By getting uniform reporting from the field," as one safety department official puts it, "we introduced an oversight process." This was done by compiling the data collected from the projects, rank-ordering job sites in terms of their safety record, prominently displaying the name of each project superintendent, and issuing a monthly report to senior management officials as well as all the project superintendents. As a result, project superintendents, senior management officials, and safety department officials were made regularly aware of each project's safety performance and how it compared with all the other projects in the company. Far more important, though, such comparisons established a normative benchmark of sorts by calling attention to those at the bottom of the list. "If a job had injury rates well above the norm," says a Constructor Ltd. safety department official, "then the project superintendent had to respond as to what was going o n . " More to the point, changes in the reporting system enabled Constructor Ltd. to begin distinguishing between "good" and " b a d " safety per-

Ill

Professionalism

and

Accountability

formance within the company. Thus, the organization had acquired new powers of self-perception. "Responsible behavior begins with perception," as Christopher Stone puts it. Beyond that, though, "A responsible person . . . acts with an awareness that he will be accountable for what happens." 3 7 Much the same can be said for corporate responsibility. In his study of successful coal mine safety programs, for example, Braithwaite found that the five companies he observed "avoid the problem of diffused accountability" in various ways, particularly by monitoring safety performance carefully and letting managers know when it is not up to standard. 38 The administrative experience of Builder Inc. and Constructor Ltd. demonstrates a similar pattern. At Constructor Ltd., for example, in 1966 safety department officials changed the reporting system in a relatively minor yet significant respect, in order to nurture and develop the project superintendent's sense of responsibility. A safety department official describes the change in these terms: We decided that the safety department was not the best vehicle to use to disseminate the monthly report information. That having it come from the project superintendent's division manager would really get the superintendent's attention. So the safety department compiled the information, sent it to the division manager, and had him send it to his project superintendents. Having the division managers send out these reports started giving them a lot more clout . . . In terms of accountability having senior management send the report to the projects has been one of the real strengths of the reporting system. 3 9 In most significant respects Builder Inc.'s information system reflects a similar pattern of development. 40 In the late 1950s, the safety department began collecting accident data from the projects and compiling a monthly safety report. The format and function of the report resembles Constructor Ltd.'s; it lists all the job sites from best to worst, with the name of each project superintendent, and also provides a statistical profile of job site accidents—the number of accidents (loss time and non-loss time), their frequency and severity, and the number of days lost. "The most important function" of the early reporting system, says a Builder Inc. official, "is that the project superintendent knew that that report went to all the top

112

Professionalism

and

Accountability

people in the company." 41 In other words, it pointed a finger at superintendents with a poor safety record and brought some management pressure to bear upon them. "If a job was way off base compared to the accident record of other projects the construction manager knew that a vice president was looking at it, and the vice president knew that an executive vice president was looking at it, and he knew that the president was looking at it. So the pressure filtered down the organization, and the project superintendent would definitely feel at least some pressure." Thus, like Constructor Ltd., the early accident reporting system added a new dimension of self-awareness, along with new motivations and incentives, by drawing a rudimentary distinction between "good" and "bad" safety performance for the first time in Builder Inc.'s then 60-year history. Accountability Versus Responsibility The institutionalization of a precarious organizational value requires social support within the organization. It is central to recognize, though, that the nature of that support can vary both in terms of breadth and depth. While the extent of support may range from a single individual or group to a broadly based coalition, the intensity or quality of support can vary from minimal commitment to the value at stake to a deep-seated sense of obligation. It is also important to note that the quality of interest and support required for a deep-seated organizational commitment to a social value is not easily elicited through accountability mechanisms alone, such as Builder Inc. and Constructor Ltd.'s reporting system, because responsibility is something more than accountability. "To be accountable is to be held responsible, but the responsible enterprise is known by an inner commitment to moral constraint and aspiration." 4 2 In other words, "responsibility comes from within and accountability comes from without." 4 3 Viewed in these terms, the preceding discussion has shown that professional safety management is less concerned with establishing accountability, important though that is, than with stimulating initiative and eliciting responsibility. 44 At base, the safety professional's task is to nurture and develop management's sense of responsibility for occupational safety.

113

Professionalism

and

Accountability

To illustrate, consider Builder Inc. and Constructor Ltd.'s administrative development. "One of the safety department's guiding principles," says a Constructor Ltd. safety department official, "is that safety is a management responsibility; safety is one of the essential elements of doing business, part of the whole construction process, like good engineering, good supervision, and good procurement practices . . . If an accident occurs that means the manager has failed to manage properly, that they did not meet their supervisorial responsibilities. I would be untruthful," he is quick to point out, "if I told you that even today that that is totally accepted throughout Constructor Ltd." Nevertheless, he adds, "That's where our safety program has been pointing." It is also the direction Builder Inc.'s safety program is pointing. "Builder Inc. believes that line management is directly responsible and accountable for the success or failure of its safety efforts," the corporate safety manual states. "Just as Project Management is held accountable for productivity, scheduling, cost control, quality assurance, etc., so too are they held accountable for satisfactory safety performance." Why must managers take responsibility for safety? Because, the manual explains, "It is good business to prevent injuries and illnesses." In other words, "Accidents have a great impact on the economic success of any company. Direct costs of accidents are exceeded by hidden or indirect costs." 45 The essential thrust of these policy pronouncements is twofold. One is that management, especially project superintendents, must take responsibility for safety because accident prevention is an integral part of good construction management. The other is that accident prevention is an essential element of doing business (like a company's engineering, scheduling, and procurement practices) because it is a factor of production that affects business productivity. The principle of managerial responsibility is thus intimately associated with and largely warranted by an all-important factual premise: Because safety performance affects the company's "real business," because it is a significant factor of production, management must take responsibility for accident prevention. Yet, as we have already noted, there was a time when project supervisors at Builder Inc. and Constructor Ltd. did not view safetyrelated matters as a significant factor of production. As a practical matter, it would be very difficult under these circumstances to nur-

114

Professionalism and Accountability

ture and develop their sense of responsibility for occupational safety. With these considerations in mind, it is little wonder that safety department officials created new administrative mechanisms to put occupational safety in a new light. An understanding of how safety department officials facilitated management's consideration of occupational safety as a factor of production, particularly by highlighting accident costs and emphasizing the economic benefits of accident prevention, is therefore essential to understanding the development of enterprise responsibility at Builder Inc. and Constructor Ltd. Workers' Compensation as a Safety Management Tool At one time Constructor Ltd. and Builder Inc.'s information systems neither measured nor reported the costs of accidents. With the possible exception of the occasional disaster, project superintendents received no feedback on the economic consequences of their job site safety records. Not surprisingly, job site accident rates and the company balance sheet seemed unrelated. In the late 1960s and early 1970s, however, safety department officials at Builder Inc. and Constructor Ltd. took a major step to change this by transforming the workers' compensation system into a safety management tool. Until the late 1960s workers' compensation costs and accident rates were "independent," as a Constructor Ltd. safety department official puts it. "The safety department wasn't sophisticated enough to really be able to identify the correlation between accident rates and workers' compensation costs and talk knowledgeably about it to our management." 46 By the late 1960s, however, "We in the safety department began to realize that accident costs were a controllable cost," says a Constructor Ltd. official, "and that they could provide a competitive advantage through very favorable [workers' compensation] experience modification rates developed over a period of time. So I think there was just a growing realization that we had to identify for our management and for supervision the costs that were attributable to accidents on the job." Prompted by this "realization," safety department officials modified Constructor Ltd.'s reporting system in 1969 to include workers' compensation insurance costs for the first time.

115

Professionalism

and

Accountability

At the same time, similar changes were taking place at Builder Inc. By modifying the company's information system to include workers' compensation costs, a Builder Inc. official recalls, "we were able to come up with a very definitive figure of what insurance costs were on each of the jobs." More than any other change in the reporting system, he adds, "I think that opened up management's eyes the most": When we were able to include actual dollars and cents charged against a specific project, I think that made our report a lot more meaningful, much more so than the other statistics— frequency rates, severity rates, or anything else. It translated those figures into something everybody in the company understood—dollars and cents. On some small jobs, if you make two or three hundred thousand dollars, that's a pretty good profit. And then if you see that you lost a hundred and fifty thousand on accident costs, it makes people stop and think; you really only made a hundred and fifty thousand. The ability to measure and report workers' compensation costs, another Builder Inc. safety department official explains, enabled "the safety department to get on the ball and show management that safety is not only a humanitarian thing but a significant economic issue." 4 7 Today, according to Builder Inc. and Constructor Ltd. safety department officials, workers' compensation costs are a "real driving force" in their safety programs. What accounts for the system's prominent regulatory role, first of all, are changes in the workers' compensation system itself—namely, the rapid rise in premium costs since the mid-1970s. As insurance costs rose, explains a safety department official, the safety program "began to look better and better in terms of cost effectiveness." However, the rising costs of workers' compensation insurance is only half the story. The other half is the safety department's professional development. As an institutional arrangement for compensating workers and internalizing costs, it is important to stress that the workers' compensation system functions as an information system sending economic signals to the employer—as accidents increase so do company costs. But it is also important to note that these economic signals may fall on deaf ears, as when a job site safety program functions "independently" of workers' compensa-

116

Professionalism and Accountability

tion costs, such as Builder Inc. and Constructor Ltd.'s administrative experience before 1970. To put the matter another way, prior to 1970 the system transmitted economic signals that from the standpoint of corporate decision-makers resembled a random sequence of data, rather than an ordered array of useful information that could direct their decisions. 48 In the examples just cited, safety department officials at Builder Inc. and Constructor Ltd. converted this data into information. This last point is critically important because it illustrates how safety department officials developed the administrative means to use these economic signals as a safety management tool. In this way, by highlighting job site accident costs and facilitating consideration of occupational safety as a factor of production, the workers' compensation system thus emerged as a "real driving force" in Builder Inc. and Constructor Ltd.'s safety programs. This leads to the conclusion that the workers' compensation system represents an important regulatory resource. But how that resource is utilized, if at all, can greatly depend on the administrative initiative and know-how of those in the company who are professionally committed to advancing the regulatory objectives latent in the workers' compensation system. Considered more broadly, it illustrates the interaction of two regulatory spheres—the workers' compensation system and the professional safety movement—and how their operation is conditioned by a process of reciprocal influence. Beyond Workers' Compensation The argument up to now has been that the safety department's professional aspirations advanced the development of enterprise responsibility at Builder Inc. and Constructor Ltd. in significant ways, and that in this process the workers' compensation system has played a key role. In attempting to understand the regulatory role of workers' compensation, though, it is also important to consider the system's limitations, and how those limitations are being addressed by the professional safety movement. If the workers' compensation system has a significant deficiency as a safety management tool, it is that the system measures only a fraction of a company's total accident costs. Hence, the sys-

117

Professionalism

and

Accountability

tem does not reflect the full significance of accidents (and accident prevention) as a factor of production. Hence, the system does not stimulate, totally and completely, management interest and support in the safety program. Acting upon this assumption, as we will see in a moment, Constructor Ltd. safety department officials recently adopted a new administrative tool to address this limitation. To understand the limitations of workers' compensation, it is first necessary to consider the nature of accident costs, which can be divided into two types: insured or "direct" costs and uninsured or "hidden" costs. Workers' compensation premiums reflect the first type—that is, benefits paid to the victim of the accident and the administrative overhead the insurance company charges for handling the claims. On the other hand, there is a range of accident-generated costs not covered by the workers' compensation system and therefore not reflected in premium costs, including the cost of overtime necessitated by the accident, the costs of breaking in a replacement worker, and so forth. 49 Although there is no doubt among students of accident costs that uninsured costs are greater than the insured costs of accidents, there is less agreement as to how much greater, with estimates ranging from a ratio of 4 to 1 to as high as 17 to l. 5 0 To measure the "total" costs of accidents, uninsured as well as insured, in 1981 Constructor Ltd. safety department officials adopted the "Accident Cost Accounting System." Developed by Michael Robinson of Stanford University's Department of Civil Engineering, this new administrative tool represents a prime example of the professional safety movement's major ideology—Safety Management. This means that the system's essential purpose is not merely to measure accident costs. Rather, it is to facilitate consideration of accident costs as a significant factor of production, thereby strengthening management's interest in the safety program. 51 For this reason above all that Constructor Ltd. safety department officials adopted the new tool. As Constructor Ltd.'s safety manual explains in a section titled "Motivating People to Improve Safety": It often seems that an established company policy of reducing accidents and improving safety is ignored. Safety is all too of-

118

Professionalism and Accountability

ten viewed as more of a nuisance and an impediment to company profits on a job rather than a means of promoting efficient and productive work operations. Before meaningful improvements in company safety can be achieved, these misconceptions about safety must be overcome. The Accident Cost Accounting system brings accident costs into full view and effectively demonstrates the cost impact of accidents on the company. By giving accident costs visibility, the system provides company managers at all levels with the stimulus to institute effective accident cost control measures. (My emphasis.) 52 A Constructor Ltd. official offers another example: "Every time a guy goes to the doctor you're looking at twelve hundred dollars; that's for one visit. The average medical case costs the company eighteen hundred dollars." The Accident Cost Accounting System became an integral part of Constructor Ltd.'s accident reporting system. Every month the job site safety engineer would send a one page "Accident Cost Accounting Report" to safety department headquarters. This report calculates a project's "total" accident costs for that month, for the year to date, and job inception to date in terms of total dollars as well as dollars per man-hour worked. After incorporating this accident cost data into the safety department's monthly safety report, safety department officials then send a copy to senior management officials, who in turn send it to project superintendents. Under the changed system, reported accident costs tripled. It is not surprising, therefore, that Constructor Ltd.'s reporting system aroused a new level of interest in safety-related matters. "We've got jobs where the Stanford loss costs are greater than our profit for the job," a Constructor Ltd. official observed. And because of such figures, he continued, "we now have our senior management, the job superintendents' big bosses, much more actively involved. They are really hammering the superintendents on these costs." This example makes clear that safety department officials developed an important new administrative tool. It also suggests that key decision makers throughout Constructor Ltd. are now induced to take accident prevention more seriously than ever before, and to alter their commitments accordingly, since accident prevention is now seen as a truly significant factor of production, much more so than management had otherwise realized when only

119

Professionalism

and

Accountability

workers' compensation costs were reported. Hence, the evolution of enterprise responsibility at Constructor Ltd. has now reached a new level.53

Participation In recent years, a leading theme in the study of organizations has concerned the role new avenues of participation can play in the process of organizational development, particularly in eliciting the social support required to institutionalize a precarious organizational value.54 Here we briefly note some of Builder Inc. and Constructor Ltd.'s efforts along these lines simply to understand the overall administrative development of their safety programs. One example is Constructor Ltd.'s "Safety Marshal Program." Developed by the safety department and established as a corporate-wide policy in 1973, the program's essential purpose, according to a company memorandum, is educational, "to increase the involvement of supervisors/engineers in the Company safety program by increasing their familiarity with applicable safety, health, and fire protection regulations, and enhancing hazard recognition and the correction of unsafe acts and conditions." As a safety department official explains, "We needed to establish a better level of dialogue and understanding among the supervisory people about the safety department's mission—the actual job of the safety department, the kinds of problems we have to deal with, and the need for safety." To illustrate the point, he offers this example: We play a little game with the safety marshals: We never put them in their own work area at first. Rather, we first have them inspect other areas of the job site with our safety staff so they begin to look at things from the safety department's eyes. And the realization comes to a lot of them that, "Hey, most of these problems that get passed down to safety I can take care of." When we get them up to speed we turn them loose, and God, just a lot of them can find all kinds of problems in those other areas. Then, for the final exam so to speak, we put them back in their own area. It's worked successfully because there's an almost universal recognition of Pogo's aphorism—'We have met the enemy and they is us.' 55

120

Professionalism

and

Accountability

Builder Inc. has also increased management's involvement in job site safety programs. In 1982, for example, a new corporate policy initiated at the safety department's recommendation requires the project superintendent personally to conduct a weekly safety inspection and report the results to the home office. "It gives management at the home office the opportunity to see what the superintendent is doing for the safety program on a week to week basis," a Builder Inc. official explains. From one perspective, participation thus promotes accountability. Yet seen from another angle, the policy also serves an equally important educational purpose. "The hope is that the superintendents will eventually go out into the field and include safety as a part of their daily management scheme and responsibility," a safety department official explains. If nothing else, in other words, increased participation will also increase responsible self-policing among project superintendents. 56 In addition, it is worth noting that Builder Inc. was widening the avenues of management participation to include other job site supervisors as well. In general, participation in Builder Inc. and Constructor Ltd. safety programs has been expanding in recent years. It would, of course, be an overstatement to say that this development has broken down all formal barriers to communication or has completely socialized line supervisors in the safety departments point of view. At the very least, though, with line and staff sharing authority in these ways, there is evidence to suggest that new avenues of participation have encouraged job site supervisors to assume greater responsibility for the safety of workers. And that, as we have seen, is an essential goal of the professional safety movement. Emerging

Trends

We have been discussing the numerous administrative changes safety department officials have implemented to increase management's sense of responsibility. More broadly, we have been discussing their pursuit of professional safety management's ultimate goal: building a sustained and effective commitment to occupational safety into the company's overall management system. Let us conclude our discussion by observing the latest phase of this development. According to safety department officials, there is little doubt as

121

Professionalism

and

Accountability

to the next stage in this course of administrative development. To "close the accountability loop," as a Constructor Ltd. safety department official puts it, personnel policies need to be modified to include a job site supervisor's safety performance in his annual performance evaluation. As far as I am aware, as of 1985 only two major construction companies had taken that step. One is Builder Inc. At Builder Inc., 20 percent of a supervisor's annual performance evaluation is based on his safety performance. The policy extends to all company personnel with line authority on the job site, including the project superintendent. Although the evaluation is done by the employee's immediate supervisor, it is based on "objective" and "subjective" data supplied by the safety department. 5 7 Not only does the annual performance evaluation affect the supervisor's future career opportunities with Builder Inc., it also determines the amount of his annual salary bonus. Obviously, supervisors do not take the evaluation lightly. The policy change occurred in 1982 at the request of Builder Inc.'s corporate safety manager. "I brought up the idea to the president of one of our divisions who has the lion's share of construction activities," recalls Builder Inc.'s corporate safety manager. " H e and I discussed it, and he said that it was a helluva an idea." According to the corporate safety manager, no resistance was encountered from upper management in pushing the policy change through. To the contrary, he says, "the division president took the ball and ran with that concept; he developed it." In view of the fact that this policy represents something of a breakthrough in the construction industry, upper management's active support for the change is striking. The reason it received such a favorable reception will be examined in a moment. While Constructor Ltd. has not adopted such a policy, safety department officials was beginning to lobby for the change. "But you have to recognize that this is a major step, and it's one that's fraught with danger," a safety department official observes. Just why it is fraught with danger, he goes on to explain, is that construction supervisors will undoubtedly balk at the very idea of the safety department's involvement in their performance evaluations: I wouldn't want a site manager having input into my performance evaluation. That's always been something that's been divined from on high. Never before has anybody other than the

122

Professionalism and Accountability

direct supervisor had input into the recommendations. And getting somebody from the outside, especially in an area where you may not be performing as well as you might, is going to create a lot of problems. I can hear their reaction right now: "No goddamn safety man is going to have a handle on my bonus." In view of the resistance Constructor Ltd. safety department officials expected to encounter, and considering that such a policy is far from being a standard industry practice, why was the proposal so favorably received by Builder Inc.'s upper management? The reason was a merger. In 1982 Builder Inc. was acquired by a chemical manufacturing company, and the new parent company introduced a new "safety philosophy" into Builder Inc., according to safety department officials. Says one official, "The parent company's top people came to our headquarters and gathered the management people together in our meeting rooms [including project superintendents] and told them how the cookie crumbled. They told us that this is their company's philosophy, that we are now a part of their company, so this is our philosophy." The parent company, as another Builder Inc. official puts it, told management what they wanted and management did it. The chairman of the board of the parent company even produced an eight minute tape that says everyone in the organization must adhere to very stringent safety rules and regulations. On top of that, they must have a commitment to safety, adhering to the rules is not enough; they must have a commitment that goes far deeper than that. The parent company's philosophy in safety is so strong that they will just not tolerate mediocre performance. They just simply want us to be the very best in the industry. As a result of the merger, attitudes toward accident prevention changed within Builder Inc., for safety department officials and management alike. "The merger," says a top Builder Inc. safety department official, "opened my eyes a great deal. I realized that safety is more manageable than I ever dreamed of": The parent company simply does not accept management performance that allows accidents. They feel that safety is just as much a part of their business as any other aspect of their busi-

123

Professionalism

and

Accountability

ness. They go under the premise that each accident is preventable. We in the safety department accepted the parent company's philosophy and realized that there didn't have to be so many accidents. In fact we could shoot for zero, accept some level of tolerability, and then take that level and work on that level . . . Until we reach absolute bottom, we are simply not going to stop—and we don't know where the bottom is. This higher level of aspiration introduced by the parent company's "safety philosophy" is an authoritative part of Builder Inc.'s safety program. "All injuries are preventable." (Emphasis in original.) Builder Inc.'s corporate safety policy states: This is a realistic goal, not a theoretical objective. Utilizing this premise, accidents can be prevented. All workplace exposures which may result in injuries can be controlled; no matter what the exposure is, an effective safeguard can be provided. It is preferable to eliminate the source of hazards. Where this is not possible or practical, supervision must specify measures such as special training, safety devices and protective clothing. The merger changed management as well as safety department attitudes. Before the merger, says a top safety department official, we did get upper management backing in the form of nobody really getting in our way. The safety department was able to do what it needed to do as long as that coincided with existing or industry standards. Upper management never told us how to do our job, or what needs to be done. They just let us do what we felt was necessary, and gave the safety department pretty much a free reign. But there was really no direction from management as far as what course we should take, and how much emphasis we should put on safety, that type of thing. The merger, he continues, changed this by increasing upper management's guidance and support for the safety program. The parent company has a very definite managerial concept of what they want in terms of safety and how they are going to get there. Everybody from the top down is accountable, regardless of who they are or the position they have. That opened a lot of management's eyes, especially when the parent company's top management came here and personally related their views on safety to the company—our project superintendents, our vice presidents, division managers.

124

Professionalism

and

Accountability

You've got to realize that Builder Inc. had a good safety program before that. We in the safety department knew what we wanted and what needed to be done. It's just that the merger made things a whole lot easier. Another safety department official sums up the merger's significance in these terms: "In the past the safety department had to push push push to get safety in its rightful place in the company. Now the pressure is coming from the top down, from management." The merger thus helps to explain why Builder Inc., almost alone among major construction companies, developed a policy to include a supervisor's safety record in the annual performance evaluation. The merger also explains why Builder Inc.'s upper management has been willing actively to support the change. Management, as a Builder Inc. official puts it, had their "political antenna up; they knew what the parent company wanted." At the same time, though, safety department officials emphasize that the new evaluation policy, plus the other changes in the safety program triggered by the merger, should not be viewed as a radical change in the company's overall safety program. Such a conclusion would mask the fact that safety department officials have been pursuing this course of administrative development for years—that is, building an organizational commitment to occupational safety. What the merger did do, they say, is greatly accelerate that process of development. To see why the merger accelerated the safety program's administrative development, it is essential to recognize that the "safety philosophy" of both corporate safety programs is ultimately based on the same body of professional norms—that is, Safety Management. It is also important to note that not all industries or companies have institutionalized these principles to the same degree, and that safety programs in the chemical and aerospace industries are widely regarded to have institutionalized safety management principles to a greater extent than most other industries, probably because of the catastrophic potential of the hazards involved. Correspondingly, more than any other industry group, the safety professionals from these two industries have been at the vanguard of the professional safety movement. By contrast, the construction industry has been relatively slow

125

Professionalism

and

Accountability

to institutionalize the safety movement's body of professional norms, which helps to explain why Builder Inc.'s acquisition by a chemical company accelerated the development of Builder Inc.'s safety program. In effect, the merger introduced a more fully developed or "mature" body of professional norms, indigenous to the chemical industry, into a comparatively underdeveloped or "immature" industry, construction, thereby quickening the latter's pace of development. The merger thus represents an inter-industry transplant of indigenous regulatory systems.

Summary We have been discussing the evolution of two corporate safety programs to set the stage for analyzing the CCP's success. Beyond that, though, we have also been discussing the question of regulatory impact—how government regulation actually influences the systematic practices of regulated firms. In exploring this neglected area of research on regulation, we have stressed the significance of regulatory pluralism. As the preceding discussion of Builder Inc. and Constructor Ltd.'s administrative development has shown, a firm's regulatory environment has a multiplicity of sources, that is, significant counterparts or analogues to direct government regulation can be found in other locations in society—socio-economic networks, corporate safety programs, the workers' compensation system, the professional safety movement. The importance of these indigenous regulatory factors cannot be overstressed. As the preceding discussion strongly suggests, if we are to understand how government regulation works in society, how it influences the operation of regulated firms, and what the actual regulatory system looks like, it is essential to highlight how these regulatory spheres interact. Otherwise, a significant dimension of regulatory experience may well be overlooked. Our argument up to now has been that these regulatory forms—public and private, external and internal—have advanced the development of enterprise responsibility at Builder Inc. and Constructor Ltd. in a crucial respect—that is, by strengthening management's commitment to occupational safety. The important point to note in conclusion concerns the role of labor in these de-

126

Professionalism

and

Accountability

velopments. It is one thing to harness management's involvement in the safety program; it is quite another to harness labor's. It is scarcely an exaggeration to observe that the administrative developments discussed up to this point totally exclude labor involvement. It is important to stress this fact. Partly it underscores the one-sided administrative development of these safety programs. Partly, it is crucial to understanding the CCP's success.

NOTES 1. D. Petersen and J. Goodale, eds., Readings in Industrial Accident Prevention (New York: McGraw Hill, 1980), 284 (hereafter cited as Readings). 2. American Society of Safety Engineers, "Status of The Safety Professional: 1975," 7. 3. American Society of Safety Engineers, "ASSE Bylaws" (1983-84), Article II, Secs. 1 and 2. 4. "ASSE Bylaws" (1983-84), Article III, Sees. 4 and 5. 5. American Society of Safety Engineers, "1983-84 ASSE Resource Guide," 20. 6. Sixty percent of the ASSE's "Professional Members" are CSPs, for example ("Status of the Safety Professional: 1981"), and 19 of 26 members on the ASSE's Board of Directors are CSPs as well ("1983-84 ASSE Resource Guide," 3). 7. "To be quite frank," he adds, "there was also a certain amount of selfishness involved as well. If you establish the fact that you're actually a professional your salary structure improves; and it has resulted in a considerable step up in salaries." For example, a 1981 ASSE survey indicates that Certified Safety Professionals had a median salary $4,000 above those without certification (American Society of Safety Engineers, "Status of the Safety Professional: 1981"). 8. As an ASSE publication notes: With the 1983 accreditation of the Safety Sciences bachelors degree program at Indiana University of Pennsylvania, ASSE took the first step to become the recognized accrediting body for college and university baccalaureate programs in occupational health and safety in the United States. Through its accreditation activity, ASSE seeks to maintain a high standard of preparation for men and women entering the safety profession and to assure that the content of academic programs is relevant to the needs of the safety profession it serves. (My emphasis.) ("1983-84 ASSE Resource Guide," 20). 9. William E. Tarrants, "Editorial," reprinted in Readings, 286. 10. E.C. Hughes, "Professions," in K.S. Lynn, ed., The Professwns in America (Boston: Houghton Mifflin, 1965), 2. 11. F.E. Bird and H.E. O'Shill, "The Principles of Loss Control Management," in Readings, 122.

127

Professionalism

and

Accountability

12. A leading textbook in the field of safety describes the safety education model in the following terms: Safety is frequently considered to be simply a matter of dealing with individuals. They may be approached en masse (for example, taught in groups, stimulated by advertising techniques, and guided by national standards), but commonly the aim is to make the individual aware of his or her safety responsibility and informed about how to satisfy it so that on his own initiative he will do what is necessary to avoid injury . . . This individualization [of safety is] often described as "safety education." (Emphasis in original.) (R.H. Simonds and J.V. Grimaldi, Safety Management, 3d ed., [Homewood 111.: R.D. Irwin, 1973], 350.) 13. Petersen and Goodale, Readings, 108. 14. W.C. Pope and T.J. Cresswell, "A New Approach to Safety Programs Management" in Readings, 113-14. 15. Ibid., 108. 16. Ibid., 112-13. 17. "To continue this debate," another exponent of Safety Management has written, "serves only to continue to obscure the reality of the situation and perpetuate the adversary system in an area that cries out for a unified cooperative approach . . . If accidents are going to be reduced the errors that produce them have to be reduced—and by everyone at all levels in the organization." The real task, in short, is "to operate the organization with a minimum of error." (J.W. Jeffries, "Unsafe Acts vs. Unsafe Conditions," Readings, 24). 18. Pope and Cresswell, in Readings, 108, 114. 19. The ASSE's definition of the safety professional, which strongly reflects the Safety Management model, includes the following description of his "major functions": Review of the entire [organizational] system in detail to define likely modes of failure, including human error, and their effects on the safety of the system . . . Isolation of potential weaknesses found in existing policies, directives, objectives or practices . . . Communication of hazard control information to those directly involved, including the management, planning and motivation necessary to integrate safety considerations into operations (ASSE, "Functions of the Professional Safety Position"). 20. ASSE, "Status of the Safety Professional: 1981." 21. M.S. Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977). 22. Philip Selznick, Leadership in Administration (New York: Harper and Row, 1957), 119-33. 23. OSHA's creation, plus a rapid growth in the volume of construction business in the early 1970s, expanded the safety department's opportunity to recruit more safety engineers. 24. Salaries provide a revealing benchmark of the status change. As the safety engineer's corporate status rose so did his salary. "I remember the first field safety man we ever hired," says a Builder Inc. official. "That was back in 1957. He was paid right around the mini-

128

Professionalism

and

Accountability

mum wage . . . In the 1960s it got a little better. But not much." Indeed, the job site safety engineer was so poorly paid that his salary about equaled that of the job timekeeper, who is commonly viewed as "one of the lowest forms of life on the job," in the words of a Constructor Ltd. official. During the 1970s the safety engineer's salary rose rapidly, however, not only in absolute terms, but relative to other company personnel as a result of salary grade changes. Today, according to a Constructor Ltd. safety department official, a project safety supervisor is "among the top ranking people on the job in terms of their salary grade." Indeed, he goes on to say, "not too long ago we had a situation where we had a short-term job come up, and pulling people together for the job, the project safety supervisor's salary was higher than that of the project superintendent." In the past 15 years the job site safety engineer's salary grade has thus risen from the very bottom to near the top of the job site hierarchy. 25. Located in each major geographical area in which Constructor Ltd. conducts business, there are five regional managers, whose essential purpose in the words of a company official, is to provide a "senior level resource" to the field safety organization. Recruited from within the Company safety department "on the basis of performance and potential, regional managers are the safety department's high achievers. They've demonstrated effectiveness on a number of projects in different situations; the good job where you've got all the favorable elements, and on the difficult assignment. They've been able to achieve results where others would have failed." Regional managers are also chosen because they "show good managerial ability." Indeed, this points up their most important function. "Having that senior level resource available so they can monitor the jobs in a timely manner," says a Constructor Ltd. safety department official, "has been a major assist in the maturing of the safety department as a good well-managed organization." In other words, regional managers have contributed to the safety department's "maturation" by facilitating more centralized control. 26. Selznick, Leadership in Administration, 128-29. 27. Pope and Cresswell, in Readings, 108, 115. 28. J. Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (Albany: State University of New York Press, 1985), 41-71. 29. Likewise, on the first page of Constructor Ltd.'s corporate safety manual the company's President states: "It is our policy to take all actions necessary in engineering, planning, designing, assigning and supervising work operations to establish and maintain safe and healthful working conditions on our projects . . . It is the responsibility of each Constructor Ltd. manager and supervisor to effectively implement these plans." (My emphasis.) 30. Tarrants, in Petersen and Goodale, Readings, 284. 31. He goes on to explain how the professional safety movement played a role in this development, especially the ASSE and NCA safety committee, The NCA and the ASSE spurred a lot of movement towards professionalism in those years. Lots and lots of articles and papers were

129

Professionalism

and

Accountability

written by ASSE members and published in their monthly journal. And we all read that stuff. I guess we were all clamoring for new ideas and new programs. So we subscribed to everything and attended a helluva lot of conferences around the country. Starting from 1965 we had quite a budget just for seminars and professional development. More than any other organization, as we saw earlier, the ASSE spearheaded the safety movement's drive for professionalization, and Builder Inc.'s ties with the ASSE during this period were very close. Builder Inc.'s corporate safety manager says, "I was involved in the ASSE from the time I started to work for Builder Inc. And I worked my way up through the state chapter until I became its President." But it was the NCA's safety committee, he notes, more than any other group of safety professionals, that influenced the professional development of Builder Inc.'s safety department: One thing that really helped me, starting along 1966, was my association with the NCA. I was fairly new in the game as a safety manager and my association with the NCA helped a lot. During those years I represented Builder Inc. on the NCA safety group. There were some really top notch safety professionals in that group. We exchanged a lot of ideas and programs. One company would try something and, if it worked well, they would share it with the rest of us. So it wasn't as if we were reinventing the wheel with everything we tried within the construction industry. The NCA helped a great deal, more than any other single entity, in bettering our safety program. 32. See, for example, Tom L. Beauchamp and Norman E. Bowie, eds., Ethical Theory and Business (Englewood Cliffs, N.J.: Prentice-Hall, 1979); Richard T. DeGeorge and Joseph A. Pichler, eds., Ethics, Free Enterprise, and Public Policy: Original Essays on Moral Issues in Business (New York: Oxford University Press, 1978); Leonard Silk and David Vogel, Ethics and Profits: The Crisis of Confidence in America Business (New York: Simon and Schuster, 1976). 33. But see Braithwaite, To Punish or Persuade, 41-71. 34. But see Northrup, Rowan, and Perry, The Impact of OSHA (Labor Relations And Public Policy Series, No. 17, Industrial Research Unit, The Wharton School, University of Pennsylvania, 1978). 35. Christopher Stone, "Corporate Regulation: The Place of Social Responibility," in B. Fisse and P. French, eds., Corrigible Corporations and Unruly Law (San Antonio: Trinity University Press, 1985), 17. 36. Christopher Stone, Where the Law Ends (New York: Harper Colophon Books, 1975), 114,116. 37. Ibid., 114. 38. Braithwaite, To Punish or Persuade, 64-65. 39. The safety department official describes upper management's role in the reporting system in these terms: The report measures a project superintendent's safety performance for the month, from the current year to date, and from project inception to date. So there's a pretty clear picture of how the project is trending. On the basis of that information the Vice President's staff

130

Professionalism

and

Accountability

people prepare cover letters which are attached to the current monthly report. Then they send the report to the project. The cover letters are, generally, of three sorts. One type, for example, says, "Your project continues its outstanding efforts in the area of safety and health. Safety contributes to the success of the project." This makes everybody happy. Then there's the one that says, "Your project is approximately at the target. This should not be construed to mean your efforts are viewed as acceptable. You should examine your operations to see what else you can improve." Then there's the letter for the problem sites. Oftentimes it is simply a snowflake; not a formal letter, but a snowflake from a Vice President to a site manager which says, "I think you had better do something. And fasti" And "fast" is underlined three times with an exclamation point, with just an initial on the bottom of the note. That's a helluva lot more effective than a two page memo. For example, not long ago I got a call from a project superintendent site manager who had just received such a letter. He asked me, "Can you come down here and spend as much time as you think is necessary to get my ass out of hot water?" But I wasn't any too quick about getting down there because I wanted him to stew in his own juices a little bit. 40. One perhaps significant difference in Builder Inc.'s reporting system has been the routing of safety reports. Unlike the practice at Constructor Ltd., Builder Inc.'s safety department has always sent the safety report directly to the project superintendents. A Builder Inc. safety department official explains why in these terms: There's only so much you can get top management involved; there's a point where you're involving them in too much detail. Now the safety report is addressed to all the corporate officers, from the President and Chairman of the Board right down to all the project superintendents. They're all aware of who sees it. So I think to have a vice president send out the report, and write a cover letter to each one of his people in his division, that's asking him to get too involved in the details. So we never went that route. 41. He continues: When we put out that report it went right to the President and Chairman of the Board, all the officers of the company, and all the project superintendents. The distribution showed right on the report's cover. So a superintendent down in Tucson building a power plant knew that his record was being exposed, not only to his peers, all the other superintendents in the company, but all the management—his bosses, the vice president of his division, the whole thing. 42. Philip Selznick, "The Moral Commonwealth: Intellectual Foundations of Social Justice" (Prospectus), March 1982, unpublished, 35. 43. Eugene Bardach and Robert Kagan, "Conclusion: Responsibility And Accountability," in Bardach and Kagan, eds., Social Regulation:

131

Professionalism

and

Accountability

Strategies of Reform (San Francisco: Institute For Contemporary Studies, 1982), 348. 44. Pope and Cress well, in Readings, 113. 45. The policy's essential significance, explains a Builder Inc. safety department official, is that "management is responsible for safety . . . What it really means is that responsibility for a safety program is on the project superintendent's shoulders. It's his responsibility just as much as any other aspect of his job. The company is just not willing to tolerate mediocre safety performance in safety because we now look at safety as good business." 46. The safety department's lack of "sophistication" is illustrated by their resort to analogies in order to counter the company's "prevailing philosophy" toward insurance costs. "For years," says a safety department official, "we used the example of car insurance. We told them that if you have an accident the insurance takes care of it. But the bottom line is that if it was your fault, and in the case of workers' compensation it's always the employer's fault, your rates are going to go up, and if you have enough of them you're uninsurable." "But that," he adds, "never really hit home." 47. The official explained, We did this by tracking insurance costs and showing management the overall picture. We showed them that the company can't afford poor safety performance because the total raw dollar losses are too high. Up to that time if a project superintendent had a high accident frequency rate but was doing a good job in terms of productivity, then his safety performance didn't seem to matter much. But we showed the company otherwise—that this is big business and that we just can't tolerate a high accident frequency rate because of the workers' comp costs. (My emphasis.) 48. For a discussion of the distinction between data and information see, Jane Yarrow and Aaron Wildavsky, "Data Versus Information" (January-February 1980), mimeographed. 49. Other indirect costs might include: (1) Transportation of injured worker to medical facility. (2) Wages paid to the injured worker for time not worked. (3) Wages paid to other workers for time not worked. (4) Cost of loss of crew efficiency. (5) Costs to clean up, repair, or replace damage from the accident. (6) Extra wage cost to rehabilitate the returning worker at a reduced capacity. (7) Costs to reschedule work. (8) Costs of wages for supervision associated with the accident. (9) Costs for safety and clerical personnel to record and investigate the accident. R.E. Levitt, H.W. Parker, and N.M. Samelson, "Improving Construction Safety Performance: The User's Role," Technical Report (Department of Civil Engineering, Stanford University, 1981), 1 4 - 1 5 . 50. Michael Robinson, Accident Cost Accounting as a Means of Improving Construction Safety, Technical Report No. 242 (Department of Civil Engi-

132

Professionalism

and

Accountability

neering, Stanford University, 1979), 16 (hereafter cited as Accident Cost Accounting). 51. Accident Cost Accounting, 4 - 5 . The aim of the Accident Cost Accounting System, above all, is to build a sustained and effective organizational commitment to occupational safety. "The principle which underlies the approach," as Robinson puts it, "is that safety is most effective when 'mainstreamed' or fully integrated into company operations." By "mainstreaming safety," a company goes "beyond having a safety program per se," and "is guided by a safety principle, which is that safety be included as an integral part of all other programs . . . [I]f safety is made an integral part of construction operations it stands a better chance of getting more serious attention at more levels of supervision . . . The idea is to facilitate this consideration at all levels within the organization—especially right down through direct supervision to the worker." 52. The heart of the Accident Cost Accounting system is a single page schedule that summarizes the overall costs (insured plus uninsured costs) associated with various types of injuries. "The method does not attempt to find and report 'exact' costs, according to Robinson, "but approximations that more truly reflect the total effect of accidents on the construction project and the company." Robinson offers this example: [Cjonsider a worker whose hand is injured by a piece of lumber dropped from a scaffold. The worker is unable to return to work the next day . . . and it is on the second day that the safety engineer learns that the hand was broken. At this time, without waiting a month to receive a report from the insurance carrier, the cost of the accident can be assessed using the accident cost schedule. Based on this method, a very conservative estimate of the dollar cost (both insured and uninsured) assigned to the accident in this example would be about $9,000 (computed in 1979 dollars). 53. As of this writing, Builder Inc. had not adopted the Stanford Accident Cost Accounting System, but safety department officials were seriously thinking of doing so. "We've been taking a hard look at the Stanford system," says Builder Inc.'s corporate safety manager. "We intend to do something with it because the indirect costs of accidents are far greater than the direct costs." 54. See, for example, Warren G. Bennis, Changing Organizations (New York: McGraw-Hill, 1966) and Beyond Bureaucracy: Essays in Development and Evolution of Human Organization (New York: McGraw-Hill, 1973). 55. On occasion the safety department also uses the Safety Marshal Program to deal with the "problem" supervisors. "Oftentimes," says a safety department official, "we get a new supervisor assigned to the job and within a week we have identified this guy as a problem. So we make arrangements with the project superintendent to get this guy assigned to safety marshal duties very quickly in order to broaden his level of awareness." 56. A safety department official illustrates one important way he hopes the weekly inspection will broaden the superintendent's overall awareness of occupational safety: it makes the superintendent more aware of the intimate relationship between safety and other construction activi-

133

Professionalism

and

Accountability

ties. The superintendent's weekly safety audit, as the Builder Inc. official puts it, "sheds light on the fact that safety is not there only for safety's sake but it is also very neatly tied into administrative and production activities as well." He offers this example. When a superintendent walks into an area with multi-level work going on, maybe four or five tiers of people working directly above each other, he'll see that that not only poses safety problems, such as falling materials; he'll also see that it's a scheduling problem because too many people are working in the same area. So maybe he could put the ironworker crew and pipefitter crew someplace else during that period. Hence, if the superintendent learns his lesson well, the next time he goes out into the field to deal with a "scheduling" problem he will also view it as a "safety" problem as well, and respond accordingly. Or, better yet, when planning the schedule he will also include safety-related considerations in the decision-making process. 57. For a project superintendent, as an example, the objective data include "the project's bottom line numbers," as a Builder Inc. safety department official puts it—a project's accident rates and accident costs. "We know how they've performed for the year," says a safety department official. "We know how they've performed in comparison to their peers; and we provide that data to their superior so he has something to draw on when he does the evaluation." The subjective factors, on the other hand, focus on the superintendent's "safety attitude," such as, for instance, "how many quarrels that occurred between the safety department and a particular individual who has tried to stiff-arm the safety effort." "Stiffarm," the safety department official adds, "is too strong a word. What I'm really talking about is that individual's safety attitude."

5 The Labor-Management Safety Committee

Does it really matter whether government operates in one way or another? More to the point, does it matter that OSHA adopted a regulatory alternative—mandated self-regulation—that differs significantly from the agency's customary inspection-and-citation enforcement strategy? As noted in chapter 1, there is good reason to believe that the CCP did make a difference not least because accident rates for CCP projects are lower than those for comparable company projects under OSHA's traditional regulatory regime. What that difference is will be the major question addressed in this chapter and the next. More specifically, two factors stand out in explaining the CCP's success: the labor-management safety committee's role, which will be examined in this chapter, and CAL/ OSHA's role in the program, which will be discussed in chapter 6. "[T]o assist the employer, as required, in the implementation of the Cooperative Compliance Program," the CCP's Agreement of Understanding states, a "four member committee, comprised of two employer representatives, and two employee representatives, will be established." "The labor-management committee is the backbone of the program," says a CAL/OSHA official charged with monitoring one of the CCP projects. "But believe me," he is quick to add, "if you didn't have a good safety department out there and just tried to do it by the safety committee, well, you wouldn't have

135

The Labor-Management

Safety

Committee

anything." In other words, for the corporate safety program already in place on the job site, the labor-management safety committee represents a significant addition. To be more precise, the committees represent a most significant addition because they advance the course of administrative development outlined in chapters 3 and 4—the development of enterprise responsibility—in one especially significant way: the committees expand the safety programs' base of social support beyond management by enlisting labor's support. "There has been a significant shift in worker attitudes," a safety department official reports. "Prior to voluntary self-inspection [the CCP] . . . the employees generally perceived the responsibility for safety as belonging to The Company . . . Now we have employee involvement." (My emphasis.) A job site safety engineer describes the fundamental change in these terms: "The basic program we institute on other projects is striving for the goal that we achieve with voluntary self-inspection, which means the craftsmen go direct to us with their problems instead of circumventing us and going to the enforcement agencies—state or federal OSHA." (My emphasis.) How does the labor-management safety committee achieve labor's involvement? The answer to this question is not important merely because it concerns the centerpiece of the CCP, but also bcause it involves a paradigmatic example of responsive law's approach to regulatory problem solving. As noted in chapter 1, characteristic of responsive law's approach to problem solving is the strategy of institutional design. This means that prescribing and enforcing rules is only one way of getting things done from the standpoint of responsive law. As Selznick writes, I have in mind the implementation of regulatory policy by requiring the establishment of administrative or technical procedures and/or organizational units that will, in effect, commit the enterprise to sustained and effective concern for the values at stake. The strategy of institutional design is a way of mandating self-regulation . . . As I see it, the fundamental objective is to create responsive organizations, that is, to build the conditions that make for self-restraint into the operative structure of the enterprise. 1 Hence, as a way of mandating self-regulation, the labormanagement safety committee provides a good example of responsive law's strategy of institutional design.

136

The Labor-Management

Safety

Committee

Our discussion is divided into three parts. The first part briefly discusses why the CCP's architects proposed the labor-management safety committee as a strategy of regulatory reform. The second examines the safety committee's operation in terms of its critical task and the concomitant roles played by the labor and management representatives. Finally, part 3 discusses some of the problems safety committees have confronted in carrying out a cooperative system of self-regulation. The Safety Regulatory

Committee Reform

as a Strategy

of

Just as OSHA's academic critics have proposed mandated selfregulation as a remedy for OSHA's deficiencies, so too construction industry safety professionals. If anything, they had developed similar proposals well before their academic counterparts. The CCP's architects wrote, "To become more effective CAL/OSHA must broaden its program, so that employer and employee groups are encouraged and stimulated to develop job site voluntary selfinspection programs involving employees and supervisors." 2 Why should OSHA adopt a strategy of mandated selfregulation based on labor-management cooperation? The labormanagement safety committee, first of all, appealed to the CCP architects' professional ways of thought and corresponding administrative needs. As we have seen in preceding chapters, labormanagement cooperation is a major corollary of the safety movement's professional ideology—Safety Management—and the CCP was originally developed by a group of construction industry safety professionals, who, like their colleagues in the professional safety movement, also stressed the need to involve workers in job site safety programs by way of increased labor-management cooperation. Indeed, the need to involve workers was especially apparent to the CCP's architects as construction industry safety professionals, since their industry has been slow to develop in this regard. A 1981 California study estimated that only .04 percent of the construction industry's collective bargaining agreements contained a safety committee provision, while the figure for manufacturing was 60.8 percent. 3 Why the contrast? To see why, consider once again Builder Inc. and Constructor

137

The Labor-Management

Safety

Committee

Ltd.'s administrative development, where safety department officials led a successful drive to harness management's involvement in their corporate safety programs, but no such steps were taken to elicit labor's participation. In considerable part, this one-sided administrative development can be traced to the nature of construction work. Unlike, say, manufacturing, where most workers are employed by the same company in the same plant for years, most construction workers go to numerous job sites each year. In effect, a construction company "leases" a temporary labor force for as long as the job requires. "I think the nature of the employment relationship in construction is so much different than in U.S. Steel or Chevron," a construction industry official observes. "There just isn't the opportunity to develop a long-term relationship." It is revealing to note, for example, that safety committees have been an established feature of Builder Inc.'s corporate safety program for years, but in one subsidiary only—a plant operation. If professional safety management is strongly committed to promoting labor-management cooperation, then labor's lack of involvement in construction site safety programs obviously represents a serious administrative deficiency. It is not surprising, therefore, that the CCP's architects proposed the labor-management safety committee as a safety management tool to address that deficiency and to advance the administrative development of corporate safety programs such as Builder Inc.'s and Constructor Ltd.'s. To understand why the CCP's architects proposed a strategy of mandated self-regulation based upon labor-management cooperation, it is also necessary to understand that, like OSHA's academic critics, they too were concerned about the mismatch between OSHA's regulatory tools and actual regulatory problems. More precisely, they noted the limited effectiveness of rule-centered compliance inspections to deal with the ever-changing nature of construction site hazards. Consider first the nature of the regulatory problem. At a construction site as compared to a factory, working surfaces, machinery, trenches, and scaffolds are always being moved and modified, assembled and disassembled, greatly increasing the chances for an accident. Construction workers also frequently change worksites and employers, which makes effective safety-related training difficult to ensure. Because of this, construction work is one of the most

138

The Labor-Management

Safety

Committee

hazardous industries a worker can choose. And because of this, the injury rate for construction workers is 15 percent greater than that of manufacturing.4 Now consider OHSA's regulatory strategy. According to the CCP's architects "the proportion of all lost-time injuries that could have been prevented by [OSHA] compliance activities ranged from 40 to 60 percent." Three reasons explain why: "[standards cannot be written to cover every possible hazard," "an [OSHA] inspection force cannot monitor all hazards;" and OSHA "compliance inspections of themselves may not motivate employers and employees to police their own workplaces." 5 At base, OSHA's regulatory regime is therefore seriously flawed. OSHA's principal regulatory tool, (compliance inspections) cannot deal effectively with a major dimension of the occupational safety problem. It is a problem of regulatory mismatch. And to correct that problem the CCP's architects prescribed mandated self-regulation. Specifically, they proposed a new regulatory tool for CAL/OSHA's arsenal—the labormanagement safety committee. The Safety Committee

as a Regulatory

Tool

Though rare in the construction industry, labor-management safety committees are a familiar feature of other American industries such as manufacturing. Yet, despite their numbers, very few empirical studies have been conducted to evaluate their effectiveness. Available studies generally agree that the mere existence of such committees makes little difference. To be effective, as Leslie Boden discovered after interviewing labor and management representatives from twelve manufacturing firms with labor-management safety committees, there must be "something special"—namely, "high perceived effectiveness." According to Boden, safety committees that are perceived to be effective "not only increase perceived safety, they also increase safety as measured by OSHA inspection results." 6 As subsequent discussion will reveal, the CCP's experience with seven labor-management safety committees in the construction industry sheds additional light on Boden's finding by illustrating the link between high perceived effectiveness and actual effectiveness. The CCP's experience thus provides an illuminating case study of how the labor-management safety committee can function as an effective regulatory tool.

139

The Labor-Management

THE COMMITTEE'S CRITICAL

Safety

Committee

TASK

The CCP required all employees be given printed notice of the new self-regulation program. So it was announced to workers in safety orientation meetings as well as through circulars such as the following: Voluntary Self-Inspection Program 1. This project will be covered by a Voluntary Self-Inspection Program that has been jointly undertaken by the Company, the California Building and Construction Trades Council, and the California Occupational Safety and Health Administration. The program will establish selfinspection procedures to expedite compliance with CAL/OSHA safety orders. 2. The program specifies that a four person committee is found, two from management and two from the Building Trades Council. This committee will: a) Conduct monthly OSHA-type inspections. b) Document any violations observed. c) Meet weekly to discuss matters of OSHA compliance. d) Review all Notice of Safety Problem forms submitted to the Safety Department. 3. The management strongly encourages every employee to consult and discuss any safety problems that they may encounter with their supervisor and with members of the Safety Committee. 4. A procedure has been established for employees to notify the SelfInspection Committee of any CAL/OSHA violations that they encounter. The "Notice of Safety Problem" forms may be obtained and submitted at the following locations . . . These forms need not be signed. 5. This program does not take away any rights employees currently have under the Occupational Safety and Health Act of 1970 or the California Labor Code. Each employee will continue to have the right to file complaints with CAL/OSHA, alleging safety and/or health hazards in the workplace. 6. Each party will monitor the program to ensure its success. Periodic, on-site review by CAL/OSHA's designated compliance officer will take place. Each employee will have the right to counsel with the designated compliance officer on any safety or health concern. 7. A copy of this program is available for review on the main bulletin board at the Safety Department office. 8. The management encourages your participation in the Voluntary Self-Inspection Program. We believe this agreement will help to provide a safe and healthful place of employment. "Mistrust," "skepticism," and "cynicism"—these are the words most frequently used to describe how workers generally greeted the new program at all the job sites. "The m e n , " says a construction worker, "didn't trust the system." " W h e n the program first started labor was very skeptical of it," a local union official recalls.

140

The Labor-Management

Safety

Committee

"They didn't think that management would treat them properly if they took safety problems to them." Such attitudes are far from surprising, he goes on to explain, when one considers the mistrust and skepticism workers generally display towards job site safety programs. "This has always been a problem in the construction industry and it goes on to this day." The causes of such attitudes are complex, but two factors stand out: fear of retaliation and frustration. "As much as everybody would like to say otherwise, people are apprehensive about their jobs," a construction worker observes. Indeed, the construction industry's organization of labor tends to encourage such fears, a local union official stresses, because Anybody working on a construction job is highly vulnerable to getting fired at any time. People are terminated daily. There is no protection in construction about who gets laid off and who doesn't. All the company has to do is point their finger at you and say, "Go to the office and get your check tonight." They don't have to give you a reason; they're just laying you off. Or if they want to give a reason, they can just say something like, "We've got too many men on this project" or, "You're not qualified." or, "I don't like the way you do your work." But in reality, you're being laid off because of the fact that you're bringing up safety issues. One worker sums up the attitude of many in these words: "When you're complaining about a safety problem you're making a nuisance out of yourself. And it's easier to get rid of the nuisance than fix the problem." In some cases, though, what inhibits labor's involvement in job site safety programs is not the fear of retaliation so much as sheer frustration. "The crafts are often reluctant to bring safety problems to management's attention because of the inertia," a construction worker explains. "When you bring a problem to management's attention it might get corrected, eventually, but it takes a lot of force to get it through; it takes a lot of repetition. You almost have to jump up and down and yell a little bit, wave your arms and scream, because you've got to start the motor and try to alter the pattern. But that takes a lot of energy. So usually the men just give up complaining if they don't see the problems getting corrected." "You can quickly get the feeling that it does no good to com-

141

The Labor-Management

Safety

Committee

plain," says another worker. "All it takes is for you to bring up a problem at the tool box safety meeting and then it just dies. After a couple of experiences like that you just give up, or you make the call to OSHA. All your working experience has pretty much been like that—it just doesn't do any good to complain. I hear that all the time. Men will say, 'This is wrong, but it won't do any good to say anything about it.'" Still another construction worker puts the point more broadly, "Confidence in the system is what's lacking most of the time on most jobs." When one considers these elementary facts of construction life, it is hardly surprising that confidence in the CCP was also lacking at the start of the new program. And when one considers that the CCP's architects created the labor-management safety committee to involve labor in the job site safety program, the importance of overcoming that fear and frustration cannot be overstressed. Not only is it essential to realizing the safety committee's essential purpose, but also to ensuring the CCP's overall success. To examine how the safety committees performed this critical task, let us now turn to the labor and management representatives roles in the program. THE LABOR

REPRESENTATIVE

CCP guidelines outline the criteria for selecting labor representatives. Appointed by the local building trades council, the labor representative must be currently employed at the site and may not concurrently hold office as a union steward.7 In every case save one this has meant appointment by the secretary of the local building trades' council. (On one site the secretary let the workers make the choice.) And almost always they have chosen "seasoned" journeymen with 10 to 35 years of craft experience, including several apprenticeship instructors. "I drew them from the best people I could find," one Building Trades' Secretary puts it. Says another, "The labor reps I chose were ones that I knew the men would respect." Communication When describing the CCP's most significant contribution, the most important difference it makes compared to other job site safety programs, participants from labor, management and CAL/OSHA use

142

The Labor-Management

Safety

Committee

one word more than any other—communication. A job site safety engineer observes, "The key to the whole program is the communication It puts labor on the inside as to exactly what's happening in the safety program and why." A local union official says, "The safety committee's most important contribution is that it has made the crafts feel that they are directly represented in the safety program, that they do have a voice that will be heard and listened to. That's the greatest thing. The men actually have a say in the safety program." "The whole system revolves around communication," says a DCO, "total communication of the committee with the workers." CCP guidelines create two lines of communication between construction workers and the safety committee. One is formal and written, the "Notice of Safety Problem" form. The other is verbal and informal. As one CCP job site poster states: "The management strongly encourages every employee to consult and discuss any safety problems that they may encounter with their supervisor and with members of the Safety Committee." Typically, because of their traditional mistrust and suspicion of job site safety programs, most workers used written complaints (which need not be signed) as a way of testing the CCP. A safety engineer recalls, The people tested the program for the first few months. In that time the committee received about 25 written anonymous complaints. About 98 percent of the complaints were about minor things, like dirty porta-cans [portable toilets]. People were testing us to see what action would be taken—to see if it was really going to go. They wanted to see what management's attitude was, if the commitment was there to make the program work. What they found is that no matter what, no action was taken against them. But there was action taken against the problem that existed in the field . . . Once they saw the company's quick reaction time to the complaints, that the company really meant business, people started to accept the thing. After that, instead of turning in a written or formal complaint, they started approaching the labor reps or safety department people without going through the formality of a written complaint. The whole thing has become a lot more informal.

143

The Labor-Management

Safety

Committee

As a consequence, he adds, "we rarely get written complaints anymore. People just tell us about a problem and we go out and jump on it." Participants from each of the seven CCP projects, including labor and management as well as CAL/OSHA officials, report a similar development. While mistrust and skepticism first led workers to test the system through anonymous communication channels, it was not long before those misgivings were allayed and workers developed the confidence required to voice their complaints directly to the safety committee. "They liked to use the complaint boxes at first because of the fear," recalls a safety engineer on another job site. "They were testing the program and they found out they didn't have to use the complaint boxes. All they have to do is bring the complaint to us verbally." As a CAL/OSHA monitor on still another job site puts it, "People don't feel afraid to voice complaints—that's the main thing. They feel very comfortable about making the complaint." It is important to emphasize the significance of this reported shift in worker attitudes because it advances the job site safety program's development in a most important way. As workers' confidence in the safety program increases, so does their willingness to voice complaints directly to the safety committee. And as the flow of information to the safety committee increases, so does the safety program's ability to deal with hazards that might otherwise go unnoticed, particularly the temporary hazards so characteristic of the ever changing construction environment. "The biggest benefit I found with the committee," a job site safety engineer observes, "is the timely reaction of the workers in the field, locating hazards, reporting them to a committee member, and being able to get it to us so that we can get out there and get it corrected immediately." It is also important to stress the critical role the labor representatives play in facilitating this development. Because their presence on the committee has made the safety program less threatening and more accessible, the labor representatives provide a new inducement for worker participation. "The labor representatives are approachable," says a job site safety engineer. "Workers can communicate directly with their peers," another safety engineer observes. "In the past construction workers have been very reluctant

144

The Labor-Management

Safety

Committee

about bringing up complaints for fear of being laid off. But not with this program. The workers go right up to the labor rep and bring them up to date on unsafe conditions." Labor representatives describe their role in similar terms. Compared to the company representatives on the committee, the management representative as well as the safety engineer, "the men can talk to me a lot easier," because "the difference between me and, say, the safety man is that I am a construction worker, and I've been in it for 35 years, so a man can come up to me and tell me about a problem and he doesn't have to mince his words about it." A labor representative on another job site explains, "I think this job has gone a lot smoother than other jobs I've been on because the men know they're involved. What I mean is that they know they have a representative on the safety committee they can go to. They're not going to a stranger, like the safety engineer. They're going to someone who really understands their way of work." "Face it," a job site safety engineer observes, "people would just as soon talk to a brother electrician than with company people." While the creation of a labor-management safety committee represents an important first step in establishing an effective channel of communication, it is only a first step. To maintain labor's involvement in the safety program, and to ensure that they will continue bringing safety problems to the committee's attention, worker contributions must be "rewarded." As Chester Barnard and others have stressed, to develop and maintain a cooperative system it is important to create an "environment of effective inducement." 8 And in creating that environment the labor representatives play a critical role. A labor representative explains: The reason they tell us about a problem is we react to it. We had very few complaints through the complaint boxes because the men on the job could catch me and tell me they thought something was unsafe. Generally speaking, I would say that happened once a day. Once they got into the habit of doing that, and they would see that things were being taken care of, that there was some action going on to deal with the problem, they continued coming to me. (My emphasis.) Another labor representative notes that some action is essential for developing the confidence required to effectively harness worker involvement:

145

The Labor-Management

Safety

Committee

One of the reasons I developed some confidence from the workers is that when they brought a complaint to me I would stop my work and tell them I would take care of it. Normally, I would go to the safety man and inform him about the problem and ask him to walk over to that area immediately, so that those people in the area that complained would see that some action was being taken right then. That way the workers felt that when they did mention something, some action would be taken. (My emphasis.) As still another labor representative explains, To make the system workable where the workers will actually participate and feed information to you, you have to show them some visible sign of activity, that something is being done. Also, you need to get the information back to the people that complained. You have to give them back information on what has been accomplished and why—what the outcome is. Once you sell the idea that something will happen if they mention it, then they go out of their way to bring problems to you, and they'll see more things than the committee will ever see. "You'd be surprised how much feedback the men on the job will give you," says another labor representative, "once they see their complaints will be acted on." To put this development in more general terms, consider once again Leslie Boden's study of twelve labor-management safety committees in manufacturing firms and the correlation he found between high perceived effectiveness and actual effectiveness. The correlation is worth stressing for two reasons. First, Boden's observation fits well with the CCP's administrative experience. As workers' confidence in the new safety program increased, so did their willingness to bring to the safety department's attention hazards that might otherwise go unnoticed because of the obstacles typically impeding labor's involvement. Beyond that, though, the job site safety program's problem solving capabilities were enhanced, particularly in dealing with those elusive momentary hazards so characteristic of construction sites. Hence, perceived effectiveness and actual effectiveness have been intimately related. Second, the correlation underscores what may be the labor representatives' most important contribution to the CCP. By making the new safety program less threatening and more accessible, and by readily re-

146

The Labor-Management

Safety

Committee

acting to safety complaints, the labor representatives have played a central role in fostering worker confidence in the CCP. And without that environment of effective inducement, as the preceding discussion has shown, there is little reason to believe the CCP would have significantly enhanced the job site safety programs effectiveness. Compliance This characterization of how the labor representatives enhance the safety program's effectiveness is accurate as far as it goes, but it does not go far enough in one important dimension. Because hazard identification and hazard abatement are two principal tasks of a job site safety program, it is important to emphasize that labor representatives not only strengthen hazard identification on the job site, by facilitating labor-management communication, but also strengthen the hazard abatement system. If nothing else, the labor representatives are like additional officers on a policeman's beat. As a job site safety engineer observes, they "give additional eyes to the safety engineer." Even more important, labor representatives strengthen the hazard abatement system by giving the compliance process an added dimension of authority and competence. To begin our discussion it is useful to ask how the labor representative's status on the job site compares with that of the job site safety engineer. In essence, the labor representative is an insider. He is a "construction man," whose many years of craft experience encourages a union of sympathies and interests with fellow workers. By contrast, the safety engineer is an outsider, not only because he has no craft experience, but also because he is closely identified with management. "The safety man generally has a low image among the craftspeople," a worker observes. "You see," another worker explains, "he's not a construction worker. So the basic attitude you run into is 'What's this turkey know? He's thirty years old and I've been doing this for twenty years. I've been doing it when he was still a snot-nosed kid.' " "The safety man isn't too well respected because of our feelings towards the company," another construction worker explains. "He's non-manual. He's from the office. He's a white hat. [White hardhats are worn by management.] So there's a natural animosity, or a natural reserve between the

147

The Labor-Management

Safety

Committee

manual and non manual . . . It's just natural. There's nothing unusual about it. I think it must be inbred or something." Says another worker, "When you have somebody like that [without direct craft experience] directing part of your life I think we all get upset." The importance of this status difference, insider versus outsider, lies in the fact that the labor representative can bring to the compliance process normative inducements which the safety engineer cannot. To take an example central to the discussion, consider the "natural animosity" dividing labor and management and the "different reaction" workers display towards the compliance activities of the safety engineer and the labor representative. "When I'm sitting there and doing something stupid," a worker explains, "something that I know damn good and well is wrong, but I'm doing it anyway, and the safety man comes up to me and corrects me on it, well, it'll upset me. I may not say anything. Or I'll say, 'Okay, fine, you're right'. But I will lose my temper over it, it will aggravate me, because he's just not one of us." (My emphasis) By contrast, a labor representative observes, "Usually, if I come up and jump on somebody, they listen to me more than a safety engineer because he's not a construction worker. The hands will look at him and think, 'What's he telling me for? I've been doing this for years and I'm still around.' The difference between me and the safety man, is that I am a construction worker . . . Of course, I get that kind of bullshit too. The difference is that they know I've been there and know what the situation is." "There's a different reaction," another labor representative observes. He can be more blunt compared to the safety engineer, he explains, yet less offensive, because the safety engineer is an "outsider:" I've been working around this area some twenty odd years. I know most of the people in the crafts and they know me. So I can go up and tell them something, and really get hostile with them, and chew their butt out. But still, there won't be any lasting animosity to it. Whereas if the safety man himself were to confront them on the same thing it would be exactly the opposite. There is no reason to believe that these are isolated occurances. To the contrary, because the compliance process involves insiders, one construction man to another, it is reasonable to expect that the la-

148

The Labor-Management

Safety

Committee

bor representative can rely on influence and persuasion in ways the safety engineer cannot. Another example further illustrates the point. "I'm a big believer in education and training," says a labor representative. And I think that's the main thing the labor representatives contribute out here—education of the individual. I think we made people more aware of safety out here. I've told a lot of the kids on the job, "You know, you're a young man. You've got a long life ahead of you. You need two hands, you need two feet, and you know you need both eyes." And I say to them, "What you're doing endangers your life. You could lose an arm or a leg, or get an eye put out because you're not wearing safety glasses." "You've got to stop," I tell them, "and think about these things and become aware of it." "Just look around the field," I tell them, "and you see people working next to you with three fingers, and people limping because their leg had been crushed." It is difficult to see how the job site safety engineer, lacking craft experience, could exert a similar kind of influence. Craft Rivalry In most cases, the labor representatives' "craft experience" bolsters the safety program with an added dimension of competence and authority. In some cases, though, the craft organization of labor (ironworkers, pipefitters, electricians, and so forth) can actually frustrate the labor representatives' effectiveness. "Craftspeople are proud," a safety engineer explains. "I don't care how good you are, how smart you are, how old you are, an ironworker does not like to be told by a pipefitter that he's doing something wrong and to correct it, or vice versa." To illustrate with an extreme but instructive case, consider the following example as described by a labor representative (a pipefitter): The company had a rule requiring everyone to wear eye protection when standing in an area where someone is grinding metal. That's required for everyone standing within ten feet, not just for the ones doing the grinding. That was a sore point with the pipefitters. They feel they always can turn their backs to the grinding and be safe. So they were reluctant to abide by the rules regarding safety glasses. It was quite controversial.

149

The Labor-Management

Safety

Committee

What happened is that the ironworker representative confronted a group of pipefitters and told the man to stop grinding until the area was cleared of people without eye protection. The pipefitters immediately resented an ironworker telling them what to do. They had a big confrontation, because they didn't understand that he represented everybody. And they didn't want to be told by an ironworker what to do. There's kind of a built in resistance to that. I came to the area and I discussed it with all the people. And they finally admitted, "Yes, they were wrong," and that they wouldn't do it any longer. But they said they just didn't like the ironworker saying anything about it. They just didn't want the outside craftworker to have any authority over them. That's what they didn't like. I'm sure that would be true for any craft. We [the safety committee] decided, as a result of that incident, that whenever we had a problem outside of our own craft we would not confront that craftsperson. Anytime we had a problem like that, we would get the safety man to pursue it. (My emphasis.) Although it is worth observing that such tensions exist, it would be an overstatement to say that craft rivalry created a significant problem for the CCP, since participants report few real difficulties arising from such sources. Yet, it is not fanciful to suppose that serious problems might arise on future CCP-like projects. To summarize, because their "craft experience" furnishes the safety program with normative inducements which the safety engineers cannot offer, the labor representatives give the safety program's compliance system a different character, an added dimension of competence and authority. While this is particularly true for the labor representative's own craft, it is true to varying degrees for other crafts as well. The important point to note here, though, is that this element of solidarity is what enables the labor representative to advance the safety committee's critical task— enlisting labor's involvement in the job site safety program—in ways the safety engineer cannot. A union steward sums up the labor representative's appeal for workers this way: "Most of the response I've had on this job is, 'Hey, this is a nice concept because it lets us police our own work.' It's like two pros playing tennis. Let them call the shots instead of putting refs on the sidelines."

150

The Labor-Management

THE MANAGEMENT

Safety

Committee

REPRESENTATIVE

In carrying out the safety committees' critical task, the management representatives also play a role. That role differs from those of other safety committee members, however, including the safety engineers'. Put simply, because the management representatives are seasoned construction supervisors with considerable formal and informal authority on the job site, they add a managerial dimension to the committee's problem-solving capabilities. In consequence, they help to reduce the inertia and corresponding frustration traditionally impeding labor's participation on job site safety programs. Managerial Authority Chosen by company officials from the top echelon of the job site authority structure, the management representative gives the safety committee more "clout" than the safety engineer can provide. "The real difference between me and the management rep," says a job site safety engineer, "is that he's out there directing the work. He's got more clout because he's a manager. I'm not. My job is basically that of an adviser." The management representative, says a safety engineer on another job site, has "a lot of push—he's the number two man on the job. In a job like mine you need a lot of back up. And he had it. He could offer it. Everyone on the site knew his position. Everyone knew that what he said was the law." The management representative is also a seasoned construction man highly regarded by fellow supervisors for his professional competence. This means that in addition to formal authority, the management representative also furnishes the safety committee with informal authority. "Our management rep is 58 years old," says a safety engineer. "He's been in construction all his life. So he's an old hand in the construction business, and very well respected." Another safety engineer refers to the management representative's informal authority in similar terms: He's an electrical superintendent. He's out on the site everyday, in every facet of the job. He's got production responsibilities as well as the safety responsibilities. God it's hard to

151

The Labor-Management

Safety

Committee

explain. I guess you could just say that he's very well seasoned. He worked in the trades. He came out of the trades. He's very common sense oriented. And he's not a "get it done at all costs" type of person at all. He's very concerned about his manpower and his people. He just has a good common sense attitude. And he commands a lot of respect from both his peers and labor. And that's the reason he was put on the Committee. (My emphasis.) Access When one considers the management representatives' formal and informal authority on the job site, it is easy to see why they have ready access to other construction supervisors. That access, according to safety committee members, is the management representatives' most important asset for the safety committee's operation. "Our management representative is a direct liaison with other superintendents," a safety engineer explains. "He can go out into the field and get something rectified with other superintendents. He knows them and can deal with them in a way that I can't. Because he can go out on the same level as another superintendent and get problems rectified." (My emphasis.) As another safety engineer puts it, the management representative "has a direct line to field supervision. He's dealing with them as one superintendent to another superintendent. So it gives the committee an in to the other supervisors." Says a third safety engineer, Let's face it, the management representative is directly involved in management and construction. When he has a problem with something involving safety, and he brings it up, supervisors are going to sit there and really listen to him because they know he has responsibilities on the same side of the coin as they do. Whereas they look at me a little bit different, because I don't have direct production-oriented responsibilities. (My emphasis.) Still another safety engineer observes, "It helps to establish the committee's credibility when supervisors see one of their own people on the committee." One indication of the management representative's "clout," and what difference it makes, is safety committee inspections. All the sites report the immediate correction of 70 to 80 percent, some-

152

The Labor-Management

Safety

Committee

times more, of the safety-related problems identified during committee inspections. "Most of the problems are taken care of right before the committee's eyes," as one labor representative puts it. "It's a small percentage of problems that we would have to wait until we get back to the safety office to get to," says a safety engineer on another job site. For the most part, this rapid rate of abatement reflects a fundamental feature of the construction site task environment; once recognized, most safety problems are not difficult to abate. The following committee "Inspection Report" is typical of the dozens I examined. Listing ten safety problems identified during the committee's inspection, the report includes the location of the problem, the violation involved, and corrective action taken: SHALL

have pennant flagging and sign stating:

BOOM T R U C K S ,

AREA WITH A . . . ELECTRICAL SHOULD

walkway.

have

HYSTERS,

C R A N E S , e t c . MAY NOT O P E R A T E IN

pallet

of

THIS

CHECKER.

material

moved

out

of

main

S H O U L D have a roll-back of light stringers, cords, welding leads, etc. SHALL

etc.

not use tie wire to hang electrical cords, welding leads,

Fluorescent light fixture SHOULD be removed. Two cement mixers of [subcontractor's name] tagged out of service. SHALL not be used until corrected. have scaffolding meet OSHA or [company] Safety [standards],

SHALL

SHALL

have middle rail reinstalled.

SHALL

replace grating or barricade opening.

SHOULD

have housekeeping in this area.

It is scarcely an exaggeration to note that most of these problems can be corrected in a matter of minutes—a sign installed, a pallet moved, electrical cords rolled up, a light fixture removed, a guard rail replaced, an opening barricaded, a work area cleaned. So the fact that time-consuming and expensive measures are not required

153

The Labor-Management

Safety

Committee

partly explains the safety committee's ability to rapidly abate most hazards. This is not to say that the management representative's presence makes no difference. To the contrary, a safety engineer explains, "Committee inspections are different because the management representative swings a bigger bat than I do. When I spot some problems in a particular area of the site it's my job to tell that area's supervisor about it. I may write him a memo, for instance, together with some recommendations on how to deal with the problem." As an adviser, in other words, the safety engineer is not likely to call in the supervisor and take him away from his normal duties unless, of course, the problem is serious enough to pose an imminent danger. Committee inspections are different, the safety engineer continues, "because the management representative is with us:" That happened on our committee inspection yesterday. One area of the site needed a clean up. We saw an excessive number of cords and leads strung out on the project. They were just lying all over, and not hooked up to anything. They were just out there creating tripping hazards and adding to the confusion. So the management rep notified the laborers' general foreman, pointed out the areas that needed cleaning up, and they got right on it. "So if something comes up and it needs pushing," the safety engineer adds, "the management representative is the best one to push for it." The last point is critically important because it illustrates the management representative's essential contribution to the labormanagement safety committee's critical task. If frustration with a job site safety program's inertia tends to impede labor's involvement, then the management representative's authority helps to reduce those frustrations by quickening the process of abatement. "It's just a matter of it'll get done a lot quicker if the management rep is standing right there with me," a safety engineer explains. "You don't have to wait and submit a memo listing the problems to supervision, and wait to have supervision respond." "The most important contribution I can make," as one management represen-

154

The Labor-Management

Safety

Committee

tative puts it, "is that I have enough muscle to get done what I want done, the way I want it done, when I want it done." To summarize our discussion thus far, the labor-management safety committee bolsters the safety program's effectiveness. Representatives from labor and management each have a distinctive contribution to make to this project. The labor representatives help make the job site safety program less threatening and more accessible, while the management representatives help to reduce the inertia and corresponding frustration that also can impede labor's involvement. Management representatives as well as labor representatives foster "high perceived effectiveness" among workers. Hence, by harnessing labor's involvement, the labor-management safety committee represents an important safety management tool.

Easy Cases, Hard Cases, and the Limits of Cooperative Self-Regulation Up to this point our discussion has stressed the labor-management safety committee's role as a safety management tool designed to involve labor in job site safety programs. As noted earlier, though, the safety committee is also a surrogate OSHA compliance mechanism. More specifically, the safety committee is to conduct inspections and review complaints, according to CCP guidelines, in order "to assure continuing compliance with the CAL/OSHA Safety Orders." Seen from this perspective, at base the safety committee's role is rule-centered. 9 For the safety committee this base creates conflicting imperatives. As one safety engineer observes, By the [CCP] charter the committee only gets involved in matters covered by the CAL/OSHA safety orders. That's what the charter says. But to be honest with you, my policy has been that I'll discuss any problem with the committee to find a reasonable solution. Because if they're in on the decisionmaking process its a helluva lot easier to build a rapport with labor. But I'm not required to. Stated more broadly, though the safety committee's official role as a surrogate OSHA regulator authorizes a rule-oriented administrative style, its role as a safety management tool generally en-

155

The Labor-Management

Safety

Committee

courages a much less formalist and rule-bound approach. How are these opposing tendencies resolved? As will be made clear in the remainder of this chapter, to understand why the safety committee is more "ruleish" in some cases and less so in others, it is necessary to consider the kind of problem at issue. With regard to easy cases, the safety committee most closely resembles a safety management tool. With regard to hard cases, the safety committee most closely resembles a surrogate OSHA inspector. When thinking about construction site safety problems it is important to keep in mind that most problems are easy cases. That is, labor and management share a broad area of agreement as to what constitutes a "safety problem" as well as what steps are required for abatement. Most safety problems are a matter of "practical sense," as one safety engineer puts it, arising from the shared norms, customary practices, and common construction experience of committee members. Most often this means that the task environment encourages the safety committee to pursue a less rulebound course than CCP guidelines prescribe. One indication of this broad area of agreement, examined above, is the high level of rapid abatement typical of committee inspections. Because safety committee members seldom disagree on what needs to be done, what makes practical sense, the great majority of problems can be resolved almost immediately. Another indication is the tenor of weekly safety committee meetings. Because the task environment readily lends itself to consensual problem solving, "[i]t's very seldom that there's a divergence of opinion at the meetings," says a safety engineer. "Everybody pretty much agrees on what has to be done." "There's not too much discussion on the issues," says a labor representative on another job site. "Usually, we come to a meeting of the minds right away. A guy will bring up a problem, somebody will immediately come up with a solution, everybody looks around and nods, usually nobody says anything against it, and we buy it." Indeed, the safety committee's task environment is so congenial to a strong problem solving ethos, says another labor representative, that on most issues "it isn't even a matter of agreement so much as somebody brings up a problem and we resolve it." Under these congenial conditions there is little if any need to appeal to "outside" authorities for guidance, such as OSHA rules; practical sense is

156

The Labor-Management

Safety

Committee

authority enough. Thus it is understandable that in dealing with easy cases the labor-management safety committee resembles a Safety Management tool. In some cases the issues have not been so readily resolved, however, because they are simply beyond the pale of labormanagement consensus. So disagreements have arisen on occasion as to whether or not a "safety problem" exists and/or what is an appropriate solution. These are hard cases. Yet, with one notable exception, when confronted by these hard cases labor-management cooperation did not break down. Why? As we shall see, one especially important reason is OSHA rules. More precisely, despite genuine differences, governmental norms provided crucial normative support in each case for maintaining a system of cooperative action. And by taking rules seriously in dealing with hard cases, the safety committee thus resembles a surrogate OSHA regulator. To see how, the remainder of this chapter focuses on five key examples. In addition, quite apart from examining the role of OSHA rules, these cases are well worth examining for another reason. In the CCP's implementation they represent the program's most significant trouble cases.

THE SLOPE

INCIDENT

Picture a construction site in which the project's office, trailers, and warehouse are located on a pad about seven feet higher than the rest of the site. Also picture a dirt path (about twenty feet long and with a twenty degree slope) connecting the elevated compound with the rest of the job site. "We had one big brawl on the slope," the job site safety engineer recalls. "The labor reps wanted stairs, they demanded stairs, and this was an on-going thing for a month." Why did the labor representatives demand stairs? This particular ramp was the focus of a lot of foot traffic. I had made the recommendation that we put in steps because of the high frequency of use to eliminate the possibility of somebody hurting themselves. During one of our committee inspections we were all looking at the slope and most of us agreed that a staircase should be put in. The safety man and the other labor rep agreed with me on the staircase. The man from CAL/ OSHA [the DCO] was there too, and I got support from him

157

The Labor-Management

Safety Committee

too on the staircase. His position was that although it wasn't required by the Safety Orders, it was still a good idea—so he recommended the stairs. The management representative abstained from the decision, however, and later directed the safety engineer to measure the slope. "It was well within the parameters of the standards as far as not requiring stairs," recalls the safety engineer. (My emphasis.) "While CAL/OSHA rules recommend that stairs should be used under those conditions they are not required." (My emphasis.) The management representative did not want the stairs, he explains, "because there was a road at the toe of the slope, and they would have obstructed the movement of vehicles and other pieces of equipment." "In my opinion," counters the labor representative, "there was a degree of interference, but not anything significant. There would still have been enough room on the road to get around the staircase." At the next committee meeting the management representative announced his decision. No stairs would be built. "There was no further discussion," the labor representative recalls. It was very open and shut—'No, we're not going to put the steps in.'" "In fairness to the management representative," he adds, "we were going into a grey area": What he did is make a judgment, based on his experience as a construction man. He's going to do what he feels is right. He's not going to go the absolute safe way. He's going to do it the most cost efficient way, while taking safety into account. So I'm not saying his judgment was unsafe. In fact, as it turned out, I don't believe there ever was an incident where somebody actually did fall and injure themselves during the entire course of the job. Nor was the labor representative troubled by the management representative's decision-making style; his unilateral decision to override the rest of the committee, including the DCO, without further discussion. "The management rep is a man who has run construction jobs all his life. And the reason he is a superintendent is that he's not bashful about making decisions. In his role as a superintendent he doesn't feel the need to explain his decisions. If he had to explain his actions it would kind of weaken his position.

158

The Labor-Management

Safety

Committee

So what he would do is just say, T h i s is the way it is boys.' In his dealings with the safety committee the same tone prevailed." It is important to stress, though, that the management representative's decision involved more than a managerial weighing of costs and benefits and exercising his prerogative accordingly. It was also guided and justified by another principle of legitimation—OSHA rules. "The management representative stuck by the OSHA standards," as the job site safety engineer puts it. Adding, "If it hadn't been within the standards we would have built the stairs." Even so, the company did take one step to accommodate the labor representative's concerns. "When we decided to stick by the OSHA standards," says the safety engineer, "the labor representatives said, 'Well, what if it rains?' So we spread gravel." "The whole issue was a very minor item," he adds, "but it was made big because the labor representatives latched onto it and kept after it."

THE ELEVATOR

INCIDENT

The major issue of labor-management contention on another CCP project involved an elevator used to transport construction workers and building materials up and down a 259 foot high structure. The issue in dispute was whether the elevator should be permanently manned by a construction worker to operate the elevator. Management said no. Labor yes. And like the slope incident, the point to consider is how OSHA rules played a central role in the dispute. A construction workers says that The elevator was just a piece of crap. It was a good elevator for what it was eventually going to be used for. After construction was over it would be used to take a man up there once every couple of days. It just wasn't intended for that heavy a usage. That's where the big problems were. In fact, I was trapped on that thing for three and a half hours one time because one of the breakers had popped. I think what was causing the breakers to pop was the heavy use it was getting. The cables were stretching a bit. So when the elevator took off, all of a sudden you would get a sickening lurch and then, bam, the circuit breakers popped overhead. But the biggest problem we had with the thing was that the door just wasn't closing properly. It wasn't engaging when you

159

The Labor-Management

Safety

Committee

slid it closed. So when you had a lot of different people out there using the elevator, the elevator was getting stuck a lot. A person would go all the way up to, say, the sixth elevation, get out of the elevator, close the door and it wouldn't engage properly. So the men at the bottom who want to use the elevator have to walk up to the sixth floor and close the door properly. But if we had a man on there operating the elevator we wouldn't have had these problems. Company officials had a very different view of the matter. The elevator issue, according to the safety engineer, "is an example of where a convenience issue got pushed into a safety issue." In addition, he explains, "The company didn't want to set a labor precedent on it. The labor agreement requires us to put an operator on the elevator when we had materials, not when we're hauling personnel. We kept getting a heavy pounding from labor that we should have a permanent operator on it. Management had to make a decision on it. And the final decision was 'No'—an operator was not going to be put on it." The crucial point here concerns the role of OSHA rules and how they guided the company in arriving at its decision. "I sat down with the DCO and talked to him at length with the Safety Orders in front of both of us," recalls the job site safety engineer. "I said to him, 'This is what the problem is. Where do we stand on it if you were to come out here to inspect the problem on a complaint?' We agreed that it was not touched on by CAL/OSHA. It was not in the Safety Orders. So the company's decision not to put an operator on the elevator was okay by him." "Quite frankly," he continues, "management's decision cost them a bundle of money. That elevator was down a lot. To be honest with you, I'm sure it was sabotage. And when it was down we didn't get shit done. But like I said, the company just didn't want to set a labor precedent on it. It's hard to understand why, but labor pushed this thing to the max. If they think the Company is getting away with something, they'll push it to the max. I think they really felt that the company was taking an unreasonable hard line stand on the thing." It is also worth considering the role of OSHA rules with regard to influencing the labor representatives' involvement in the issue. "We were getting barraged by complaints from our people," as one labor representative recalls.

160

The Labor-Management

Safety

Committee

Everybody (Emphasis in original.) was bitching about that thing. At first I thought there was a safety problem and I was really involved in the issue. Eventually, I changed my mind. You see, there's a fine line between safety and labor relations. And I got to the point where I was really questioning my authority in the area because I was sure that the elevator was safe and what we really had going here was a labor relations hassle. And that isn't my area as a safety committee member. So I stepped back from the matter because I got the feeling that it was turning into a labor problem that should be handled by the steward and the business manager of the local union. (My emphasis.) The other labor representative expresses a somewhat different view of the matter. "Whether or not it's covered by an OSHA regulation it's still a bad work practice. And I firmly believe that it is a safety problem." Nevertheless, because the issue is not covered by OSHA regulations, he continues, "I recognized the fact that, yeah, it doesn't come under the committee, and that the proper way to handle the problem is through the [union] stewards and business agents." What changed the labor representatives' minds? "I had the DCO come in and actually explain to them [the labor representatives] that we were in compliance with CAL/OSHA regulations," the job site safety engineer explains. "So it was out of the Committee's jurisdiction. They realized that and said, 'Okay, we understand.'" "Of course," he adds, "just because they're on the safety committee doesn't mean that they can't support labor's position. It's just not within their jurisdiction as committee members." Once again, like the slope incident, the company invoked CAL/OSHA regulations in justifying its decision over labor's opposition. And like the slope incident, steps were also taken to allay some of the safety-related concerns workers had about the elevator's safety.10 In any event, the elevator issue remained a matter of labormanagement contention until work on the structure was completed, though union and management officials did reach a compromise of sorts. If the elevator was broken, they agreed, then the workers would not be required to climb more than three floors. It is central to recognize, though, that the compromise was arrived at without any safety committee involvement simply because it was

161

The Labor-Management

Safety

Committee

not an OSHA related matter. Hence, OSHA rules insulated the committee from the job site's major issue of labor-management conflict.

ANOTHER ELEVATOR

INCIDENT

On another CCP project the safety committee received numerous complaints from ironworkers who wanted temporary construction elevators installed on structures over sixty feet tall. "Nobody likes to climb," the DCO explains. "Climbing exerts a tremendous strain on people and they die from heart attacks." While the safety committee rejected the proposal for elevators, they did recommend a crane and basket for each structure. But the project superintendent rejected the safety committee's recommendation. CAL/OSHA regulations, in his view, did not require a crane and basket in these circumstances. "The superintendent was of the opinion that the regulations only required an alternate means of transportation in case of an emergency, not for normal day-to-day use," the safety engineer explains. That is to say, "if there was a crane and basket readily available for emergencies, then that complied with CAL/ OSHA regulations. It got to be a matter of interpretation because his interpretation was one way and ours [the safety committee's] was another." "This is one where I turned the project superintendent around," as the safety engineer puts it, "by calling up the DCO to get the administrative interpretation of the rule." An administrative interpretation, the DCO explains, "is an official interpretation of a particular safety order . . . I remembered that a few years back CAL/OSHA had settled on an interpretation of that particular safety order. So I told him I would look it up and send it to him." "When the DCO sent me the administrative interpretation," says the safety engineer, "I took it to the project superintendent and said, 'Look, this is what it says. The regulation was written, primarily, to alleviate stress and strain on employees having to walk and carry tools up and down excessive heights.' I said, 'There it is.' So he had to turn it around. He turned his decision around because of the regulation, and we supplied the crane with the basket for the structures that didn't have elevators on them."

162

The Labor-Management

Safety

Committee

Going by the book in this way, the job site's most significant safety-related disagreement was thus resolved. THE TRASH INCIDENT

"There was only one negative vibration on the entire job," says a DCO on another job site: A couple of times the company got behind in the cleanup. This is always a very difficult coordinating problem because you're talking about fifty different subcontractors out there. You get a time lag, and the company has to figure out whose trash it is. Then they have to notify the subcontractor and give them time to clean it up. It's a tricky situation under the best of circumstances. "The job was pretty trashed up," as a union official puts it. The guys were complaining that every place they go there's piles of boxes and crap. "We can't work in that shit," they kept complaining. "We'll twist our ankle or trip on something." The company thought it was petty. So I went to the safety committee meeting, sat down with their management representative and we had a real set to for about 45 minutes. The labor reps and I told them that petty was in the eyes of the beholder. And we told them that it is a safety problem when you've got shit piled up all over the place, and we want it corrected. And I said, "Are we really talking safety, or is power and authority at the root of all this?" . . . That was the biggest problem we had there. But it was only a small problem really. Aside from that, we were really pleased with management's responsiveness. The DCO was at the safety committee meeting as well. And to resolve the dispute he invoked CAL/OSHA regulations. "Part of the problem was that the company was from out of state," the DCO explains. "And they didn't quite understand that CAL/OSHA has fairly good safety orders on doing cleanups—it is a safety item. After I explained that to them, the company hired eight or twelve more clean-up people for two weeks. That took care of the problem. These four incidents are similar in at least one significant re-

163

The Labor-Management

Safety

Committee

spect. All are hard cases. Unlike the great majority of problems confronted by the committee, consensual problem solving alone could not resolve the issues. So something more than "practical sense" was required to arrive at a mutually acceptable solution. In addition, OSHA rules had to be invoked. In this way, OSHA rules not only helped to minimize the strain on labor-management cooperation arising from problems beyond labor-management consensus, but most important, also provided crucial normative support for maintaining a system of cooperative action. Hence, when confronted by these hard cases labor-management cooperation did not break down. But as we will now see, our final trouble case was not so easily resolved. THE ASBESTOS INCIDENT

"The stickiest problem we had out here was asbestos," a job site safety engineer recalls. Indeed, so "sticky" was the asbestos problem that some workers actually walked off the job (which shut down part of the project for three days), "the panic button got pushed" at CAL/OSHA (which triggered a two day agency inspection of the job site), and the whole self-regulation process "went by the wayside." Because the asbestos incident stands out as the Cooperative Compliance Program's most serious dispute, it merits especially close attention. The asbestos incident erupted on the job site about four months before the project ended. "Up to that point," the job site safety engineer recalls, "we had had real good cooperation with the crafts and everything had been going along quite smoothly." Then, he adds, "the asbestos thing hit us." It began on a Friday afternoon when the first of five complaints was telephoned to the CAL/OSHA District office. The complaints were all from electricians and all concerned asbestos exposure. "When I was talking to the fellow who was making the complaint, he said he wanted me to get my tail right out there," the DCO remembers. I called our hygienist and explained the situation to him. He did not deem this to be a serious complaint, not an imminent hazard at any rate, so we decided to let it go until next Wednesday because I was scheduled to go out to the job site for

164

The Labor-Management

Safety

Committee

my monthly visit on that day anyway. On Wednesday I went to the site for the monthly walkaround and we [the labormanagement safety committee] immediately went to the problem area. The problem area, adjacent to a building under construction, centered around a cutting shack for sawing and trimming wall panels. The wall panels had a 27 percent asbestos content, and as the DCO's official report on the incident describes, there were some problems with the asbestos handling procedures: Once the panels had been cut they were vacuumed in the shack and moved outdoors where holes were drilled in them. There was a breeze. A vacuum was used on top of the board while the hole was being drilled. The bottom was not covered and material would fall onto the ground. At this time, the panels were washed with a rag which was dipped in a bucket of water. The water was dumped onto the ground. The panels were then hoisted by crane into place . . . Prior to the time the panels were being washed, dust came off the boards and at least three trade groups were exposed to whatever the dust was . . . [In addition, the individual cutting the boards in the shack] would vacuum his suit, take off his respirator and go outdoors when not working as it was very hot in the shack. There was no assurance he and others weren't exposed. To remedy these shortcomings, the DCO insisted upon some immediate though relatively minor changes in the company's asbestos handling procedures. 11 "What the DCO recommended were things we did right then on the spot," recalls the safety engineer. "That satisfied the pipefitters and carpenters," he adds, "but not the electricians." After the safety committee inspected the problem area, the DCO met with the electricians to discuss their complaints. Recalls the DCO, "They wanted to know, 'Is it bad or isn't it?' And I told them that where they're working they've got no problem." But "the electricians walked off the job anyhow." As a result, work on the building was shut down for three days. Why the electricians walked off the job will be discussed in a moment. The DCO recalls.

165

The Labor-Management

Safety

Committee

When I got back to the office I talked to the district manager and the panic button got pushed. I kind of felt it was a case of overreaction. But with something like asbestos you're going to overreact. Rather than having this blow up any larger than it already had, I guess my superiors wanted to keep it at the local level. They didn't want someone phoning up Headquarters or their Congressman and saying, "Hey, I can't get OSHA to do a damn thing out here." To avoid that kind of pressure from coming down, it was decided to squash this thing at the local level. (My emphasis.) So, to thoroughly investigate the electricians' complaints, CAL/ OSHA officials ordered an inspection. The day after the safety committee's inspection a "CAL/OSHA Asbestos Inspection" was initiated. For the next two days a CAL/ OSHA industrial hygienist inspected the problem area. Most telling, he did so with many of the legalistic trappings associated with a regular CAL/OSHA inspection, including a formal opening conference with company and union representatives, the identification (section number by section number) of the "problem areas" identified, as well as a list of so-called "recommendations" which the Company "must" adopt. Company officials were irate, the job site safety engineer recalls, because CAL/OSHA was acting "as if this were a violation": When I told my boss [the manager of safety] what was going on, he was really pissed. He flew down right away and called a meeting with CAL/OSHA's district and regional managers. The DCO was there too. My boss was very upset. He did not feel CAL/OSHA had done the right thing. Unless you have a serious and willful violation, the program is set up so that OSHA is just here as an adviser. They're not here to do anything except tell us what to do—and we do it . . . All that just fell by the wayside when CAL/OSHA called in their industrial hygienist to do an inspection. They were acting as if this were a violation. "Quite frankly," the company's manager of safety recalls, "I came away from that period with the feeling that maybe we had lost something.": Maybe CAL/OSHA really didn't believe in our sincerity to begin with. It goes back to credibility, I guess, and whether or

166

The Labor-Management

Safety

Committee

not we were trying to truly ascertain problem areas or trying to cover them up. As long as everything went along merrily, they were there to walk arm-in-arm with us. But once we came to a stumbling block that was a problem area (and it was a problem area, I'm not denying that) they were ready to jump back and cross the line to the other side. The results of the industrial hygienist's inspection were mixed. On the one hand, "there were nine or ten problems that our hygienist said would be serious violations anywhere else, if it hadn't been a self-inspection project," the DCO recalls. On the other hand, he continues, "I myself wouldn't have been as stringent as our environmental health people were." He was too stringent, the DCO explains, in the sense of being too legalistic, too preoccupied with citing violations of CAL/OSHA asbestos handling procedures, despite the fact that employee exposure was well within permissible levels. As the DCO's official report on the incident states: "It was determined that the company's program was working . . . and from test results, there was no asbestos exposure over the limits at the time of the tests except for the employee in the shack who is properly protected." In other words, says the DCO, "they didn't have a problem out there." 1 2 Why was the asbestos "problem" the one safety complaint that could not be successfully resolved in-house? And why was the asbestos incident the only significant breach in labor-management cooperation to occur at any of the seven job sites under the new regulatory program? The answers to such questions are not important merely because the asbestos matter stands out as the CCP's most significant trouble case, but also because it illuminates some of the social conditions that make the labor-management safety committee, when it succeeds, an effective regulatory tool. "It was the electricians," says the job site safety engineer, "they were the problem with the asbestos." That is to say, it was the electricians who had spearheaded concern over the asbestos issue, and it was the electricians who had filed all the complaints with CAL/ OSHA. Why? Because the electricians were "downright mistrustful" of the safety program, according to the safety engineer. The DCO agrees. "When I asked the electricians why they brought the

167

The Labor-Management

Safety

Committee

complaints to CAL/OSHA, and not to the safety man, they told me they didn't think he was doing the job, and that they didn't trust him. So I asked them whether they had gone to their labor representatives out there on the safety committee and discussed the problem with them. And they said, 'Ah, they don't know what the hell they're talking about.' . . . Overall, I found very very few people on the job site that felt that way. These electricians were definitely a minority." Why the mistrust? The local Building Trades' Secretary offers this answer: The electricians' local union did not want to get into the safety program to start with. Their business manager was of the opinion that if he represented his people on any kind of safety issue, he was going to have legal problems. So before the safety program had even started, he made it clear that he was not going to participate. I didn't agree with him and told him so: "I think you've been going to too many seminars or something. Because if you don't have the right to stand up for the people you represent, on a safety issue, what good are you?" And all he would say is, "We're liable! We're liable! My attorneys tell me we're liable." "I really didn't want any liability coming out of this thing and dropped in my office," the electricians' business manager explains. For this reason, to shield his union local from the threat of lawsuits, the business manager instructed all his lieutenants on the project not to participate in the CCP. "I told them, 'Look, we can't get involved in this safety program because if something happens to one of our people we're liable." The end result, says the job site safety engineer, is that the electricians "did not feel they had representation on the job." Worse yet, prior to the asbestos incident, the electricians' safety complaints were not being heard and acted upon. "It turned out that the electrical subcontractor was taking the electricians' complaints, the ones they raised at their weekly tool box meetings, and wasn't bringing them to the safety committee," the Building Trades' Secretary explains. "They were taking these beefs and just sitting on them. So the word wasn't getting from the electricians to the safety committee." As a result, "my people were pretty up-

168

The Labor-Management

Safety

Committee

set," says the electricians' business manager. "My guys tell me their complaints were ignored, even though they brought them up weekly . . . They were small things, really, that just required a little attention to take care of. But they just weren't being addressed. My people were pretty upset over that. It was an agitated mess out there." What conclusions should we draw from the asbestos incident? One concerns the role of worker attitudes in a well functioning selfregulation program. If workers lack confidence in the safety committee, as did the electricians, then the self-regulation process is likely to experience serious problems, as when the electricians spurned the safety committee and voiced their complaints directly to OSHA. More broadly, the asbestos incident illustrates just how important it is for the safety committee to win labor's confidence if the CCP's brand of mandated self-regulation is to function effectively. Thus, the asbestos incident vividly illustrates Boden's correlation between high perceived effectiveness and actual effectiveness. Nor was the lesson lost on the CCP's participants. To avoid similar problems in the future, an electrician was appointed to attend the weekly labor-management safety committee meetings. The Building Trades' Secretary explains why: Maybe the best thing we did after the asbestos thing is to appoint a young electrician to sit in on these safety meetings so that he could see how the committee handles these problems. I told the electricians that I wanted an electrician who can learn from sitting on this committee, someone that can go back to his people on the job and tell them what the committee is doing. (My emphasis.) The electrician was appointed to foster confidence among the electricians in the safety committee's effectiveness. "That seemed to calm things down quite a bit," the job site safety engineer observes. Indeed, even the CCP's principal skeptic, the electricians' business manager, is willing to acknowledge the benefits of the change. "I believe that helped matters because my guys didn't feel that anybody was listening to their safety items; that the company didn't want to listen." "But now," he adds, "they feel that someone is paying attention to what they have to say."

169

The Labor-Management

Safety Committee

The other conclusion we may draw from the asbestos incident concerns the nature of regulatory problems. To appreciate the full significance of the asbestos incident, and to understand why it stands out as the CCP's most significant trouble case, it is not enough to know that electricians lacked confidence in the safety program. It is also essential to consider the nature of the regulatory problem at stake—asbestos. "We were all wet in the head about asbestos," as the Building Trades' Secretary puts it. "At that time asbestos was the hottest thing there was. There were lawsuits up the ying yang from those Johns Mansville plants." And because asbestos was such a "hot issue," he continues, "the DCO didn't really have any choice. He had to bring the CAL/OSHA industrial hygienist onto the job site to do an inspection . . . The men just weren't going to stand for the company doing the sampling and analyzing them in their own lab. They wouldn't take that as a final answer, because they wanted someone independent in there." (My emphasis.) This point is important. Although the need for inspection independent of the company partly reflects the electricians' mistrust of the job site safety program, it also underscores their fears and uncertainties concerning asbestos. Stated as a gross generalization, as the fears and uncertainties surrounding a regulatory problem increase (all other things being equal), so does the need for someone independent—not the safety committee or company—to deal with the problem. The electricians' business agent illustrates the point in these terms: At that time everybody was real worried about asbestos. So the men wanted to know what kind of jeopardy they really were in. In other words, they wanted somebody responsible to come out there [an OSHA industrial hygienist] and look at the situation and tell them whether it's safe or not. And until that was determined, they didn't feel they should expose themselves to it. So I think you had to have somebody independent of the job [OSHA] to tell us whether or not it's really safe. It is perhaps tempting at this point to conclude that the asbestos incident highlights a significant limitation with the CCP's brand of mandated self-regulation. The labor-management committee, it

170

The Labor-Management

Safety

Committee

could be argued, is readily equipped to handle easy cases because practical sense is authority enough. The same is true for moderately hard cases, because the authority of OSHA rules will suffice. On the other hand, the safety committee is not well suited to deal with truly hard cases in which high levels of fear and uncertainty surround a safety issue. By their very nature, according to this line of reasoning, such matters are beyond the reach of a self-regulation program based upon labor-management consensus. Such a view, as just noted, was expressed by union officials. For CAL/OSHA officials, however, the logic of this argument is not very persuasive because it ignores the overall procedural framework established by the CCP and the division of regulatory responsibilities it creates. In other words, they say CAL/OSHA's handling of the "asbestos blowup" conformed to established guidelines as outlined in the CCP's "Special Policies and Procedures": On this cooperative compliance project CAL/OSHA will cease all routine safety compliance inspections . . . Additionally, CAL/OSHA will screen all safety complaints received by CAL/ OSHA and refer those complaints to be of non-serious nature to the special labor-management safety committee on this project for investigation and appropriate action. All "serious" safety complaints will be handled according to regular CAL/ OSHA policies and procedures. This cooperative compliance program will address only those health issues routinely handled by safety engineers, for example, noise exposures which are not complex. Other health inspections, including complaints, will be handled according to regular CAL/OSHA procedures, with coordination through the CAL/OSHA District Office Manager and the DCO. In fact, prior to the CCP's implementation at the job site, company officials had discussed the scope of their responsibilities with CAL/OSHA officials. Although the company wanted to assume total responsibility for safety and health matters, CAL/OSHA rejected its request in a letter to company officials.13 For CAL/OSHA officials, then, the asbestos incident does not represent a breakdown in the CCP. Rather, it underscores the important and essential role OSHA must sometimes play under a scheme of mandated self-regulation when particularly difficult regulatory problems arise. Finally, it is important to recognize that

171

The Labor-Management

Safety

Committee

the asbestos confrontation represents an isolated incident, as do the other trouble cases we have discussed. That is to say, the vast majority of job site safety problems resolved by the safety committees were easy cases rather than hard ones, and with few exceptions, no appeal to outside authority (OSHA rules) was required because "practical sense" was authority enough in arriving at a mutually acceptable solution.

Summary In explaining the CCP's overall success, particularly its impact on job site accident rates, the labor-management safety committees thus represent an all-important factor. Prior to the CCP, labor's involvement in construction site safety programs had been hindered by at least two factors: (1) the one-sided administrative development of most construction company safety programs, such as Builder Inc.'s and Constructor Ltd.'s; and (2) the mixture of fear and frustration traditionally impeding labor's participation in job site safety programs. That soon changed as a result of the safety committees' operation, however, in part because the labor representatives made the safety program less threatening and more accessible, and in part because the management representatives enhanced the safety committees' problem solving authority. As a result, the committees expanded the job site safety programs' base of social support beyond management by enlisting labor's support. If nothing else, this corrected a serious administrative deficiency from the standpoint of professional safety management. More important, however, it also enhanced the safety programs problem solving capabilities, particularly in dealing with the momentary hazards and behavioral problems—the easy cases—that make construction one of America's most hazardous industries. As for the hard cases, it is critically important to stress that they represent isolated incidents. To understand why the CCP has been so successful, in other words, it is essential to understand that the vast majority of job site safety problems resolved by the safety committees were easy cases rather than hard ones, and that with few exceptions no appeal to outside authority (OSHA rules) was required. "Practical sense" was authority enough in arriving at a mu-

172

The Labor-Management

Safety

Committee

tually acceptable solution. But as we will now see, this is not to say that OSHA's role in the CCP has been unimportant.

NOTES 1. Philip Selznick, "Focusing Organizational Research on Regulation," in Roger G. Noll, ed., Regulatory Policy and the Social Sciences (Berkeley: University of California Press, 1985), 367. 2. "National Constructors Association/California Building and Construction Trades Council Proposal To Improve CAL/OSHA Effectiveness: Safety and Health Program" (no date). 3. California Department of Industrial Relations Division of Labor Statistics and Research, "Safety and Health Provisions in Private Sector Collective Bargaining Agreements," Technical Report No. 41 (January 1981). 4. While the average injury and illness rate for all workers is roughly 9.3 cases per 100 workers per year, construction workers suffer 15.5 cases per 100 workers per year, according to the Bureau of Labor Statistics. This injury rate is 15% greater than that of the next most hazardous industry, manufacturing. Even though construction workers account for about 5 percent of the nation's workforce, they suffer over 20 percent of all jobrelated fatalities. About 2,500 construction workers lose their lives each year from on-the-job accidents. In 1978, job-related injuries meant that construction workers lost more than 945,000 working days. (Building and Construction Trades Department, AFL-CIO, Safety and Health Manual For Building And Construction Trades Councils [no date], 1). 5. "National Constructors Association/California Building And Construction Trades Council: Safety And Health Program" (no date). 6. Leslie Boden, et al., "The Impact of Health and Safety Committees: A Pilot Study " (Harvard School of Public Health, unpublished), 21. 7. From management's point of view, this was essential to guard against the threat of politicization. "The stewards tend to politicize the problem instead of seeking a meaningful solution," as a safety department official puts it. In addition, this also helps to explain the one-sided development of Builder Inc. and Constructor Ltd.'s safety programs, examined in chapters 3 and 4. The threat of politicization, of "getting sucked into a labor dispute" as one safety engineer puts it, made safety department officials so wary of labor's participation, including in safety committees, that they confined their administrative efforts to harnessing management's involvement. The "political risks" associated with the stewards' involvement were too high. " I ' m just not willing to have our safety program subjected to a safety committee with stewards," as a Constructor Ltd. safety department official puts it. "They really diminish the effectiveness of communication. " 8. See Chester Barnard, The Function of the Executive (Cambridge Mass.: Harvard University Press, 1968). The phrase comes from Philip Selznick's "Foundations of The Theory of Organization," American Sociological Review, 13 (1948), 2 5 - 3 5 .

173

The Labor-Management

Safety

Committee

9. As an adjunct to the on-going safety and health program, the committee shall conduct inspections to assure continuing compliance with the CAL/OSHA Safety Orders . . . The committee shall review all Reports of Safety Problem forms submitted by employees to the contractor's Safety Department since the last meeting . . . Other outstanding or unsolved safety matters relating to compliance with the CAL/OSHA Safety Orders will be considered. (My emphasis.) 10. The safety engineer describes the steps taken in these terms: I developed evacuation plans in case we had a problem on that structure. They were designed for the possibility that the stairwells were blocked for some reason, that the elevator didn't work, and that the hoist on the top deck of the structure wasn't ready to move people. We had an American 9310 crawler crane with 310 feet of stick [boom] on it. It was building the structure right next door to the structure, and it had enough boom to pull anybody off the side of that structure at any level. So what I did was make a man basket and a litter handy just in case we had a real problem. I wasn't required to do it by law, but I wanted to make every effort to be safe. I let the labor reps know what I was doing, and I think it made them feel a lot better. And I think that shows you how the labor reps can help you build a rapport with your men on the job. They can get back to their people and tell them, "Hey, this man isn't being unreasonable. He's doing what he can and he's giving us all the reasons behind his decision." I think they understood that we really were trying to make conditions favorable without getting ridiculous. 11. "I told them what they're immediately going to do to deal with the problem," recalls the DCO. His report lists the following recommendations: (1) Change the filter more frequently. (2) Keep individual in shack. Probably will have to air condition it to make it more tolerable. (3) Continue use of vacuum on top of board. Shield from wind. Put container below board to catch any slough from drilling. This material to be properly disposed. (4) Dump water through a filter and properly dispose of filter. 12. The job site safety engineer elaborates on the test results in similar terms: The exposures people were getting, as read by OSHA's air samples, were many many times less than the allowable exposure rate from OSHA. [The permissible exposure level is two fibers, longer than five micro meters, per cubic centimeter of air.] The one man that was exposed to more than the two fibers rate was the cutting man working in the cutting booth. And we already knew that from the beginning. We had him in fresh air [a self-contained respirator! and all the protective clothing. All the other tests showed that the people who felt they were being exposed, who were working around the cutting

174

The Labor-Management

Safety

Committee

shack, were actually being exposed to anywhere from ten to a hundred times less than the allowable limit. 13. The letter states in part: We feel that very basic health problems could be handled by a labormanagement committee that receives health training. More importantly, our DCO does have sufficient training to screen any health complaints, offer assistance to the committee on any health questions that it may have, and if in doubt, to consult with a CAL/OSHA Industrial hygienist to determine the next course of action. For us to consent to a health component, we would at a minimum, have to . . . [require] a fulltime Industrial Hygiene staff on any project. (My emphasis.)

6 Flexible Regulatory Enforcement

In explaining the Cooperative Compliance Program's success two factors stand out as especially significant: the roles of the labormanagement safety committee and the Designated Compliance Officer (DCO) assigned to each project by California OSHA to monitor the self-regulation program. Having examined the safety committee's role in the previous chapter, let us now turn to the DCO's role in the program. At first glance, the DCO's involvement is puzzling. "Selfregulation" is a keynote of the CCP. Yet, all the DCOs are CAL/ OSHA inspectors, and all the DCOs are in fact very much involved in construction site regulatory affairs. Indeed, each DCO spends much more time "monitoring" a CCP site (about ten times as much as a rough estimate) than he does inspecting other comparable sites as a CAL/OSHA inspector. In sharp contrast to the CAL/OSHA inspector, though, the DCO's participation has been welcomed. As one job site safety engineer observed, "The DCO has been a total asset to our safety program." What makes the DCO an asset? Put simply, depending on the circumstances, the DCO can be a tough cop-like rule-enforcer, a problem-solving consultant, or a combination of the two. This blending of administrative styles has transformed CAL/OSHA's presence on the construction site, according to participants, and has made the DCO singularly equipped to support and assist the

176

Flexible

Regulatory

Enforcement

job site safety program in ways the CAL/OSHA inspector and job site safety engineer, who lack the DCO's breadth, cannot. Hence, an understanding of the DCO's role is central to an understanding of the CCP's success. But the significance of the DCO's role does not stop here. That role is also well worth examining from a broader policy perspective, for the CCP addresses one of the persistent dilemmas of social regulation and its reform. To persuade or punish? That is to say, should regulatory agencies pursue a cooperative or punitive style of enforcement and behave like accommodative consultants or strict policemen? Neither approach can be easily dismissed because each has much to recommend it; winning cooperation and coercing compliance are both essential to an effective regulatory program. Yet the two approaches may well operate at cross purposes, according to analysts, because the strategies fit uneasily with each other as a result of conflicting imperatives. On the one hand, the tools of cooperative enforcement can easily lead to slack enforcement and undue leniency, thereby weakening deterrence and undermining regulatory effectiveness. On the other, the tools of punitive enforcement can just as easily destroy agency-industry cooperation as a result of adversarial, legalistic, and unresponsive enforcement. 1 Hence the dilemma. In devising an enforcement strategy every regulatory policymaker faces conflicting demands raised by the inseparable yet opposing requirements of an effective regulatory program. In an attempt to reconcile this dilemma some analysts have recently proposed "flexible enforcement" as an alternative regulatory strategy.2 The critical question, according to proponents of this approach, is not which enforcement strategy regulators should use—cooperative or punitive—but when. As a matter of official policy regulators might distinguish between "bad" and "good" firms, for example, and employ the tools of punitive and cooperative enforcement accordingly to achieve compliance, thereby maximizing the virtues of each approach while minimizing their vices. A flexible strategy is hardly novel, of course, since some studies have found regulatory agencies using different enforcement strategies for bad and good firms, as a matter of practice. 3 What is new, though, is the proposal to incorporate those differences officially

177

Flexible Regulator]/

Enforcement

into the legal structure by developing distinct regulatory policies in light of those variations. So conceived, the Cooperative Compliance Program represents a prime example of flexible regulatory enforcement. Is the flexible model a promising alternative to the cooperative and punitive models of regulatory enforcement? As will be made clear in the course of our discussion, California's occupational safety program provides an illuminating case study for exploring this question. Now over eighty years old, it is the first occupational safety program in the nation to have significant administrative experience with all three regulatory approaches. Since that experience vividly illustrates the characteristic tensions and resulting dilemmas associated with cooperative and punitive enforcement strategies, moreover, it provides an instructive historical perspective for assessing OSHA's new strategy of flexible regulatory enforcement. The chapter is divided into three parts. The first two parts set the stage for our discussion of flexible regulatory enforcement by examining the cooperative and punitive models in turn. To appreciate why regulatory policymakers have been attracted to the cooperative model, we begin our discussion by noting some of the characteristic empirical and normative assumptions closely associated with this form of regulatory governance. After considering some virtues of the cooperative model, we examine one of its principal vices, the problem of lax enforcement, in light of California's administrative experience. In part 2 we pursue a similar though more detailed line of inquiry with regard to punitive regulatory enforcement. After noting some of the characteristic normative and empirical assumptions closely tied to this form of regulatory governance, we again turn to California's administrative experience, first, to consider some of the political and administrative factors surrounding California's shift to a punitive enforcement strategy in its occupational safety program, and second, to illustrate one of the major weaknesses associated with the punitive model—the problem of legalistic enforcement. In part 3 we turn to flexible regulatory enforcement by examining the two central features of the DCO's enforcement style: the DCO as enforcer and the DCO as consultant.

178

Flexible Regulatory

Cooperative

Regulatory

THE COOPERATIVE

Enforcement

Enforcement

MODEL

Why should regulatory policy makers structure the enforcement process to emphasize persuasion, consultation, and accommodation? Although the reasons are complex, three factors stand out. One concerns the nature of the regulated activity itself. Since regulators are dealing with legitimate enterprises whose products and services are valued by the community (producing chemicals, manufacturing automobiles, constructing power plants) it seems desirable to protect as well as control those activities. If a chemical plant is polluting the air, for example, the regulator should usually try to clean it up without stopping production. To put the point more broadly, regulation should seek to protect the core activity itself (such as chemical production) while controlling for certain externalities associated with that activity (such as air pollution). It is important to recognize this protectionist impulse in regulation, for it could be argued that this elementary social fact serves to distinguish regulation from many other forms of governmental social control. When government is hostile to the activity in question, for example, as with drug trafficking, robbery, or arson, repression of the activity itself is the goal of law enforcement. By contrast, when the regulated activity is the source of something we value, and because many regulatory violations are morally ambiguous (malum prohibitum rather than malum in se), the regulatory process generally "entails respect and deference to the system of private order." More to the point, the regulatory process generally manifests "an inherent strain toward cooperation between regulators and regulated." 4 A related assumption concerns the motives of regulated firms. Put simply, the cooperative model is premised on the view that regulated firms and their managers are generally disposed to obey the law. That is to say, what motivates regulated firms to comply with regulatory requirements is not the threat of legal sanctions by itself, but also an array of other inducements,—for instance, "moral or intellectual commitment to underlying objectives, belief in the fairness of the procedures that produced the regulations, pressure from peers, competitors, customers, or employees, con-

179

Flexible

Regulatory

Enforcement

formity with a law-abiding image." 5 Hence, regulated firms should be treated as responsible and reasonable citizens motivated by good faith and willing to heed advice. 6 To put the matter another way, they should be treated in a way befitting a responsible corporate citizen, not punitively as if a criminal, but as a participant in a cooperative problem solving enterprise. Probably most important, according to this logic, regulators should be responsive to the legitimate needs and interests of regulated firms, particularly to overcome the unavoidable problems associated with enforcing overinclusive and underinclusive regulations. When trivial violations are involved, for example, they are overlooked. When a firm has legitimate reasons for noncompliance under the circumstances, as when strict enforcement would involve unreasonable costs or contribute little to reducing harms, the regulator adapts the law accordingly. And when regulations fail to address a particular hazard adequately, the regulated firm is induced to go beyond minimal legal requirements. 7 Finally, the cooperative approach is closely tied to the view that winning the cooperation of regulated firms is by and large the most effective way of carrying out a regulatory program. This, in turn, leads to the conclusion that the regulator should resemble a consultant in some cases, a politician in others, and a combination of the two in still others. With respect to the inspector-as-consultant, perhaps the most obvious instances involve information sharing. Assume for illustration that a regulatory enforcement official possesses information which a regulated firm does not (say, for instance, knowledge about the latest abatement techniques) or that company managers intimately familiar with plant operations possess information which the regulator does not (say, for instance, suspected sources of harm). Since exchanging information under these and similar circumstances makes obvious sense from the standpoint of regulatory effectiveness, it is not difficult to see why the regulator should act more like a management consultant than a stringent policemen, not only to encourage the voluntary exchange of information but also to encourage regulated firms to heed their advice.8 Likewise, consider the regulator as politician. Just as the regulator-as-consultant can promote regulatory effectiveness, so too the regulator-as-politician. Regulated firms are sometimes led to resist

180

Flexible Regulatory

Enforcement

regulatory requirements, for example, by a misunderstanding of their fairness, legitimacy, and rationality. In consequence of this, regulators should use their powers of persuasion with regulated firms to deepen their understanding and strengthen their commitment to the purposes of regulation. 9 As the inspector of factories in Great Britain observes: "Better compliance most of the time [with occupational safety rules] can be secured in most premises if one persuades the occupier of the need for compliance as a matter of good practice, rather than to avoid conflict with the law." 1 0 Like a good politician, in other words, the regulator should play a consciousness raising role to strengthen the system of voluntary compliance. Thus, from the perspective of the cooperative model the regulator's critical task is winning the cooperation of firms disposed to obey the law. All this is not to say that the cooperative model denies the existence of "bad" firms, but only that "largely good" firms are its major preoccupation. It is a matter of selective emphasis in which the problem of recalcitrant firms recedes into the background as does the corresponding need for stringent and punitive enforcement.

T H E P R O B L E M OF L A X

ENFORCEMENT

If there is an overriding shortcoming characteristic of cooperative regulatory enforcement, it is the problem of lax enforcement. California's administrative experience is a good case in point. For more than half a century California's occupational safety program closely approximated the cooperative model of regulatory enforcement. The California Industrial Accident Commission, charged with enforcing worker safety laws, stated in 1914: The attitude of the Safety Department toward employers and employees is not one of compulsion, but of cooperation. It is expected that compulsion will have to be resorted to in rare cases only. The letters on file show that the keenest interest is evinced by manufacturers who express in highest terms their appreciation of the practical suggestions offered by [Commission] safety engineers. 11 California OSHA's immediate predecessor, the Division of Industrial Safety (DIS), also resorted rarely to prosecution. In the five

181

Flexible Regulatory

Enforcement

years prior to its reorganization under OSHA the DIS filed fewer than half a dozen prosecutions in any single year. In the words of California's Auditor General, DIS "safety engineers functioned almost like consultants to industry." 12 The DIS's regulatory approach was never seriously questioned until 1971, when a tunnel explosion killing 17 workers triggered an investigation into the accident and the DIS itself. The legislative committee created to investigate the DIS issued a report highly critical of the Division's performance. "Testimony from Division Safety Engineers, private safety consultants and others," the Report states, "showed that the present Division administrators either fail to understand the importance of enforcement or have embarked on a policy of non enforcement." According to DIS records, for example, in 1970 there were 21,952 disabling worker related injuries and 122 deaths in the California construction industry. In addition, the Division's Construction Section recorded 33,400 safety code violations. Yet only three employers were prosecuted that year. Why? It could be argued, of course, that cooperative regulatory enforcement was working, on the whole, and that most employers were complying without the threat of stringent enforcement, thereby obviating the need for numerous prosecutions. To an important degree this may be true. But there is also evidence that cooperative regulatory enforcement had triumphed over time by pushing punitive enforcement almost completely out of the regulatory process. As the legislative committee's report states: Among evidence taken were cases where Division safety engineers were prevented from citing employers for unsafe conditions because of a refusal by their superiors to provide proper Labor Code or Safety Order interpretations. Other Division personnel testified . . . that safety orders enforced by men in the field were countermanded by Division administrators without benefit of a visit to the scene of the violation or other special knowledge of conditions involved . . . In several instances safety engineers requested enforcement procedures, including prosecution of employers who had a history of repeated violations, some of which resulted in death or injury to workers, only to meet with repeated denials by Division administrators . . . [I]t is clear the Division is at present failing to adequately enforce existing Labor Code and Safety Orders. 13 Though hardly novel, the moral we may draw from this experience is an important one: as reliance on the tools of cooperative

182

Flexible Regulatory

Enforcement

enforcement increases, so do the risks of lax enforcement and undue leniency. To put this development in more general terms, California's administrative experience serves to illustrate a weakness symptomatic of responsive law. A central motif of that model, according to Nonet and Selznick, is a "morality of cooperation." 14 If that is so, then it may follow that California's occupational safety regime, in its quest to make regulation a cooperative problem solving enterprise, evokes the ethos of responsive law in a fundamental way. More precisely California's occupational safety regime calls to mind a characteristic vulnerability associated with responsive legal institutions. Responsive law "presumes wide grants of discretion, so that official conduct may remain flexible, adaptive, and selfcorrective," Nonet and Selznick write. "But responsibilities are more elusive when they lose precision, and there is a risk that commitments will be diluted as flexibility is sought. Hence, openness degenerates steadily into opportunism, that is, unguided adaptation to events and pressures." 15 As our brief account in this section suggests, much the same can be said for California's administrative experience with cooperative regulation. It is also worth noting that in some important respects California's occupational safety program, far from being unique, typified the nation's traditional structure of occupational safety regulation. Until the early 1970s, for example, regulatory enforcement was a state responsibility, not a federal one, and all the programs stressed consultation and cooperation with employers instead of tough prosecution-minded enforcement. In addition, state occupational safety programs in general came under increasing fire for lax enforcement during the late 1960s and early 1970s. For, as we have seen in chapter 1, occupational safety issues had acquired an unprecedented sense of urgency—a "crisis in the workplace"— reflecting familiar yet not well understood changes in the nation's social, cultural and political climate. What is fairly clear, though, is the end result of those developments: the federalization of occupational safety regulation under the OSH Act, and the transformation of the basic character of these programs—that is, a shift from cooperative to punitive regulatory enforcement. As subsequent discussion will reveal, the two developments are closely related.

183

Flexible Regulatory

Punitive Regulatory

Enforcement

Enforcement

Like cooperative regulatory enforcement, punitive regulatory enforcement also has strengths and weaknesses, many of which are vividly illustrated by the administrative development of California's occupational safety program. In our discussion we first note some of the underlying premises generally associated with the punitive model, and then describe some of the political and administrative factors surrounding the rise of punitive regulatory enforcement in California, and finally discuss some of the characteristic problems resulting from that development. THE PUNITIVE

MODEL

It is useful to ask what assumptions might lead a regulatory policy maker to choose a stringent, punitive, and adversarial strategy as the mainstay of regulatory enforcement. First and probably most important, the punitive model is usually premised on a view of regulated firms as "amoral calculators," rationally weighing the benefits of non-compliance against the probability and costs of punishment. 16 Like Oliver Wendell Holmes' strategy of analyzing law from the "bad man's" point of view, the punitive model seeks to "wash with cynical acid" all idealistic fancies about the willingness of regulated firms to comply with regulatory requirements. 17 On this view, acting on the assumption that regulated firms will often resist complying with legitimate regulatory requirements except for the threat of aggressive inspections and severe legal penalties, the problem of recalcitrant firms is a significant one. Hence, as with the Holmesian bad man, compliance is best won by punishment. To stress the punitive model's preoccupation with amoral calculators is not to say that all firms are largely bad, of course, but only that the punitive model has its own selective focus on a particular type of firm. And one all-important consequence of that analytical starting point is a punitive-adversarial regulatory strategy. A related consideration stresses the indirect benefits of punitive regulatory enforcement. Of these, perhaps the most important are changes in the management of regulated firms resulting from the threat of stringent enforcement. As we saw in chapter 3, for

184

Flexible Regulatory

Enforcement

example, OSHA's seemingly "horrendous threat" strengthened Builder Inc. and Constructor Ltd.'s safety programs in a variety of ways, particularly by endowing safety department officials with significant new authority. There is no reason to believe this is an isolated example. To the contrary, because it is not fanciful to suppose that many firms have responded to the generalized threat of tough enforcement in similar ways, it could be argued that this represents the most positive effects of a punitive enforcement strategy. 18 Finally, it is important to note the close ties between punitive enforcement and "voluntary" compliance. Drawing on his experience with the wartime Office of Price Administration, for example, Chester Bowles concluded that about 20 percent of all firms would automatically comply with any regulation, 5 percent would attempt to evade it, and the remaining 75 percent were also likely to comply, but only if the 5 percent were caught and punished. 1 9 On this view, the problem of recalcitrance is a significant one, not because most regulated firms are essentially bad, but because a few bad apples may well spoil the barrel. Most firms are willing to obey the law, in other words, provided that their law-breaking competitors are caught and punished. But if weak enforcement results in the evaders going unpunished and their law-abiding counterparts perceive an unfair advantage, then a widespread breakdown in voluntary compliance can occur. 20

CALIFORNIA O S H A ' s

LEGALIZATION

As a broad generalization, during the 1960s and 1970s "regulatory reform" betokened more precise regulations, more detailed operating procedures, and more stringent requirements. This means that the punitive model emerged as a keynote in many regulatory arenas—including, for instance, environmental protection, consumer product safety, anti-discrimination, and worker safety. Because much remains to be learned about the dynamics of these developments, it is worthwhile to examine OSHA's administrative experience. Indeed, OSHA's experience is especially instructive; for some regulatory agencies have become more legalized than others, and OSHA developed a reputation for being more legalistic than most. To see why, let us sketch some of the political, legal,

185

Flexible

Regulatory

Enforcement

and administrative factors closely tied to CAL/OSHA's legalization. Then, to illustrate why legalistic regulatory enforcement can be a problem, we will discuss some of the perverse side effects associated with CAL/OSHA's new regulatory posture. Political Factors

As we have seen in chapter 2, the industrial unions have been one of OSHA's most powerful political constituencies. As we have also seen, their regulatory ideology stressed law's punitive role in occupational safety regulation. Because of this, they opposed OSHA's decentralization by way of state-run occupational safety program, so-called "state-plan" OSHAs. Nevertheless, despite their intense opposition, 23 state plans were approved, including one for California on April 24, 1973. So the industrial unions resorted to another strategy to ensure rigorous enforcement under these decentralized conditions. "The Nixon administration was pushing state plans—good, bad, or indifferent," a Washington-based industrial union official close to the situation recalls. "And they undertook nothing to make the plan more effective in terms of supervision by federal OSHA . . . So the industrials put a heck of a lot of pressure on FED/OSHA to monitor these state plans very closely." This the unions did in two major ways. First, according to the same union official, they "fought for tough monitoring standards . . . OSHA had to establish a set of guidelines for monitoring the state plans and we had numerous meetings during that time with the OSHA staff people in Washington—the state plan monitoring people—for the purpose of going over the proposal for monitoring and seeing if we could make them as tough as possible." Second, to ensure vigorous implementation of these monitoring standards, another Washington-based union official observes, the industrial unions "never let up on the pressure." Until the Reagan administration "we always had a lot of access to OSHA and the people who administer state plans." As the official recalls: We [AFL-CIO Industrial Union Department officials] met with OSHA's state plan monitors whenever we felt there was a situation that would warrant our coming over there and ask what

186

Flexible Regulatory

Enforcement

was going on . . . We were always asking them what they were doing to maintain a tough stance and keep the states as honest as possible. The law requires state plans to be as effective as federal OSHA. Those are the exact words. So there's a standard of performance written into the law. And if we saw something not being done, then we had a pressure point. We'd go over to OSHA and say, "Hey, California isn't issuing as many serious citations as FED/OSHA." And if we needed to, we'd back that up with political pressure from the Hill. OSHA officials, it should be noted, confirm these observations. As a California based FED/OSHA Regional Administrator recalls, "The AFL-CIO's Industrial Union Department was cautioning us over and over again about our monitoring of state plans, mainly through the pressures brought by their national headquarters on our people in Washington . . . Over time I think that made a lot of difference."

Administrative Factors To make a difference, though, these political pressures exerted in Washington had to be translated into administrative pressures exerted on state-plan OSHAs. That process is vividly illustrated by CAL/OSHA's administrative development. When CAL/OSHA enforcement activities began in January 1974, federal OSHA also began monitoring the state agency's performance, as mandated by the OSH Act. More accurately, to ensure a program "at least as effective" as the federal one, federal OSHA scrutinized CAL/OSHA's enforcement efforts above all. "The meat and potatoes of our monitoring program," according to a FED/OSHA monitor, "is to evaluate how CAL/OSHA does enforcement." To this end, a staff of about twenty FED/OSHA monitors were based in California to inspect, review, and evaluate the effectiveness of CAL/OSHA inspectors, particularly the number of inspections performed and citations issued.21 FED/OSHA used three different monitoring techniques for this purpose. The first monitoring technique was the "accompanied visit," a kind of on-the-job evaluation in which the federal monitor accompanies the state inspector during the entire inspection in order "to observe the skills of State compliance . . . personnel during

187

Flexible Regulatory

Enforcement

an actual operation," as OSHA's Field Operations Manual puts it. 22 Another oversight tool, "case file review," was an on-going statistical sampling of case files to evaluate how well state inspectors are documenting their inspections. The third monitoring technique, "spot check monitoring," is a follow-up inspection by Fed/OSHA monitors "to judge the quality of one or more aspects of state inspections," as the OSHA manual puts it. "These visits," the OSHA manual explains, "may provide general background on the effectiveness of inspection and abatement procedures practiced by the state or may focus on particular parts of the enforcement process brought into question by other phases of monitoring and evaluation." 2 3 On this score, OSHA monitors were critical of CAL/OSHA's performance from the outset and remained so in their semi-annual evaluation reports. Year after year, OSHA monitors strongly criticized CAL/OSHA inspectors for failing to maximize the number of citations issued, failing to maximize the amount of penalties, and failing to maximize the number of cases upheld on appeal. As enforcers, they charged, CAL/OSHA inspectors were not tough enough. After more than five decades of cooperative non-legalistic regulatory enforcement, in other words, inspectors were balking at their new role under the OSH Act. They were reluctant cops. "Very few CAL/OSHA inspectors had any empathy for the CAL/OSHA program," as one top CAL/OSHA official put it. "If there's a violation, they were supposed to cite. But we found a great resistance on the part of a lot of the staff, a great reluctance, to give civil penalties. It was an attitude of I don't want to be an enforcer." 2 4 To remedy these perceived inadequacies of enforcement, federal monitors prescribed centralization. CAL/OSHA's leadership must issue more numerous and detailed directives to inspectors, federal monitors insisted, coupled with more vigilant monitoring of their behavior, all in order to increase the production of citations. 25 According to CAL/OSHA officials, they had little choice but to respond accordingly. "The Feds have budgetary leverage over us," a CAL/OSHA official explains. "They provide fifty percent funding." Over the next five years, 1974 to 1979, CAL/OSHA officials thus developed an elaborate system of administrative controls to overcome the "reluctant cop" syndrome and increase the production of citations.

188

Flexible Regulatory

Enforcement

One example was the accompanied inspection, which required CAL/OSHA supervisors to accompany compliance officers periodically on inspections, and which proved very effective as an administrative control mechanism, according to a top CAL/OSHA official. "We found that on accompanied inspections the percentage of violations being found [compared to unaccompanied inspections] was almost nine to one." Another example was the CAL/OSHA Monitoring Unit. Created in 1978 and directed by CAL/OSHA's Assistant Chief, the monitoring unit had "the ongoing responsibility of checking the quality and adequacy of file documentation" and to "insure that any deviation from Division policy [was] promptly identified and corrected." 26 To scrutinize each inspector's "effectiveness," the Unit created a computerized management information system, which tabulated his or her monthly production of inspections, citations, types of citations, and so forth. Because of this, each inspector's effectiveness was scrutinized as never before. It is as if CAL/OSHA had created a dual system of inspection, one directed at employers, the other at inspectors. As these observations suggest, CAL/OSHA's legalization reflected a mixture of factors—legal, administrative, and political. What set the stage for CAL/OSHA's legalization in the first place was the statutory requirement of the OSH Act itself, that state-run programs be "at least as effective" as the federal program, and which for this purpose required federal OSHA to monitor the states' performance. But note just how vague this statutory mandate is. What exactly is meant by a state program being "at least as effective" as the federal program is "soft" and "mushy" in the words of a top FED/OSHA official, and therefore subject to a variety of legitimate interpretations. So why did FED/OSHA flesh out this ambiguous goal by stressing the production of citations above all? This question leads us to the role of administrative and political considerations. As students of organizational behavior have repeatedly observed, organizations confronted with vague goals tend to adopt a number of simplifying devices to deal with that ambiguity in a manageable way, such as readily measurable objectives as proxies for unmeasurable goals.27 So too for OSHA and other regulatory agencies. 28 More specifically, to simplify the oth-

189

Flexible Regulatory

Enforcement

erwise indeterminate goal of state-run programs being "at least as effective" as the federal one, top OSHA officials adopted easily measured activity-based goals, such as the number of citations produced. On this view CAL/OSHA's legalization reflects the imperatives of administrative rationality. Although true to an important degree, this characterization of CAL/OSHA's legalization still does not adequately explain the precise pattern of simplification adopted by OSHA. Why the production of citations? Why not stress the comparative effectiveness of state and federal programs in other terms, say, accident rate statistics or number of consultations provided? To see why, think of political considerations, particularly the role of industrial unions. Their role in these developments must be stressed for several reasons. The industrial unions assumed a "continuous watchdog role" with regard to OSHA's enforcement efforts. They have also stressed the production of citations above all as a result of their punitive regulatory ideology. Most important, though, during the period under discussion the industrial unions were OSHA's most influential constituency. In this framework, if one considers the fear of criticism that so often motivates regulatory officials,29 it is hardly surprising that federal monitors chose to simplify their monitoring task in the particular way they did. By emphasizing the production of citations, OSHA officials satisfied not only an important administrative goal (readily measurable objectives) but also an important political goal (reduction of criticism by a powerful political constituency). The Problem of Legalistic Enforcement There is no doubt that CAL/OSHA's administrative development deeply influenced the conduct of regulatory business, according to agency inspectors. They point to two organizational constraints as being most significant—"getting numbers" and "building a case." As for getting numbers, CAL/OSHA inspectors felt the pressure to "produce"—write citations—much like a traffic cop with a quota of tickets to write. "You definitely feel the pressure for numbers," said a CAL/OSHA inspector. "Not only for numbers in terms of number of inspections, but number of violations per inspection, and number of serious violations, and so on." Another inspector

190

Flexible Regulatory

Enforcement

puts it, "We're under the gun to produce. It's almost like cops writing tickets out on the street. If one guy is writing 100 tickets a month and his buddy is writing 10, the sergeant wonders what the hell is going on with this guy that's writing 10. So he pulls him in and talks to him." Inspectors are also well aware of the source of such pressures. "The problem" as one inspector puts it, "is that the Feds count tickets. And the Feds pay CAL/OSHA 50 cents on the dollar." The pressures also produced rather dramatic results. From 1974 to 1981, for example, serious citations issued by CAL/ OSHA inspectors increased 881 percent. 30 In like mannner, federal monitors also criticized CAL/OSHA inspectors for not producing enough citations that could be sustained on appeal to the CAL/OSHA Appeals Board.31 "The Feds have been very critical of our case documentation," a CAL/OSHA official observes. "It's just like a police officer. There's a minimum amount of documentation you have to have to sustain a penalty when it goes to appeal. And the Feds have never been satisfied with us in that respect. They want every case fully documented whether it goes to appeal or not." (My emphasis.) To satisfy FED/OSHA's demands, he adds, "we literally had to rewrite the policy and procedures manual, step by step, as well as go out into the district offices and do case file reviews to see if they had been done properly." As a result, CAL/OSHA's Policy and Procedures Manual contains dozens of pages detailing the directives required to document an inspection and build a case. Further, the manual prohibits any leeway in following those directives; inspectors must conduct all their inspections as if their citations will be appealed. 32 Thus, after fifty years or so of emphasizing a cooperative enforcement strategy, federal monitoring, buttressed by industrial union pressure, transformed California's occupational safety program into a legalistic citation-producing enforcement agency. This shift, according to CAL/OSHA inspectors formerly with the DIS, has made regulatory enforcement more effective in some very important respects. When prosecuting willful violators of safety regulations, for example, or when shutting down hazardous equipment, enforcement officials now had more effective regulatory tools at their disposal and are less frustrated compared to the antiprosecutorial administrative framework of the previous regulatory regime. In short, many of the problems of lax enforcement and

191

Flexible Regulatory

Enforcement

undue leniency besetting California's Division of Industrial Safety have been remedied. But just as there are benefits, there are costs. Legalism If there was an overriding characteristic of this shift from cooperative to punitive enforcement, it was that now, more than before, legal energies were to be devoted to ensuring close accountability to rules. Broadly understood, if this led to an overriding emphasis on rules, it also meant that the regulatory posture of California's occupational safety regime changed in a fundamental way. As attested by the central importance of rule accountability, the new regulatory regime evoked an image of law's role in society that in significant respects approximates Nonet and Selznick's autonomous model of law, particularly by calling to mind the ethos of modern bureaucracy, a form of governance that is a paradigmatic example of autonomous law. Nonet and Selznick write: In bureaucracy a pervasive formalism attenuates the sense of purpose. The focus is not on results but on regular observance of prescribed routines . . . The bureaucratic style assumes that rationality is forever precarious and must be vigilantly guarded against the subversive intrusions of nepotism, corruption, and political manipulation. Therefore the stress is on barriers and dividers—to wall off the particularistic influences of kinship or personal influence, to insulate administration from politics, to sustain the integrity of officialdom. The chief bureaucratic device for ensuring official integrity is the narrowing of administrative discretion: Policies are codified; decision making is routinized; delegation is limited; authority is concentrated at the top. As in autonomous law, rules are the chief vehicles of administrative regularity,33 (My emphasis.) When we add to this one of the characteristic problems associated with autonomous law—legalism—it is hardly surprising that the shift from cooperative to punitive enforcement has produced perverse effects, as when it induces enforcement officials to "go by the book" and concentrate on trivial offenses. "Today we're issuing a lot of chickenshit citations," an inspector explains, "because you go out there and you feel that you have to hammer on the guy to up your own quota, so to speak, and write a lot of other

192

Flexible Regulatory

Enforcement

stuff that is really kind of meaningless." This is not to say that all or most citations are "chickenshit," he stresses, but only that many are. "If you don't write enough of this stuff you look bad yourself . . . So you're out there writing a whole bunch of chickenshit stuff because somebody is looking for numbers." There is good reason to believe, moreover, that this problem is not an isolated one. One study of enforcement data, for example, showed that from 1973 to 1976 over 98 percent of all OSHA citations were for non-serious violations that posed little danger to workers, while only 2 percent of the citations were for willful and repeat violations.34 According to inspectors, the pressure to "get numbers" and "build a case" also diverts their efforts in other more serious ways. Probably most important, it limits their ability to solve problems and cuts off needed cooperation with employers. "Everywhere I go," as one inspector puts it, "I'm an adversary . . . Most of the time we can't tell an employer how to deal with a problem because if you spend a lot of time out there consulting, and you don't write a lot of stuff, then your boss will tell you, 'Hey, you're not a consultant. You're a compliance guy. So let's go out there and hammer them a little bit harder.' It's not good for the [CAL/OSHA] program. The employers are not happy with it. The men themselves in the field are not happy with it." Always building a case in anticipation of an appeal produces similar effects. Increased documentation requirements transformed the regulatory process into a "deadly paperwork game," in the words of one inspector. "Now we have to justify everything we do," he adds, and that requires "detective work." "We tend to treat the employer almost like a criminal," another inspector observes: You have to word your questions in such a way that its not obvious what you're trying to establish. You have to play detective and determine what went on twenty minutes or two days ago. Management certainly doesn't like that. It puts them on the defensive. It gets to the point where you can't get free discussions with anyone because they're afraid they're going to say something to jeopardize themselves. That really can affect your whole relationship. As soon as they find out that you're trying to determine the circumstances surrounding an unsafe condition and that you're going to issue a citation for it, they don't want

193

Flexible Regulatory

Enforcement

to answer any of your questions. They want an attorney there and the whole bit. (My emphasis.) To illustrate the ways in which legalistic enforcement can cut off agency-industry cooperation, recall Builder Inc. and Constructor Ltd.'s administrative development. (See chapter 3 above.) Suffice it to observe that legalistic enforcement resulted in both companies abandoning their original policy of full cooperation with OSHA inspectors for a much more adversarial and defensive strategy, all designed to frustrate OSHA's enforcement efforts before, during and after inspections. SUMMARY

The cooperative and punitive models reflect quite different images of regulatory governance. If one adopts the standpoint of the cooperative model, then the system of regulatory authority is perceived first and foremost as a cooperative problem solving effort. On this view, effective communication is the key to treating regulated firms and their managers as rational and responsible participants in the regulatory enterprise. If one adopts the standpoint of the punitive model, on the other hand, then the regulatory system is preeminently an instrument of governmental social control, a one-way projection of authority imposed from above, and demanding of regulated firms strict compliance with regulatory requirements. Each model is coherent and has attractive features. Just as regulators need to elicit the active cooperation of regulated firms in diagnosing problems and identifying solutions, they also need to deter evasion of regulatory requirements. Because the two strategies fit uneasily with each other, however, the tools of cooperative and punitive enforcement can operate at cross purposes. When persuasion, consultation, and accommodation increase (as the DIS's administrative experience illustrates), so do the risks of lax enforcement, undue leniency, and weakened deterrence. Conversely, as CAL/OSHA's administrative experience illustrates, the tools of punitive regulatory enforcement can just as easily destroy agency-industry cooperation as a result of adversarial, legalistic, and unresponsive enforcement. This is not to say that cooperative

194

Flexible Regulatory

Enforcement

strategies necessarily lead to lax enforcement, or that punitive strategies always result in legalism, but it does say that they have a propensity to err in those directions, to varying degrees, particularly when either approach governs an agency's overall enforcement strategy. As James Q. Wilson writes: Few organizations . . . can tolerate having more than a single governing ethos: the need for morale, for a sense of mission and of distinctive competence, and for standard operating procedures means that competing norms will be suppressed, ignored, or isolated.35 Thus, regulatory enforcement has two broad characteristics, two characteristic modes of operation, two poles about which debate over regulatory enforcement tend to cluster, and which can be summed up by two slogans: "regulation is a cooperative problem solving enterprise" and "regulation is a coercive order." This brings us to our third model of enforcement policy—flexible regulatory enforcement.

Flexible Regulatory

Enforcement

The key to flexible regulatory enforcement is matching regulatory tools to regulatory problems. "Because of the diverse nature of the world regulatory policies must vary across a number of dimensions if they are to be effective," Lawrence Bacow observes. Because regulatory problems can vary over time and among geographic regions, industries, and firms, a good policy "must take into account the fact that different problems demand different solutions." 36 How does the flexible model address the dilemma of regulatory enforcement? In answering this question it is useful to consider the precise relationship of our cooperative and punitive models, by focusing not on how they differ, but on how they complement one another. In general, as we have seen, each model has its own selective focus: responsible corporate citizens versus amoral calculators, cooperation versus deterrence, the problem of excessive strictness versus the problem of undue leniency. In addition, each builds upon criticism of the other's weaknesses. Thus, a cooperative strategy is often a reaction to excessive strictness based on treating basically responsible firms as if they are essentially bad. And a pu-

195

Flexible Regulatory

Enforcement

nitive strategy is frequently a response to undue leniency from treating basically bad firms as if they are essentially good. Each model brings us full circle to the other. Reinterpreted in this light, according to proponents of flexible regulatory enforcement, the critical question is not which enforcement strategy regulators should employ—cooperative or punitive—but when. As John Scholz observes: "The 'bad' firm, like the hardened criminal, requires the harsh legalistic treatment we associate with deterrence . . . The 'good' firm, on the other hand, may be approached in a spirit of cooperation." 37 The Cooperative Compliance Program represents a prime example of flexible regulatory enforcement. By limiting program participation to large unionized construction companies with strong safety programs and exemplary safety records, the CCP focused on a particular aspect of CAL/OSHA's overall task (to oversimplify, good firms rather than bad ones) and tailored its regulatory strategy accordingly in two major ways: first, by delegating some major regulatory responsibilities to labor-management safety committees, as we saw in the previous chapter; and second, by pursuing a cooperative enforcement strategy. As a consequence, the role of the Designated Compliance Officer (DCO) differed from that of the CAL/OSHA inspector in fundamental ways. While the CAL/OSHA inspector's role was strongly influenced by two organizational constraints—the pressure to write citations and build a case—these constraints are eliminated in the DCO's role. In sharp contrast to the elaborate system of administrative controls the typical CAL/OSHA inspector operated under, the DCO had almost no direct supervision, no special training requirements, very few guidelines, and even fewer reporting requirements. 38 Instead of direct administrative controls, CAL/OSHA officials relied primarily on the professional judgment of the inspector. Hence, selective recruitment was very important. The DCOs were appointed by the Deputy Chief, who in most cases relied on the advice and recommendation of the District Manager in whose district the CCP project was located. If CAL/OSHA officials had chosen their most stringent inspectors as DCOs, with no construction experience and little sympathy for a cooperative approach, then no doubt the DCO's regulatory style would have been very different. But in fact all the DCOs had considerable con-

196

Flexible Regulatory

Enforcement

struction experience. And all the inspectors selected as DCOs were considered seasoned inspectors (four DCOs were near retirement) well suited to a cooperative enforcement effort because of their moderate regulatory styles; not too stringent, according to CAL/ OSHA officials, yet not too lenient. "Everything I have done," as one DCO puts it, "has been strictly based on my construction background and my general knowledge. (I've been with CAL/ OSHA for over 10 years.) So that's where I'm coming from." Says another DCO with well over twenty years' experience in the California safety program, "In the CCP we're free to roam." Stated in more general terms, the CCP debureaucratized and decentralized the CAL/OSHA inspector's role. The result was greater flexibility. For depending on the circumstances, the DCO could be a tough cop-like rule-enforcer, a flexible problem-solving consultant, or a combination of the two. Both facets of the DCO's role are examined below as they applied during the time the CCP was in effect. D C O AS E N F O R C E R

Although under CAL/OSHA the DCOs are freed from the highly centralized administrative system that strongly encourages inspectors to behave like unbending rule enforcers, it is essential to recognize that on occasion they still play the role of a tough regulatory cop. The DCO's role differs fundamentally from the CAL/OSHA inspector's in doing so, however, because his enforcement efforts are not driven by the production demands of CAL/OSHA headquarters—getting numbers and building a case—but by the nature of the tasks to be performed on the construction site. Thus, our analysis must begin with the DCO's tasks, which cannot be described without some knowledge of construction site authority relations and the central problem that poses for job site safety engineers—the subcontractor problem. The Subcontractor Problem On large-scale construction projects there is not just one employer. There can be dozens of employers. Some employers are large, others small; some are on the job site for many months, others a couple of days; some perform hazardous tasks, others do not; some

197

Flexible Regulatory

Enforcement

are very safety conscious, others are not. These are the subcontractors. The large-scale construction project, with dozens of different employers, reflects the great complexity of the building process itself and the numerous operations involved, each of which requires a high degree of specialized knowledge and skill. While the general contractor performs various managerial functions, many managerial responsibilities are divided among subcontractors. The general contractor normally carries out certain phases of the work with his own employees ("direct hires"), for example, while the remaining parts of the job (perhaps, for instance, sheet metal work, electrical work, steel erection, pipefitting, plumbing, masonry, concrete form construction, crane rigging) are "farmed out" to specialty contractors. These subcontractors provide their own labor, generally performed entirely by men of one craft, and are responsible for the proper carrying out of their specialized jobs. The management of the construction process, divided among numerous more or less independent employers, is thus decentralized. The seven CCP projects made extensive use of subcontractors, averaging 28 per construction site. Construction site authority relations. Authority relations between general contractor and subcontractor are deeply rooted in the building process itself. "The nature of the building process," two authorities on the construction industry write, "has fostered a strong craft consciousness among the workers in the various construction trades, a consciousness that is reflected in the organization of labor within the industry." 39 The leading example of this strong craft consciousness is the organization of construction workers by crafts (plumbers, electricians, pipefitters, and so forth) and not, say, by industry (for instance, autoworkers, steelworkers, chemical workers). A corollary to this strong craft consciousness is worth stressing. Intimately associated with craft institutions is a distinctive form of administrative authority—craft administration—in which the work process itself, the way it is performed (for instance, the particular movements to be performed in getting a task done) is dictated by the craft's own professional norms. Craft administration thus differs from bureaucratic administration: the work process is not controlled through detailed directives by some higher centralized authority; rather, it is decentralized to the work level and con-

198

Flexible Regulatory

Enforcement

trolled by craft norms acquired through professional training, primarily the apprenticeship system. Hence, the crafts' level of self-supervision is very high. 40 Note an implication of the foregoing: the high level of autonomy closely tied to craft administration creates a division of administrative authority on the construction site. Although the subcontractor's goals (the work product) are normally set by a higher authority, the general contractor, the method of administering work (the work process itself) generally remains within the subcontractor's domain of managerial authority. Contractual relations in the construction industry help formalize these customary relations. For example, most subcontractors are awarded a "fixed price" or "hard money" contract by the general contractor after a process of competitive bidding. "In a hard money contract a subcontractor is given the plans and specifications to do a certain job," a construction company official explains. "Let's say the sub bid the job for $350,000. If the job ends up costing the sub $380,000 then they're out of it. But if the sub comes in under $350,000 then the sub gets the gravy." Like an entrepreneur, the subcontractor assumes the risk for making a profit as well as the responsibility for organizing and operating the job. In consequence, the hard money contract specifies the goals or product of the subcontractor's work, and the prices, but does not specify the particular way in which the subcontractor is to administer the work. The subcontractor controls the work process. 41 As a general rule, these formal and informal industry norms have led the contractor to assume a "hands off" posture towards subcontractors. "With the hard money contracts the sub has to go out there and really perform," a construction company official explains: Usually, the general contractor leaves subs like that pretty much alone. The subcontractor doesn't want to be told how to do the job. The sub has the plan and has to build according to plan. So the general contractor leaves them alone so the sub can do it the best way, and the quickest way he can. And that's the way subcontractors usually like it—leave them alone and they'll do the job. (My emphasis.) In sum, the limited reach of the general contractor's authority reflects a fundamental characteristic of the building process inti-

199

Flexible Regulatory

Enforcement

mately associated with craft institutions and craft administration. On the large scale construction site, two more or less independent domains of administrative authority exist side by side—the general contractor's authority over work goals, the subcontractors' authority over work process. Both the hard money contract and general contractor's hands-off posture reflect and affirm that division. Shortcuts. For the job site safety engineer, the construction site's traditional authority structure raises a central problem— shortcuts by problem subcontractors. "Shortcuts," says a job site safety engineer, "is the worst word you can say to a safety man." The problem with shortcuts, another safety engineer explains, is that it encourages taking chances with safety. They can grind faster without a guard, so, to save time, they don't use the guard. They save 30 feet of walking by unhooking their safety belt and cutting across a piperack [instead of remaining secured to the safety cables the company provides for fall protection and taking the safe but longer way around]. They walk down an embankment instead of walking another 40 feet to where the stairway is. Maybe they pop the lid off of a vessel, and I'm not available right at that minute. What do they do? They say, "Well hell, let's take a chance and go in there" [rather than, say, waiting for the safety engineer to first test the air quality in the tank]. Taking shortcuts has made "the construction industry quite a gambling game," in the words of an AFL-CIO Building Trades' safety expert. "[T]he overlooking of safe practices is gotten by with, and perhaps only once in a thousand or two or three thousand times does an accident occur as a result of an unsafe practice or condition." Yet, despite the odds, taking chances or shortcuts still represents "the biggest cause of accidents in the construction industry." 4 2 While many construction workers take shortcuts, some take more than others, and subcontractors with hard money contracts generally take more than most. Because the subcontractors with hard money contracts "have to go out there and really perform," a company official explains, the pressure to take shortcuts can be especially intense. "The quickest way to get a job done," says a job site safety engineer, "is the way these subs with hard money contracts are gonna do it—so they take shortcuts." Of course, the gen-

200

Flexible Regulatory

Enforcement

eral contractor's employees may also be tempted to take shortcuts. But unlike the subcontractors, these "direct hires" are under the direct authority of the general contractor, and its safety program, which prohibits dangerous shortcuts. "We have more trouble with subcontractors than direct hires," a corporate safety engineer explains, "because if you're working for the company and we tell you to do something you pretty well do it. You have a lot more control over your own people because direct hires, hell, they can be direct fired. But when you're working for a subcontractor you're kind of divorced from the main family and you don't have to take orders in the same way the man who works directly for us does." The job site safety engineer's authority. Controlling subcontractors with hard money contracts represents a critical task for the job site safety engineer because they are the ones most likely to take dangerous shortcuts. Controlling these subcontractors can also pose a serious problem for the job site safety engineer, however, because he occupies an anomalous position within the traditional contractor/subcontractor authority structure. Although he is a member of the general contractor's staff, the safety engineer's role differs in a fundamental way from that of other staff members. That is to say, his efforts are directed, not at the subcontractor's work product, but at his work process—stopping subcontractors from taking potentially dangerous shortcuts. But from the subcontractors' perspective, accustomed to supervising their own work, the safety engineer's regulatory authority over them seems extraordinary, questionable, if not unwarranted, because he is seen as operating outside the construction site's traditional authority system. Thus, compared to his authority over workers on the company payroll ("direct hires"), the safety engineer's authority over subcontractors is weaker. "When I go out on the site it's kind of me against the world," a company safety engineer observes. "The people in the field look at me as, well, the jerk on the job because they resent it when I tell them to do something. There's an uneasy feeling. I guess some subs just have a hard time accepting my role out here. So you do run into hassles because of that. You get a lot of static. They just don't like to cooperate sometimes." The CCP has taken steps to address the problem.43 But just as some firms are disposed to obey the law and others not, and some have good safety programs and other not, so too there are some

201

Flexible Regulatory

Enforcement

"bad" subcontractors who continue to resist the safety engineer's directives. Sometimes called "hardnosed subs," they are at the heart of the subcontractor problem. Despite the CCP's efforts, the safety engineers' control over hardnosed subs remained weak because the traditional "hands-off" posture still thwarted their regulatory efforts. With a note of frustration in his voice, a safety engineer describes the steps he had to take to deal with a recalcitrant subcontractor: When we find a subcontractor's employee doing something wrong, we remind the individual of the problem. Then we go to the subcontractor and tell him, "Look, you have a rash of people not tying off. They're not wearing their eye protection." And if this continues, we get to them and write them a letter of non-compliance. If that doesn't work, then we sit down with them at a meeting: "Now you've got a choice. Either come into line, or be shut down." So it's a roundabout process where we verbally tell the sub, then we write a letter of non-compliance which goes to their management, which comes back to us, etc., etc. Why the frustration? Aside from shutting down a job, the safety engineer's control over the subcontractor seldom amounts to more than verbal and written "reminders" and "warnings." Even the threat of a job shut down is of limited use. "We can tell someone they're not in compliance," a safety engineer explains. "And if it's an imminent danger situation, then, of course, we can shut the job down. But with most violations, if we shut every subcontractor down out here that was not in compliance, we would not get the work done. So we're trying to get the work done, and get everyone in compliance." Unless there is an imminent danger, in other words, which is rare, the safety engineer's only recourse is verbal and written "sanctions." More often than not a verbal warning suffices, at least with "good" subcontractors. But then there is the recalcitrant subcontractor, the "hardnosed sub," and that is when the DCO enters the picture. The DCO's authority. Unlike the job site safety engineer, the DCO is not constrained by the traditional job site authority structure. More important, the DCO has more authority than the job site safety engineer. "The Company safety man doesn't really have the clout CAL/OSHA does," a DCO explains:

202

Flexible Regulatory

Enforcement

You just have to be around this business for a long time to see what I really mean. The building trades out there, by and large, really listen to what the CAL/OSHA inspectors say. I don't know if it's out of fear or respect, or whatever. But they pay more attention to what people from OSHA have to say. They really do. "A big difference between the DCO and myself is the credentials," a job site safety engineer explains: Think about the difference between me and the DCO this way. Say you ran a stop sign or red light. Say I pulled alongside you, a civilian, asked you to park, and said, "Look, you just ran a stop sign. Do you realize how dangerous that is?" Now compare that to a situation where a man in a uniform—with the credentials, badge, and everything else—pulls you over. And he says, "Look, if you do this again you could get in serious trouble." Think of the difference in these terms. The guy from OSHA is "The Man." That's the common term for him out here on the site. Me, I'm viewed like that to a certain degree. I'm the on-site sheriff. But I'm not "The Man" like the DCO is. The term "OSHA" just kind of jumps out there and bites people. One DCO, a former company safety engineer, compares the safety engineer and CAL/OSHA inspector based on his personal experience: Prior to coming to CAL/OSHA I was an inside safety man. I did that for 4 years. It's a very difficult position to hold. You don't really have the clout that CAL/OSHA has. I'd go around and recommend this and recommend that, and people used to tell me to go to hell. Where I worked we had 1200 men. And I was the head of the safety program. I made up all the requirements and everything else—the whole ball game. One of our employees fell. And he died. To prevent that type of thing in the future I went to management with a proposal. I wanted to put the men in double lanyards so that the man could always be hooked up as he changes lines. That's the whole damn secret. The management believed in safety. But when I proposed what we should do, so that nobody else would fall, they damned near laughed at me. That's the way it goes. Safety to a

203

Flexible Regulatory

Enforcement

certain degree, but not when it hampers the bottom line of the operation. About a year and a half ago this company had another fatality. I went up there. But now I'm up there as a CAL/OSHA compliance officer. Let me tell you the difference. When you're there, you are The Law. So I went out there and told the guy, "You've got two choices. You're going to put these men in double lanyards, immediately, or I'm going to shut the goddamn job down. Double lanyards or nothing." They did it. To understand how the DCO's authority differs from that of the job site safety engineer, consider once again Mommsen's definition of authority: "more than advice and less than a command, an advice which one may not safely ignore." 4 4 So conceived, it is less safe for the subcontractors to ignore the DCO's directives, not so much because the DCO is unimpeded by traditional contractorsubcontractor authority relations, but more importantly, because the DCO is viewed as "THE LAW." As a consequence, the DCO can brandish his authority in ways the safety engineer cannot. Most important, by using the threat of citations to deter problem subcontractors, the DCO can buttress the safety engineer's authority on the job site. "The DCO needs the flexibility to issue citations to deal with weaknesses in the company safety program," a DCO explains, because "the company safety man just doesn't have the juice he needs to handle certain subs." As a safety engineer puts it, "We use the DCO to put the fear of God in subcontractors." Another DCO observes: The subcontractors are a little different from the direct hires. The direct hires can't say no to their boss. But subcontractors, working hard money contracts, do pretty much what they please to get the job done. Sometimes the Company safety guy can have trouble with those kind of people. When they had trouble, that's when I would step in. I would just put it to the subcontractor, "That's the way it is, and that's the way it's going to be. And if you don't do what they want you to do, then you leave me no alternative but to issue a citation." I'm the enforcer. That's what it really amounts to. "The safety m a n , " says a third DCO, "likes to use me as a heavy." Yet, DCOs did not issue a single citation. The threat of a citation, they say, sometimes coupled with a "tongue lashing" by the

204

Flexible Regulatory

Enforcement

DCO, is almost always enough to gain the "cooperation" of even the most recalcitrant subcontractor. Indeed, according to job site safety engineers, the DCO's mere presence on the construction site, without any actual threat of a citation, generally deters most subcontractors and provides the safety engineer with the support he needs. Most telling, on the advice of job site safety engineers, some DCOs time their visits to the construction site to coincide with the presence of certain traditionally troublesome subcontractors, thereby maximizing the deterrent value of their legal authority. "The frequency with which I visited the site depended on the phase of work—how hazardous it is," a DCO explains: When I first went out there we had a lot of structural steelworkers out there, all working about 30 feet above the ground. The ironworkers are one of the most negative on being tied off with safety belts and life lines. They were giving the Company safety man a rough time. So in the beginning I went there about once a week because I knew the safety man could use some help. I would talk to the various crafts, especially the ironworkers. I made myself very visible. I did this for at least the first three months. Then things got less hazardous, mainly because the ironworkers finished up their work. So then I came out once every two weeks, then monthly. By the end of the project I was coming out about every two months. It all depended on the hazardousness of the project and which subs were out there. In this way, the DCO's intervention as an enforcer generally decreases over time. "I find myself stepping in less and less because the subs are getting the message," another DCO explains. "After hammering on them for this and that they realize that hassling the safety man isn't going to work. They have to comply with CAL/OSHA standards." When this happens the DCO's "tough cop" enforcement posture has served its most important purpose— fortifying the safety engineer's authority over problem subcontractors In sum, the DCO sometimes resembles a tough cop-like CAL/ OSHA inspector. The motivation differs significantly from that of the CAL/OSHA inspector, however, because the latter's approach is decisively influenced by administrative pressures from above, particularly the production demands of CAL/OSHA headquarters

205

Flexible Regulatory

Enforcement

and FED/OSHA monitors to maximize the number of citations sustainable on appeal. By contrast, the CCP has insulated the DCO from these administrative pressures by debureaucratizing and decentralizing the role. That flexibility, in turn, has led the DCO to use his cop-like authority in a more discriminating manner compared to the CAL/OSHA inspector. Most important, that flexibility has enabled the DCO to readily adapt to one of the construction site's central regulatory problems—recalcitrant subcontractors—in ways the CAL/OSHA inspector usually cannot. 45 D C O AS C O N S U L T A N T

On the job site, from the perspective of those most directly involved in the CCP's operation, the DCO's role as "enforcer," though important, is nonetheless very much a secondary one. "Consultant," "adviser," "safety engineer"—these are the terms most often associated with the DCO. More to the point, these are the ways the DCO truly differs from the conventional CAL/OSHA inspector. "It's an entirely different world," says a DCO: There's no resemblance at all to my function as a compliance officer at other job sites. There's no comparison at all. Because when I go up there as a DCO I'm not inspecting. I'm not writing citations, getting exposure, or doing any of the paperwork that goes with that. I really am acting more as a consultant. I'm not an adversary. Any place else I'm an adversary. "You don't feel the pressure to write citations," says another DCO. "You don't have any of that. Your whole interest is one of safety engineering." Employers describe the difference in regulatory styles in similar terms. "In the Cooperative Compliance Program," says one construction company superintendent, "you have the same CAL/ OSHA compliance officer coming to the site. But he comes with a different attitude. He's there to help you help yourself to win. He's not there to write you up or to fill a quota." "Under the CCP," as a job site safety engineer puts it, "the CAL/OSHA inspector is changed from an enforcer-policeman type to an adviser. The DCO is working more with the management and labor team. He doesn't come in here like an inspector and say, 'You guys have screwed

206

Flexible Regulatory

Enforcement

up here, here, here, and here. And its going to cost you.' That does nothing but create friction between our company and the inspector . . . Our DCO is very different. He's an adviser." As consultants, the DCOs support and assist the safety programs in three major ways: as educators, as regulatory guides, and as technical advisers. Each is examined in turn below. DCO as Educator Hazardous recognition training. As the preceding section has shown, the labor-management safety committee is the centerpiece of the CCP. For it is the committee that assumes many of the responsibilities normally handled by OSHA inspectors—handling complaints, conducting inspections, abating hazards, and so forth. The selfregulation program's effectiveness therefore depends in large part on the safety committee's effectiveness, particularly their ability to recognize hazards. That hazard recognition a critical task for the safety committee is easy to see, according to a job site safety engineer, because "it's a very simple mathematical probability: the more people on the job that can recognize hazards, the better the chance that we can recognize and get rid of them before someone gets hurt." To a great extent, recognizing hazards is a matter of "practical sense," something labor representatives possess a good deal of as seasoned journeymen. 46 But practical sense is not always enough, DCOs say, particularly when labor representatives are dealing with the less familiar hazards associated with other crafts. "The craftsmen know their own jobs real well," a DCO explains. "A good sheet metal man is tops when it comes to working air ducts. And he knows what it takes to do the job safely. But boy, he certainly doesn't know much when it comes to steel erection, or cutting boards, and the safety problems that go with it." For DCOs, training safety committee members to identify and abate hazards has been their most time-consuming task, though how much time is actually required varies among sites, since some company safety training programs are better than others. While some companies provide many hours of special training for their safety committee members, others offer little or none. The DCO's training role has thus varied accordingly.47

207

Flexible

Regulatory

Enforcement

What kind of training do the DCOs provide? Coming from a "ruleish" agency like CAL/OSHA, one might expect them to stress the learning of safety regulations above all. As a matter of practice, though, CAL/OSHA rules generally occupy a less central place in the program. "I assumed that these guys did not know anything," says a DCO, describing the place of CAL/OSHA rules in his training: We started at first base. Of course, they are all experienced journeymen in their trades. So they were all familiar, one way or another, with safety. But I had to train them in what CAL/ OSHA requires. The first thing we did was discuss guard rail requirements—where the guard rail criteria came from; the guard rail requirement starts at 7 è feet; anything above 15 feet you have to be tied off, and so on. But that's just words. It means nothing to them. So what I did, I mentioned the requirements, initially. After that, I then said, "Let's go out and take a look at what we have here." Thè committee and I walked around the site and found an employee that could have been a citable condition. Right there, I would discuss what the exposure was and the type of injuries you would normally expect from it. Then I would ask the committee, "Why don't you give me an idea on how to correct the situation?" Then, based on my experience, I told them how they might improve on those suggestions. Although CAL/OSHA regulations are discussed, the DCO adds, they are not his primary emphasis because too much emphasis on the rules is "meaningless" if one is seeking to induce rather than enforce compliance by way of a cooperative problem-solving dialogue.48 A labor representative on another job site offers a case in point. "I learned the reasoning behind certain safety rules," as he puts it, "and passed that information on to the crafts." The DCO was very good. He taught us a great deal about CAL/ OSHA specifications. One example is the hooking pf the very last connection to the counterweight on a crane; it's called a headache ball. CAL/OSHA has a procedure of taking the tail end of the line, making a bow on it, and not connecting it to the actual load line. This is an unusual procedure because most construction people have seen it done the other way—the loose end is connected to the load bearing part of the line by a clip.

208

Flexible Regulatory

Enforcement

The DCO was quite knowledgeable as to why these things were required, and he passed that on to us on the committee. He explained to us how the clip actually reduces the strength of the load bearing lines because they get distorted. This type of information, when given to the craftsman, makes sense, but when you first see a rule like that, the men say, "Those assholes! They've got their head up their ass. They don't know what they're doing. That's not the way you do it." And people were reluctant to comply with it because it departed from old patterns. But when you pass on the information as to why CAL/OSHA requires something, then it makes more sense. And I think the committee did that quite effectively. The DCO's knowledge as to why things were required was passed on to the committee, and we spread it to the craftspeople in general. Another labor representative at another job site offers a similar example; in this case the workers, including the labor representatives, remained skeptical as to the rule's reasonableness. Yet even so, they complied with the rule because, as the labor representative puts it, "there was a case to be made for it:" The foreman of the razing unit wanted to do something with the man-basket. He wanted to hook the basket to a crane, send a man up to take a set of chokers off, and return him to ground level. CAL/OSHA requires that a man riding the basket has to be tied off above the hook [which connects the man-basket to the crane]. I have very strong feelings about that. I think that type of regulation is unrealistic. The chances of the hook failing are probably 100 million to one. If the man-basket comes off for some reason, I wouldn't want to stay up there connected to the hook because, as the basket falls, its got to get past your body, and when it does, some pieces of you are going to go with it. It just doesn't make good sense. But we complied with that procedure because the information was presented in a reasonable manner. The DCO's position was that if the hook fails, the man stands a better chance of survival by staying with the crane than going down with the basket. Even though I don't support that position, we followed that procedure. We followed it not just because it was the rule, but because we had some understanding of the rule—there was a case to be made for it. (My emphasis.)

209

Flexible

Regulatory

Enforcement

Other DCOs follow a similar approach, using the committee inspection as a vehicle for training its members. The educational context bears emphasis. Out on the construction site, dealing with real problems, the DCO's training takes on a problem-centered bias. Though CAL/OSHA regulations may provide guidance in the process, they do not overshadow a more fundamental purpose—identifying and abating hazards. While the rules are on tap, in other words, they are not on top. "I make my comments from a safety engineer's viewpoint," as one DCO puts it. "I comment on things that aren't necessarily violations of a particular safety order, but are hazards." All this, it should be emphasized, is in sharp contrast to the CAL/OSHA inspector's preoccupation with getting numbers and building a case. Consciousness raising. The "Functions of the Job Site Committee" are outlined in the CCP Agreements. The description is brief, broad and vague—meet weekly, keep minutes, and inspect the site at least once a month in order to "review" and "assist" the CCP's implementation. What exactly the committee should be doing is not really specified. Nor is the answer obvious, since management, labor, and CAL/OSHA have never cooperated in such an effort before. This ambiguity has led the DCOs to play a major part in defining the committee's purpose in the program, a role which can perhaps best be described as one of consciousness-raising. "I'm not a low profile type individual who just sits back and watches," says a DCO. "I try to indoctrinate the committee—things to be aware of, things to think about when they're doing their inspections. Basically, I'm trying to strengthen them." In defining their role at the job site, some committees have had more problems than others. Most telling is the experience of one committee, which even had difficulty taking its first step. "The biggest problem I faced out there was organizing the safety committee," a DCO recalls: I went to the site one day and said, "Hey, I'm your DCO. I'd like to establish contact with your safety committee. Where would they be?" And they said, "What safety committee?" They had not done anything until I got there. They didn't know how to take the lead, and who should take the lead. I was very disappointed. They should have started as soon as the agree-

210

Flexible

Regulatory

Enforcement

ment was signed. So I told these guys that they had really disappointed me, "I thought you guys would already have this committee formed and doing inspections. But you haven't. So let's start right now." Getting started was only the first step, the DCO goes on to say, because his "positive leadership" was also required to help instill the proper "attitude" within the committee. The attitude I express is the one that carries over to the safety committee. I told the committee what I expected. I told them that we had to have a committee that found the unsafe conditions, and resolved them, so that the job would be safe. The attitude is important . . . [In this way] they found out that the safety committee was really a workable committee. They learned about themselves that as a committee they can respond to problems, they can develop solutions to problems that exist out there, and that they can make a difference. More crucially, the DCO thus helped the fledgling committee assume responsibility for a task—solving occupational safety problems at the construction site. Other DCOs describe a similar consciousness raising role. In particular, they stress how important it is to help the newly created safety committees develop "a sense of responsibility," especially among the labor representatives, who may be reluctant to assume a leading role alongside their management counterparts on the safety committee. "At the very beginning the labor reps were pretty much passive," a DCO observes: As time progressed, they became more active. The last two walkarounds we've had, they've been very active. In fact, the last inspection we had, the Company safety engineer shifted the leadership to the labor rep. Prior to that, the other management rep had done the same thing. So its been a process of onthe-job training—going from my leadership, to the company safety engineer's, to the other management rep, to the labor reps' leadership. As a consequence, due in no small part to the DCO's efforts, all the members eventually became full-fledged participants on the safety committee.

211

Flexible Regulatory

Enforcement

DCO as Regulatory Guide "The success of a rule in effecting its purpose," Colin Diver writes, depends in part on its being "'accessible' to its intended audience—that is, applicable to concrete situations without excessive difficulty or effort." 49 In this area, much of the new social regulation has received low marks. It has created a bewildering bureaucratic obstacle course, critics charge, with too many cumbersome rules, regulations, and complex procedures. CAL/OSHA safety regulations, which occupy almost three feet of shelf space, receive similar criticisms. "The OSHA safety orders are so damned lengthy," says one construction company superintendent, "that it takes a Philadelphia lawyer to find out where you're at, and what you're really supposed to do." CAL/OSHA regulations can be confusing, according to regulators and regulated alike, because many of them are poorly written and poorly organized. Indeed, even CAL/OSHA inspectors sometimes find the regulations confusing. So it is not surprising that most company safety engineers in the CCP have on occasion found themselves lost in the regulatory thicket. "There were a lot of times when I just didn't understand the safety orders," says one company safety engineer. "If you go through these California safety orders you can get confused real quick. You know, I could usually understand the orders once I found them. But in a lot of cases I had a hard time just finding the particular subject matter I was looking for. I've been dealing with 6 books, probably about 2000 pages of orders, for the last 18 months. And there were times I just couldn't find what I needed." From time to time all the safety engineers have called upon the DCOs for guidance. It is sometimes difficult to comply with CAL/ OSHA's requirements, they say, simply because the applicable standard may be buried somewhere among thousands of pages or because the manual offers seemingly conflicting directives. "Construction safety orders and general industry safety orders can be very cumbersome to go through when you have a problem," a safety engineer observes: At times I've called our DCO and said, "Hey, help me out here. I've got something outside the scope of what I normally go

212

Flexible Regulatory

Enforcement

into." Examples of that would be the petroleum safety orders, or the boiler safety orders. A lot of times he can help me out on the orders I don't use on a daily basis. For example, the DCO has put me in touch with the boiler inspectors on some questions we had about pressure testing. The DCO said, "All right, here's the phone number of this guy. I'll call first to give you an introduction. Give him a call. He'll be glad to help you out as far as what you need to know." Responsiveness. "Centralized, detailed, and programmed regulation can be a powerful social instrument," Bardach and Kagan write, "but it is not a subtle one." By requiring all enterprises to take a prescribed set of protective measures, it assumes a certain uniformity in problems to be controlled. The world to be regulated, however, is diverse, changeable, and ambiguous . . . [W]hen enforcement officials are denied discretion to adjust the rules or to overlook deviations . . . [t]he results are unreasonableness (the imposition of uniform regulatory requirements in situations where they do not make sense) and unresponsiveness (the failure to consider arguments by regulated enterprises that the exceptions should be made). 50 In this light, consider the DCO. As a guide to CAL/OSHA's regulatory regime, according to safety engineers, the DCO differs from the CAL/OSHA inspector in at least one crucial respect. The DCO is a more responsive guide, they say, not only because he is much more familiar with the operations of the construction site and the particular circumstances within which CAL/OSHA rules may be applied, but also because the DCO understands the employer's concerns and motivations in a way that the conventional CAL/OSHA inspector cannot. In the words of a job site safety engineer, the typical CAL/OSHA inspector is a "stranger," the DCO an "insider": The DCO gives me a specific contact source in CAL/OSHA. That's helped me quite often. Rather than just phone up CAL/ OSHA and say, "Hey, this is a problem I've got," the DCO knows this job very well. He's been out here a lot. And I can tell the DCO, "This is the problem I've got, and this is the area we're working in." And he knows what I'm talking about. And it just makes it so much easier to work that way. (My emphasis.)

213

Flexible Regulatory

Enforcement

That kind of familiarity, says another safety engineer, facilitates communication. "Without the DCO we'd be dealing with somebody in OSHA that's in the blind. They may not know what we're talking about, and misconstrue what we're trying to say." Better communication, in turn, helps make the DCO's advice more relevant to the safety engineer's problem-solving needs, particularly on complying with CAL/OSHA regulations. "If we have a problem we can call the DCO, and he comes running up, and we'll go have a look at it," says a third job site safety engineer. "It's just better to have that man in-house; someone you can contact and say, 'Hey, here's our problem'." Perhaps most important, unlike the conventional CAL/OSHA inspector, the DCO can develop a sense of the "overall picture" at the site, still another safety engineer explains: When the inspector comes out to regulate they're usually out on an inspection that is a result of a complaint. They don't see the overall picture of how the program is actually running on a day to day basis. All they see is one glitch. And I think that's damn important. If you're working a thousand or two thousand people on the job, you're going to have glitches. And I iron them out on a daily basis. All it takes for an OSHA inspection is to have one complaint. And it'll bring him out—with the idea of specifically looking at this and not at the general picture. By way of contrast, the DCO's on-going dealings with the safety engineer encourages a different kind of relationship, as another safety engineer describes: I do believe we have established a rapport with the DCO. For instance, if the DCO points something out to me that's not right, we'll have it corrected in ten minutes. It's not going to lay there til tomorrow or the next day. Or we're not going to write up a report and send it in and get it corrected next month. We'll correct it now. That's the main thing. I think all OSHA compliance officers are after that—"If I tell you you've got a problem, how long is it going to take you to fix it?" So in one way there's not that much difference between the OSHA compliance officer and the DCO. If we had the same compliance officer coming out here doing a normal inspection,

214

Flexible Regulatory

Enforcement

and he came out here once a month, every month, continuously, he would eventually get into line, see what we're doing, and know how we're doing it. And the first thing he would know is how we conduct business: "If I tell you you've got a problem, are you going to fix it?" If he comes out today and finds a serious violation, and he comes out tomorrow and its been corrected, then he get's a pretty good taste in his mouth for the way you conduct business. He gets the attitude that you're taking care of business. There is good reason to believe, however, that the conventional OSHA inspector, even if he came to the site month after month, would not come to resemble the DCO because the pressures of legalistic enforcement—getting numbers and building a case— would strongly encourage an adversary atmosphere between regulators and regulated. If anything, trust and mutual cooperation are not likely to flourish under these circumstances.

DCO as Technical Adviser At times, the DCO has been a technical consultant, though the amount of technical assistance provided varies from site to site and the level of in-house expertise. All the CCP sites have a "safety man," for example, but only some are full-time professional safety engineers, and even their level of technical sophistication varies. One company employs a full-time professional safety engineer, for example, but he is responsible for several construction projects and visits the CCP site about once a week. And while there is an onsite "safety man," he is not a "construction safety specialist," as the DCO puts it. Accordingly, the construction project supervisors at this site relied more heavily on the DCO's expertise compared to other CCP sites with on-site safety professionals. "They weren't bashful about calling me," says the DCO: They'd say, "Hey, come on out. We've got a problem and don't know how to handle it." And so I'd go. We didn't plan this for every two weeks or month. It just happened. Sometimes I was out there four or five times a month. Sometimes I would just stop by there for just a few minutes because they asked me to take a look at a particular problem that was just developing. So I'd go.

215

Flexible Regulatory

Enforcement

So if they had a problem they could always call me. They would say, "Gee, I don't know what we're supposed to do. We've got to cantilever out. Well, how and the hell do we do that?" So I would go out and help them engineer something or I'd tell them that this was the direction to go, and they'd get an engineer to do it. Then I'd come out and say, "Yeah, it looks good to me. Doesn't it look good to you?" "Yeah, let's test it," they'd say. So we'd put a load on it to see what it did. That's the way we did things. The DCO is quick to add, though, that the vast majority of the problems arising on the site are handled without his help: "For every problem I helped them on there may be 100 problems they handle that I don't even know about." Other DCOs have been a source of technical information as well. In some cases DCOs furnished laboratory analyses which the in-house safety program was not readily equipped to handle. "They asked me whether the waterproofing spray that was being used at the site was or was not hazardous to their health," one DCO recalls. " S o I took a sample and had it analyzed at our lab." 5 1 Even at the job sites with the most advanced safety programs, moreover, safety engineers still seek the DCO's advice at times, if only to get a second professional opinion from a fellow safety engineer. "The DCO has been a good source of advice at times," says a very well trained job site safety engineer. "He doesn't come in and tell me how to correct a problem. But he may suggest different methods to correct a problem. But he doesn't come to me and say, 'You will have to do this and this'. He comes up with some real good suggestions. They're economical methods of correcting the problem. They're realistic. It's nothing that you have to sit back and say, 'Holy Smokes! What are you trying to do to us?' No, he comes up with some good, economical, and realistic methods." 5 2 Likewise, some highly trained safety engineers said they found the DCO helpful at times because he provided a "fresh pair of eyes," as one safety engineer puts it. The DCO was a good adviser. He would come out on our monthly walkarounds, just like an OSHA inspector. We'd go out and look the site over, watch the work habits of the people, and look for any potentially hazardous situations out in the field. This is strictly advisory. If he sees something out there that we've missed, he'll mention it. And we correct it.

216

Flexible Regulatory

Enforcement

You know, when you're on a job everyday and you see the same thing, day in and day out, you do slip and miss a few things. The DCO comes in like a new kid on the block. He comes out to see the job once a month and he can pick up quite a few things. It's like a fresh pair of eyes. And it does help when you have a different set of eyes looking. I know myself—especially me because I do safety—you do miss things. In these ways and others, the DCO thus resembles a private management consultant, particularly when he provides technical assistance of various kinds in order to enhance the problem-solving capabilities of the job site safety program. Nor has the DCO's advice always been limited to technical problems. On at least one occasion, for example, a DCO provided company officials with valuable information of a rather different sort in order to deal more effectively with problem subcontractors. "I found out from the company that submitted the application [to participate in the CCP], who the subcontractors were going to be," the DCO recalls: Then I made a history check of all the people that were going to work on the job—every sub. Then I made a list of all the violations that had been committed for the past three years (that's as far back as we go). For that period of time I looked for how many violations there were, and how many were repeats, willful, and serious. I made a complete list. For that list I made a determination of whether these people were sincere or not. The general contractor was a top-notch operation. They had a helluva good record. But going through the subcontractors, I found some that I thought that the general contractor ought to know about. So I brought it to the attention of some of the higher-ups of the company. I told them, "Hey, you've got a sub out there that appears to be a bad act. He's got 30 odd violations this year, 17 the year before, and 44 the year before that." [And most were not of the trivial or "chickenshit" variety, according to the DCO.] This way the general contractor was aware of who to concentrate his efforts on. And that's what they did. At the site, they birddogged the hell out of those people. After being "birddogged" for a time, the DCO continues, the problem subcontractors took notice. They soon realized that, by golly, maybe they ought to tie their stuff down so it won't blow off. And maybe they ought to make

217

Flexible

Regulatory

Enforcement

sure these guardrails are put back after they take them down. And maybe they should make sure that they all have their hard hats on. One problem subcontractor even hired a foreman with a safety background because of the increased scrutiny. There was one subcontractor in particular that didn't like this at all. They thought they were picked on. In the long run they ended up hiring a foreman, full-time and with a safety background, for the crew. They did this just to watch their own crew and make sure they didn't get any more criticism. All this information, the DCO emphasized, is a matter of public record. The company could have gotten it if they had known about it. But they didn't. And I got it for them and said, "Hey, in order to make this thing go, without injury, we're going to have to spend some time helping these people change their mind." And that's just what we did. We have been discussing the DCO's consultative role and how it supports and assists the job site safety program in at least three important ways. First, and probably most important, the DCOs are educators, as when they help train safety committees in the critical task of hazard recognition, and also when, through consciousness raising, they help the committees develop an overall sense of purpose—what they should do and what they should be. Second, as regulatory guides, the DCOs have assisted all the job site safety engineers at one time or another in finding their way through the sometimes bewildering maze of OSHA regulations, and because of their familiarity with the job site, have often done so in a way that has been particularly responsive to the safety program's distinctive problems. Finally, as technical advisers, the DCOs have supported the safety engineers' efforts on numerous occasions in the search for solutions to job site safety problems that are both effective and efficient. In these three respects, it is important to stress, the DCO's role differs fundamentally from that of the conventional CAL/OSHA inspector, whose legalistic citation-producing task generally encourages an adversarial relationship, one very much at

218

Flexible Regulatory

Enforcement

odds with the DCO's overall cooperative approach to regulatory problem-solving.

Summary In devising an enforcement strategy, regulatory policymakers confront a persistent dilemma raised by the conflicting demands of an effective regulatory program—that is, winning cooperation and coercing compliance. As the preceding discussion of California's occupational safety program has shown, the risk of cooperative enforcement degenerating into lax enforcement is illustrated by the DIS's administrative experience, while on the other hand, CAL/ OSHA's more recent administrative experience underscores the risks of legalistic enforcement destroying agency-industry cooperation. It is important to keep this historical backdrop in mind when thinking about the DCO's role. At the very least, we now see that part of the reason for the CCP's success can be found in the DCO's enforcement style, which differed in significant respects from that of his DIS and CAL/OSHA counterparts, and which enabled the DCO to support and assist job site safety programs in ways they could not. Perhaps of most importance, however, an understanding of California's administrative experience with cooperative and punitive enforcement is essential to appreciating the DCO's broader policy significance. After considerable discussion of the matter, now there is evidence that the flexible model of enforcement is in fact a promising regulatory alternative to the cooperative and punitive models.

NOTES 1. See, for example, E.Bardach and R. S. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982), 9 3 - 1 1 9 ; John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (Albany: State University of New York Press, 1985), 104-09; Steven Kelman, Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Regulations (Cambridge, Mass.: MIT Press, 1981), 2 0 5 - 1 4 . 2. Lawrence S. Bacow, Bargaining for job Safety and Health (Cambridge, Mass.: MIT Press, 1980); Bardach and Kagan, Going by the Book, 123-51; Paul Danaceau, "Developing Successful Enforcement Programs," in Bardach and Kagan, eds., Social Regulation: Strategies for Reform (San

219

Flexible Regulatory

Enforcement

Francisco: Institute for Contemporary Studies, 1982); Braithwaite, To Punish or Persuade, 119-48; Paul Danaceau, Making Inspection Work: Three Case Studies (Washington, D.C.: U.S. Regulatory Council); John Scholz, "Cooperation, Deterrence, and the Ecology of Regulatory Enforcement," Law and Society Review, 18 (1984), 179-224. 3. See for example, W.G. Carson, "White Collar Crime and the Enforcement of Factory Legislation," British Journal of Criminology, 10 (1970), 3 8 3 - 9 8 ; K. Hawkins, Environment and Enforcement (New York: Oxford University Press, 1984); N. Shover, et al., "Regional Variation in Regulatory Enforcement: The Surface Mining Control and Reclamation Act of 1977," in K. Hawkins and J. Thomas, eds., Enforcing Regulation (Boston: Kluwer Nijhoff, 1984), 1 2 1 - 4 6 . 4. Philip Selznick, "Focusing Organization Research On Regulation" in Roger Noll, ed., Regulatory Policy and the Social Sciences (Berkeley: University of California Press, 1986), 363. Also see, for example, Stephen Breyer, Regulation and Its Reform (Cambridge, Mass.: Harvard University Press, 1982), 2 7 1 - 7 2 ; Hawkins, Environment and Enforcement, 8 - 1 2 ; Keith Hawkins and John Thomas, "The Enforcement Process in Regulatory Bureaucracies," in Hawkins and Thomas, eds., Enforcing Regulation, 7 - 1 0 ; Robert Kagan, Regulatory Justice (New York: Russell Sage Foundation, 1978), 10. 5. J.Q. Wilson, "The Politics of Regulation" in J.Q. Wilson, ed., The Politics of Regulation (New York: Basic Books, 1980), 359; also see, for example, G.J. Stigler, "The Optimum Enforcement of Laws," Journal of Political Economy and Management Science, 78 (1970), 5 2 6 - 3 6 . 6. See, for example, Braithwaite, To Punish or Persuade; R. Kagan and J. Scholz, "The 'Criminology of the Corporation' and Regulatory Enforcement Strategies" in Hawkins and Thomas, eds., Enforcing Regulation. 7. See, for example, Bardach and Kagan, Going by the Book; Braithwaite, To Punish or Persuade; Kagan and Scholz, "The 'Criminology of the Corporation'"; M.H. Levin, "Crimes Against Employees: Substantial Criminal Sanctions Under the Occupational Safety and Health Act," American Criminal Law Review, 14 (1977) 7 1 7 - 4 5 ; P.A. Sabatier, "Regulatory Policymaking: Toward a Framework of Analysis," Natural Resources Journal, 17 (1977), 4 1 5 - 6 0 ; John Scholz, "Cooperation, Deterrence, and the Ecology of Regulatory Enforcement;" J.H. Skolnick, "Coercion to Virtue: Enforcement of Morals," Southern California Law Review, 41 (1968), 588-641. 8. See, for example, Bardach and Kagan, Going by the Book, 1 4 3 - 5 0 ; Braithwaite, To Punish or Persuade, 7 5 - 1 1 8 . 9. See, for example, Bardach and Kagan, Going by the Book, 1 3 1 - 3 4 ; Hawkins, Environment and Enforcement; M.J. Roberts and J.S. Bluhm, The Choices of Power: Utilities Face the Environmental Challenge (Cambridge, Mass.: Harvard University Press, 1981); H.R. Rodgers, "Law as an Instrument of Public Policy," American Journal of Political Science, 17 (1973), 638-47. 10. Quoted by Bardach and Kagan, Going by the Book, 133. 11. State of California, Industrial Accident Commission, Report of the Industrial Accident Commission of the State of California, 1914, 35. 12. State of California, Office of the Auditor General, "California Oc-

220

Flexible Regulatory

Enforcement

cupational Safety And Health Act—A Program Review/' Report P-855 (February 20, 1979), 6. 13. State of California, Select Committee on Industrial Safety, "Report" (January 25, 1972). 14. Phillipe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Harper Colophon Books, 1978), 16. 15. Nonet and Selznick, Law and Society in Transition, 76. 16. The phrase "amoral calculators" comes from Kagan and Scholz, "The 'Criminology of the Corporation'." This view of corporate behavior has been particularly influential in the analysis of regulatory compliance. See, for example, Colin S. Diver, "A Theory of Regulatory Enforcement," Public Policy, 28 (1980), 2 5 7 - 9 9 ; Paul B. Downing and James N. Kimball, "Enforcing Pollution Control Laws in the U . S . , " Policy Studies Journal, 11 (1982), 5 5 - 6 5 ; Paul B. Downing and Kenneth Hanf, eds., International Comparisons of Pollution Enforcement, (Boston: Kluwer Nijhoff, 1983); Sam Peltzman, "The Effects of Automobile Safety Regulation," Journal of Political Economy, 83 (1975), 677-725; Robert S. Smith, The Occupational Safety and Health Act: Its Goals and its Achievements (Washington D.C.: American Enterprise Institute, 1976); W. Kip Viscusi, "The Impact of Occupational Safety and Health Regulation," Bell Journal of Economics, 10 (1979), 1 1 7 - 4 0 ; W. Kip Viscusi, and Richard J. Zeckhauser, "Optimal Standards with Incomplete Enforcement," Public Policy, 27 (1979), 4 3 7 - 5 6 . 17. O.W. Holmes, "The Path of the Law," Harvard Law Review, 10 (1897), 4 5 7 - 7 8 : 461. 18. See, for example, Thomas Schelling "Command and Control," in J. McKie, ed., Social Responsibility and the Business Predicament (Washington D.C.: Brookings Institute, 1973); Bardach and Kagan, Going by the Book, 93-99. 19. Chester Bowles, Promises To Keep (New York: Harper and Row, 1971), 25. 20. Also see, for example, Norman K. Danzin, "Notes on the Criminogenic Hypothesis: A Case Study of the American Liquor Industry," American Sociological Review, 42 (1977), 9 0 5 - 2 0 ; Diver, "A Theory Of Regulatory Enforcement," 297; Kagan and Scholz, "The 'Criminology of the Corporation'," 76. 21. U.S. Department of Labor, Occupational Safety And Health Administration: Field Operations Manual, Section XVI-10. 22. Ibid. Section XVI-10. 23. Ibid. Section XVI-7. 24. The background of CAL/OSHA inspectors helps explain why. With most of the inspectors coming from the DIS, their attitudes and ways of thinking continued to reflect the old agency's overall commitment to consultation over stringent enforcement. "The guys were disillusioned," recalls a CAL/OSHA inspector formerly with the DIS. "Whereas they used to be safety engineers now they felt they were just cops . . . What most of the guys liked to do is try to tell the employer how to take care of the problem and improve the situation. . But we weren't supposed to do that, just write tickets." 25. State of California, Department of Industrial Relations, "Response To U.S. Department of Labor's Six-Month 18(e) Evaluation Report on the

221

Flexible Regulatory

Enforcement

Occupational Safety And Health Program of the State Of California" (hereafter cited as CAL/OSHA Response). 26. CAL/OSHA Response (December 1976-June 1977), 1, 5. 27. See, for example, James March and Herbert Simon, Organizations (New York: John Wiley and Sons, 1958); Richard Cyert and James March, A Behavioral Theory of the Firm (Englewood Cliffs, N.J.: Prentice Hall, 1963). 28. See, for example, Colin Diver, "A Theory of Regulatory Enforcement." 29. See, for example, J.Q. Wilson, "The Politics of Regulation," 3 7 6 - 7 7 . 30. CAL/OSHA, "Summary of Compliance Activity Relating To California Occupational Safety And Health Plan" (January 1976), 6; (October 1983), 10. 31. One evaluation report, for instance, rebukes CAL/OSHA for the "high percentage of violations overturned (42%) and penalties vacated (36%)," because of "inadequate documentation." United States Department of Labor, Occupational Safety and Health Administration (Region IX—San Francisco), "Semi-Annual Evaluation Report of the Occupational Safety and Health Program of the State of California (July 1974-December 1974), 4 1 - 2 . 32. CAL/OSHA, Policies and Procedures Manual, Section C-23. 33. Nonet and Selznick, Law and Society in Transition, 6 4 - 6 5 . 34. Beryl E. Pettus, " O S H A Inspection Costs, Compliance Costs, and Other Outcomes," Policy Studies Review, 1 (1982), 5 6 9 - 6 1 4 . 35. Wilson, "The Politics of Regulation," in J. McKie, ed., Social Responsibility and the Business Predicament, 162. 36. Bacow, Bargaining for job Safety and Health, 122. 37. Scholz, "Ecology of Regulatory Enforcement," 182. 38. The CCP created a new chain of command within CAL/OSHA. In CAL/OSHA's inspection/ enforcement system, the inspector is accountable to the District Manager, the District Manager to the Regional Supervisor, and the Regional Supervisor to the Deputy Chief. The D C O circumvents this line of command and reports directly to the Deputy Chief at CAL/ OSHA's San Francisco Headquarters. Each month the D C O mails a very brief report directly to the Deputy Chief, typically a half-page or less, in which he summarizes his activities for the previous month. On the other hand, communication between the DCO and Deputy Chief has generally been a one-way channel, with most DCOs receiving very little if any feedback from CAL/OSHA headquarters. 39. W. Haber and H. Levinson, Labor Relations and Productivity In the Building Trades (Ann Arbor: University of Michigan Press, 1956), 51. 40. Arthur Stinchcombe, "Bureaucratic and Craft Administration of Production: A Comparative Study," Administrative Science Quarterly, 4 (1959), 1 6 8 - 8 7 . 41. Thomas P. Gotzis, "The Utility's Project Administration Responsibility," in Jack H. Willenbrock and H. Randolph Thomas, eds., Planning, Engineering, and Construction of Electric Power Generation Facilities (New York: Wiley, 1980), 2 2 3 - 2 4 . 42. U.S., Congress, House, Committee on Education and Labor, "Construction Safety," 90th Cong., 1st and 2nd sess., 1967, 35. 43. At each project the subcontractors signed a special compliance

222

Flexible Regulatory

Enforcement

agreement with the general contractor in which they agreed to abide by the company safety program and the regulatory framework created by the CCP. This solved the safety engineer's subcontractor problem to a large extent, since most subcontractors are fairly safety conscious according to safety engineers, and they are willing to cooperate, more or less, despite whatever ambivalence they may have about the job site safety engineer's role. 44. Quoted by Hannah Arendt, Between Past and Future (New York: Viking Press, 1961), 123. 45. Normally, job site safety engineers are strongly discouraged for various reasons from enlisting the assistance of CAL/OSHA inspectors in dealing with problem subcontractors. A major reason is OSHA's policy of "mirror citations," which requires inspectors to cite the general contractor along with the responsible subcontractor for any violations of OSHA regulations. Under this scheme, in other words, information sharing regarding problem subcontractors may well increase the safety engineer's vulnerability to citations. See Sol Kutner, "The Impact of Regulatory Agencies on Super Projects," in Planning, Engineering and Constructing the Superprojects (American Society of Civil Engineers, 1979), 445. 46. "The majority of the safety problems that I see with a large workforce," as one safety engineer puts it, "are simple things—not wearing a face shield when you're using a grinder, not using proper eye protection when you're welding a piece of steel, not tying off when you're working off the ground. That type of stuff is just a matter of practical sense." 47. At one site, for example, the DCO's teaching load is heavier than most because the company provides no special hazard recognition training for the safety committee and has no on-site professional safety engineer. "In this project," says the DCO, "hazard recognition training is the weak part of the program, especially because they don't have a construction safety professional out there. The only training the safety committee receives is what I am able to give them. So, every week I go out there for about an hour to train them in hazard recognition." All the other companies, by contrast, provide some formal hazard recognition training for committee members, though it is not always sufficient according to DCOs. "The committee hasn't gotten nearly enough hazard recognition training from the Company," one DCO observes. "The Company did put the safety committee people through an initial hazard recognition training program, but that covered only the basics—for instance, when eye protection is needed, and when to wear hard hats. But for this job that isn't enough. I do the best that I can to give them more training." Even at companies with the most elaborate training programs, the DCOs provide some hazard recognition training to safety committee members, primarily for the labor representatives, less so for the management representatives, while the professional safety engineers, already expert in recognizing hazards, seldom require such help. 48. "I tried not to emphasize the OSHA rules, themselves, too much," the DCO explains: I don't like to do it that way because then it just becomes numbers. I'd much rather point out the hazard as it exists, not the hazard as it is written in the book. If I went and said, "That's a 1620 on the guard

223

Flexible Regulatory

Enforcement

railing order." Well, shit, that means that they would have to look it up. Give them the facts right there and forget about the numbers. The number is meaningless. To promote safety and avoid too much emphasis on rules, the DCO adds, he would draw upon his own experiences with a particular hazard. I had a very free rapport with those guys. I could talk to them and tell them about some of my experiences with a certain type of hazard that we had found. I often told them about past investigations of accidents I had done that were caused by such a hazard. This is my way of promoting safety. And I did do that. Essentially, I promoted safety. 49. Colin Diver, "The Optimal Precision of Administrative Rules," Yale Law Journal, 93 (1983), 6 5 - 1 0 9 : 67. 50. Bardach and Kagan, Going by the Book, 58. 51. The same D C O describes a similar example, one where there was a problem: There was this one product they were going to use for dust control. They were concerned whether there was any problems with the product. So I looked into the matter and found that there would be a problem. It would require ventilation. That would be expensive. So they decided not to use it at all. Instead, they purchased a vacuum. That worked out just fine. 52. To illustrate, the safety engineer offered this example: We had an embankment out here that was getting loose; the soil and rocks were getting loose. I talked to the D C O about it. And he came up with about four different ideas on how to correct it. Of those, the most feasible and economical, and the quickest, was to put up a new cyclone fence against the hill, to prevent people from getting hit by rocks and stuff. It was perfect. We don't have to gunite the hill. [That is, spray a mixture of cement, sand and water on the hill to prevent erosion.] We don't have to cut the hill back. In fact, before I talked to the DCO, we were thinking of going out and purchasing a gunite machine, and concrete the whole hill. That would have cost a fortune. We went with the DCO's suggestion and put up the fence. It was very economical. And it took only three days to install. That's how we approached problems with the DCO. He'd suggest three or four solutions and said they'd all meet standards. It's up to the company which one to go with.

7

Conclusion

At the outset of this study the question was raised, When regulatory enforcement is relaxed will business firms behave responsibly? Must government regulation be stringently enforced to ensure responsible corporate conduct, or can cooperative strategies be just as effective? Experience with the CCP indicates ways in which a less stringent and more cooperative alternative to OSHA's conventional style of legalistic enforcement can be effective. Indeed, judging from accident rates as well as the evaluations of leading participants, there is good reason to think that the CCP has been more effective than OSHA's traditional regulatory regime.

Regulatory

Pluralism

If I convey a single message in this study, for the social science study of regulation as well as for regulatory policy making, it is the importance of developing a broader and more inclusive conception of the regulatory process. For most scholarly thinking about regulation, government rulemaking and enforcement occupy the center of the regulatory universe. Throughout the study we have viewed the regulatory process from a quite different perspective, however. Instead of the state-centered perspective of legal positivism, we have stressed the significance of regulatory pluralism. And instead of viewing every form of regulatory ordering as a one-way projection of government authority, we have stressed the significance of

225

Conclusion

non-statist regulatory systems indigenous to the broader social environment in which government regulation operates. This is not to say that indigenous regulatory systems should replace governmental systems as our principal focus of study. Rather, we must examine how "public" and "private" regulation interact if we are to understand how government regulation works in society and what the actual, operative regulatory system looks like from the standpoint of regulated firms. Otherwise, as this study strongly suggests, a significant dimension of regulatory experience, one that influences the dynamics of regulatory governance in significant ways, may well be overlooked. A good example is regulatory reform at OSHA. As we saw in chapters 1 and 5, in attempting to understand the politics of the regulatory process, especially the dynamics of legalization and delegalization leading to OSHA's strategy of mandated self-regulation, it is not enough to know how government officials make and enforce regulatory policy. It is also necessary to appreciate the role of indigenous regulatory systems, and their corresponding regulatory ideologies, since these forms of social ordering can influence the actual course of regulatory enforcement (and its reform) in significant ways. The empirical evidence in chapter 1, for example, shows that a significant gulf in attitudes, values, and perceptions concerning occupational safety and health regulation divides organized labor into two ideological camps, industrial unionism and construction unionism. The evidence also suggests that each regulatory ideology reflects the constant interplay among an array of factors, historical legacies as well as current contingencies, and that these lead to different ways of relating to organizations in their regulatory environment, such as employers and governmental agencies. The key point is that an understanding of the interaction among these regulatory systems, indigenous and governmental, is essential to understanding the dynamics of regulatory reform at OSHA. For as our discussion has shown, just as industrial unionism's indigenous regulatory activity helped to make OSHA more legalistic, so construction unionism's promoted a less legalistic stance, eventually leading to the CCP's creation. A similar analysis can be made regarding the question of regulatory impact. Unless one imagines that 3000 inspectors can directly enforce occupational safety regulations in more than 5 million

226

Conclusion

workplaces, it seems reasonable to assume that OSHA has far more commitments than resources to carry them out. If this is correct, then it may also follow that OSHA's central influence is to be found not in the direct enforcement of regulations, though that is important, but in more roundabout forms of social control. From this perspective, it is useful to think of the regulatory process in terms of a communication process. On one end there is OSHA and the messages it transmits—threats, models, legitimacy, stigma, and so forth. On the other end there are the regulated firms and their mechanisms for receiving these messages. As our discussion in preceding chapters has shown, if we are to appreciate OSHA's effects adequately from the perspective of regulated firms, it is crucial to highlight the reception process. More specifically, it is important to know how these messages are evaluated and processed by the regulated firms. Which employees do do the processing, for example, and what are their capabilities to receive and use that information? As Builder Inc. and Constructor Ltd.'s administrative experience vividly illustrates, the regulatory consequences of these messages can be powerfully affected by the administrative needs, skills, and resources of the actors in the indigenous regulatory system. One example is the threat communicated by OSHA. Although OSHA's first administrative leaders downplayed the threat of stringent enforcement, safety department officials at both companies nonetheless amplified that element to the point of a "horrendous threat," perhaps in part because to do so served their administrative needs and professional aspirations in important ways. With OSHA's threat interpreted and transformed in this way, for example, it is understandable that safety department officials were able to persuade top company executives to take OSHA seriously and to officially mandate a policy of thoroughgoing voluntary compliance with the OSH Act. Other examples involve the communication of models and legitimacy by OSHA. First, think of OSHA as a model. From this perspective, it is worth recalling that prior to OSHA's creation most construction site safety rules were vague, unsystematic, and weakly binding. The position of safety engineers on the job site was tenuous and insecure, partly because they lacked rules with sufficient

227

Conclusion

precision and authority to effectively circumscribe the reach of the superintendent's authority, and partly because their role lacked a strong basis of authority. Soon after OSHA's creation, though, safety department officials at both companies reorganized their safety programs. A strong characteristic of this remodeling effort is that OSHA provided the model for the renovation (norms, procedures, structures, and so forth), as when safety department officials reconstituted their safety programs by incorporating OSHA's regime of regulatory standards. Now think of OSHA in terms of communicating legitimacy. With OSHA's creation, as we have seen, safety department officials drew upon government regulation as a source of normative validation, thereby suffusing their internal regulatory systems with the color of law. Hence, the safety programs developed a new basis of authority—the authority of law—which safety department officials turned to their advantage in order to bolster their organizational status in significant ways. As a result of these developments, the safety program thus acquired more authoritative boundaries (OSHA regulations) and more authoritative enforcers—job site safety engineers enforcing "The Law." This last point is critically important because it highlights OSHA's effects from a developmental perspective. The effects OSHA radiated, in other words, enabled safety department officials to create a sphere of administrative responsibility on the job site under their direct supervision and more or less insulated in significant respects from the job site superintendent's control. Suffice it to observe that this represents a major milestone in the administrative development of these safety departments. When a system of dual supervision was established, the superintendent's traditional domination of job site safety programs finally came to an end. To put this development in more general terms, the institutionalization of a precarious value frequently requires the formation of a group within the organization that spontaneously champions the value at stake. If the group lacks sufficient authority and autonomy to protect that value, however, then the process of institutionalization can be stymied. Seen from this perspective, the important point to note is that OSHA facilitated a restructuring of authority

228

Conclusion

relations at Builder Inc. and Constructor Ltd. The end result, of course, is that safety department officials acquired more authority and autonomy to safeguard a precarious value—occupational safety —thus advancing the development of enterprise responsibility at Builder Inc. and Constructor Ltd. in a significant way. Just as there are indigenous regulatory factors conditioning OSHA's effects, there are similar factors conditioning the regulatory effects of the workers' compensation system. To highlight that interaction, consider once again the evolving role of that system in Builder Inc. and Constructor Ltd.'s safety programs. As we have seen, the workers' compensation system exerted little influence on their accident prevention efforts before the mid-1970s, in part because neither safety program measured or reported workers' compensation costs until the late 1960s. Under these circumstances, the workers' compensation system was an insignificant presence in their regulatory environment. Today, by contrast, the workers' compensation system plays a major regulatory role in the two safety programs. More than that, safety department officials now describe workers' compensation costs as the "real driving force" in their programs. Why the change? A partial explanation can be found in the rapid rise in premium costs since the 1970s. But, as we have seen, that is only part of the story. In addition, it is essential to consider another sphere of indigenous regulatory ordering—the professional safety movement. More particularly, one must underscore the safety departments' professional development. Guided by a distinct body of professional commitments, ideas, and aspirations—Safety Management—safety department officials converted the workers' compensation system into a safety management tool, not only to highlight job site accident costs, but more importantly, to facilitate consideration of occupational safety as a significant factor of production. Thus, while the workers' compensation system functions as an information system (as accidents increase so do company costs), the actual influence exerted by the system will be powerfully affected by the information processing capacities of the firm's indigenous regulatory system, such as the administrative initiative and know-how of safety department officials. These examples reinforce an important point. A firm's actual

229

Conclusion

regulatory system has a multiplicity of sources. Significant counterparts or analogues to direct government regulation can be found in other locations in society—the workers' compensation system, corporate safety programs, the professional safety movement, the socio-economic networks linking unions and their employers, among others. Most important, the interaction among these regulatory spheres (public and private, external and internal) conditions the operation of each in important ways. In this conclusion lies an important moral for future social science research on regulation: If we are to understand how government regulation actually operates in society, and what the operative regulatory system looks like from the standpoint of regulated firms, there must be more effort to analyze the administrative experience of regulated firms with respect to regulatory pluralism. How do indigenous regulatory systems operate? What is the relation between governmental regulation and indigenous regulatory acitivity? In what ways do indigenous regulatory systems serve to reinforce (or undercut) the impact of government regulation? Aside from government regulation, how many other regulatory spheres influence indigenous regulatory activity? And in what ways do indigenous regulatory systems serve to reinforce (or undercut) the impact of non-governmental regulation? According to this line of reasoning, then, what is important is not how each regulatory sphere operates by itself, but rather how regulation in one sphere affects that in another sphere and what is the overall result of these interactions, this realm of reciprocal influence and mutual dependence, for regulated firms. By exploring the dynamics of regulatory pluralism in this way, in a variety of contexts, our understanding of how regulation operates in society should thus be advanced considerably. If these observations are correct, there remains the question of method. It would, of course, be an overstatement to say that a case study approach coupled with an emphasis on organization theory is the only way to address these questions. But at least part of the answer can be found in this approach. Indeed, one may argue that a detailed examination of organizational experience is essential to understanding the dynamics of regulatory pluralism, as this study suggests. And if that is so, then it may well be that a case study

230

Conclusion

approach analyzing regulated firms as complex organizations is especially suited for exploring this largely neglected area of research on regulation. Enterprise

Responsibility

Throughout much of this study, at least implicitly if not explicitly, we have used enterprise responsibility as a normative benchmark for assessing the impact of government regulation. Enterprise responsibility has been used as a developmental concept, in other words, one that highlights the natural history of a regulated firm's commitments to social values (occupational safety) so that we can better understand how and why those commitments have changed over time in terms of their depth and effectiveness. According to this line of reasoning, some corporate actors, like some individuals, are more "responsible" than others. Thus conceived, a focus on enterprise responsibility is concerned with the institutionalization of precarious values within the regulated firm and the ways in which regulation (among other factors) can affect that process. The aim, in short, is to understand the moralizing effects of regulation in the development of responsible organizations. 1 To illustrate, consider once again the two most critical factors in the CCP's success, the labor-management safety committee and the DCO, and the ways in which they advanced the development of enterprise responsibility. Let us begin with the safety committee. As the key intra-corporate compliance mechanism mandated by the CCP, the labor-management safety committee may be regarded (as it was by the CCP participants) as the centerpiece of a regulatory program designed to strengthen private regulatory systems. In fact, the safety committees fortified the job site safety programs in more crucial ways than any other feature of the CCP. While this leads to the conclusion that the labor-management safety committee represents the single most important factor in the CCP's success, the point critical to this discussion is the safety committee's role in advancing the development of enterprise responsibility. If we define enterprise responsibility in terms of institutionalizing precarious values, that is, the evolution of a more effective and deep-seated commitment within the regulated enter-

231

Conclusion

prise to regulatory goals, then the safety committees furthered that development in a fundamental way. How? As we saw in chapters 2 and 3, several factors taken together help explain the institutionalization of Builder Inc. and Constructors Ltd.'s commitment to occupational safety. Chief among these are: (1) the formation of a group within the organization (the safety department) strongly committed to occupational safety goals; (2) the growth and development of the safety department's authority and autonomy within the organization; and (3) the expansion of the safety department's base of social support. This last point is most important in attempting to understand the safety committees' essential contribution to the development of enterprise responsibility. As we saw in chapter 4, the institutionalization of a precarious value requires social support, and safety department officials at Builder Inc. and Constructor Ltd. elicited that support from management in a variety of ways—new reporting systems, new accountability mechanisms, new avenues of participation, and so on. Of course, that is only part of the story. When we look at the issue strictly from the standpoint of labor's support for the job site safety program, prior to the CCP, it is difficult not to conclude that Builder Inc. and Constructor Ltd.'s administrative development was deficient, partial and one-sided, in terms of establishing an effective base of social support for the safety departments efforts. But all this soon changed as a consequence of the CCP and the safety committees' operation. Part of the reason is that the labor representatives made the safety program less threatening and more accessible because they were "insiders" from the perspective of fellow workers. Another part is that the management representatives also lowered the barriers to labor's involvement by bolstering the safety committee's problem-solving authority and by enhancing the safety program's perceived effectiveness among workers. As a result of such developments, the CCP achieved labor's involvement in job site safety programs. In this way, the labor-management safety committee advanced the development of enterprise responsibility in a crucial way by expanding the safety department's base of social support to include labor as well as managment. In this way, moreover, the labor-management safety committee enhanced

232

Conclusion

the job site safety program's problem-solving capacity in significant respects, especially in dealing with the momentary hazards and behavioral problems that, perhaps more than anything else, make construction one of America's most hazardous industries. To further illustrate the concept of enterprise responsibility, let us now turn to the DCO's role in the CCP. If there is an overriding characteristic of the regulatory role of the DCO, in contrast to that of the conventional CAL/OSHA inspector, it is that the DCO can support and assist the job site safety program in ways the CAL/ OSHA inspector cannot. Hence, the DCOs advance the development of enterprise responsibility in much the same way as do the labor-management safety committees; for both expand the safety department's base of social support in crucial respects, one by bringing about labor's involvement in the job site safety program, the other by providing a new source of support and assistance for the job site safety engineer. To take an example central to the discussion, recall that the DCOs sometimes resemble tough cop-like CAL/OSHA compliance officers. What motivates them to do so differs significantly from what motivates the CAL/OSHA inspectors, however, since the DCOs' role is not decisively influenced by the production demands of CAL/OSHA headquarters and federal monitors ("maximize the number of citations sustainable on appeal") but by the administrative needs of the job site safety program. In the case of the subcontractor problem, for example, the discussion shows that the essential purpose of the DCO's cop-like enforcement style has been to remedy weaknesses in the indigenous regulatory system by lending his authority to the job site safety engineer's regulatory efforts, especially when it comes to preventing recalcitrant or "hardnosed" subcontractors from taking dangerous shortcuts. A similar analysis can be made of the DCOs' role as consultants, as we have seen, for they have supported and assisted the job site safety program in at least three ways—as educators, as regulatory guides, and as technical consultants. Once again, in these and other ways, the evidence suggests that the DCO's role differs fundamentally from that of the CAL/OSHA inspector, whose legalistic posture generally encourages an adversarial relationship, in contrast to the DCO's essentially cooperative approach to regulatory problem solving. Judging from all this, when we consider the ways the labor-

233

Conclusion

management safety committee expands the safety department's base of social support, then add the ways in which the DCOs complement and fortify the safety engineers' role on the job site, it is then quite understandable that the CCP made the company safety programs more effective in significant respects. In other words, and more generally, by providing added social support for indigenous regulatory systems, so that some serious administrative deficiencies associated with construction site safety programs were remedied to a considerable extent, the CCP facilitated the institutionalization of a precarious organizational value, occupational safety, thus advancing the development of enterprise responsibility in a fundamental way. A Success

Story?

Was the CCP a success? Probably. There are at least three reasons for judging the program successful. First, when we evaluate a safety program's performance, we typically think of accident rates. Certainly, there is good reason to regard the CCP a success in those terms. As we saw in chapter 1, accident rates at CCP projects were significantly lower than rates for comparable projects in California, and also lower than accident rates for comparable company projects. The second reason for regarding the CCP as a success concerns the program's influence on how construction site safety programs operate. As noted in the preceding section, there is strong evidence that the CCP fortified job site safety programs in some significant respects, especially in dealing with the subcontractor and labor participation problems, thereby advancing the development of enterprise responsibility in a fundamental way. The third reason is the evaluation of the program by its participants. As we have seen, at each project all the major parties to the program—labor, management and CAL/OSHA—could withdraw from the CCP at any time and for any reason by invoking an escape clause. No one did withdraw, or threaten to do so: according to leading participants the program "worked." Thus, there is much warrant for judging the CCP a success. Having said that, I must enter two caveats. One concerns the question of the CCP's "success" strictly from the standpoint of the thousands of rank and file construction workers involved in the

234

Conclusion

seven CCP projects. From their perspective, what real difference, if any, did the CCP make compared to job site safety programs under OSHA's traditional regulatory regime? From their perspective was the CCP a success? Although my discussions with a small sample of workers (as well as other participants) would seem to support the case for the CCP's success from labor's standpoint, solid answers to these questions would require a much larger sampling of worker attitudes than was feasible because of cost limitations. The other caveat involves the DCOs' role in the Program. Quite simply, the CCP could be viewed as an extravagance so far as costs are concerned. If the DCOs spent considerably more time with the CCP projects than inspecting similar projects under OSHA's traditional regulatory regime (perhaps even ten times as much in some cases), and if these companies already had exemplary safety records, would not OSHA's scarce regulatory resources be put to more productive use inspecting companies with bad records? From the standpoint of regulatory efficiency, in other words, was not the CCP a gross regulatory mismatch? The criticism cannot be easily dismissed. Having said that, it also could be argued that the CCP was a regulatory experiment, and that this problem may simply represent a shakedown phase in the implementation of a new regulatory strategy. If OSHA learns from this experiment, and revises the program accordingly, it is not fanciful to suppose that the agency could develop more efficient guidelines designed to reduce the DCOs' involvement without unduly compromising their ability to "monitor" the job site safety program.2 Just how OSHA will address the regulatory efficiency issue remains to be seen, however. Flexible Regulatory

Enforcement

and Responsive

Law

From one perspective, the CCP represents a modest reform. The program's scope was limited and it did not provide wide-ranging solutions to broad regulatory problems. But such a view, I believe, misses the CCP's essential significance. OSHA's regulatory reform (both the Cooperative Compliance Program and the Voluntary Protection Program) represents a major departure from the agency's traditional regulatory strategy, a fundamentally different approach to regulatory policy making, one that was avowedly limited in

235

Conclusion

scope because the essential aim is to match specific regulatory tools with particular regulatory problems. The CCP, in short, is a paradigmatic example of flexible regulatory enforcement. What implications does all this have for regulatory policy making? Perhaps of most importance, this study of flexible regulation should make clear the need for a more discriminating approach to regulatory intervention. To explain why this is so, we should recall that, characteristically, OSHA's principal regulatory tool (an inspection-and-citation enforcement strategy) is not well suited to deal with the ever-changing nature of construction site hazards, because standards cannot be written to cover every possible hazard, because an inspection force cannot monitor all hazards, and because compliance inspections alone may not motivate employers and employees to police their own workplaces. Perhaps just as important, OSHA's conventional enforcement strategy has failed to give full and proper attention to the significance of variation among regulated firms, bad firms versus good ones for instance, and the corresponding need to adapt regulatory tools in light of those differences. In preceding chapters we have seen that the CCP represents a different approach because it was specifically designed to adapt techniques of legal control to employers at a distinctive stage of organizational development. On the one hand, the program focused on a particular aspect of CAL/OSHA's overall regulatory task by limiting program participation to large unionized construction companies with already excellent safety records. On the other hand, it tailored its regulatory strategy accordingly in two major ways: by delegating major regulatory responsibilities to the labormanagement safety committee and by pursuing through the DCO an essentially cooperative approach to regulatory problem solving. By using a specialized regulatory tool developed for a particular regulatory setting in this way, a context especially conducive to self-regulation and cooperative regulatory enforcement, there is strong evidence that OSHA strengthened the job site safety programs of participating companies in ways its traditional regulatory strategy could not, to say nothing of reconciling a persistent dilemma associated with cooperative and punitive strategies of regulatory enforcement. The importance of this last point cannot be overstressed in at-

236

Conclusion

tempting to appreciate the flexible model's significance from a policy perspective. As the history of California's occupational safety program vividly illustrates, in devising an enforcement strategy regulatory policy makers confront a persistent dilemma raised by the conflicting imperatives of an effective regulatory program—winning cooperation and coercing compliance. The DIS's administrative experience illustrates one horn of the dilemma (cooperative regulation degenerates into lax enforcement), while CAL/OSHA's illustrates the other (coercion destroys agencyemployer cooperation). With that historical backdrop, the important point is that flexible enforcement may offer promise toward reconciling this dilemma, provided that one uses regulatory tools suited for particular regulatory tasks. According to this line of reasoning, as we have already seen, what is important for flexible regulatory policy makers is not which enforcement strategy they should use—cooperative or punitive. Rather, the critical question is when to employ a cooperative or punitive approach. As in the case of the CCP, for instance, with program participation limited to "good" firms rather than "bad" ones, the empirical evidence suggests that the virtues of cooperative enforcement have been maximized and its vices minimized. Certainly, based on a single regulatory experiment, it is far from clear under what circumstances and to what extent a flexible regulatory strategy can successfully accommodate these opposing yet inseparable requirements of an effective regulatory program. At the very least, though, it is clear that the flexible model merits further consideration as an alternative to the cooperative and punitive models. Nor is all this to suggest that the CCP somehow eliminated once and for all the characteristic problems associated with cooperative enforcement. Indeed, there is little doubt that that these characteristic problems also point to the CCP's most serious area of vulnerability: the DCOs' cooperative approach could easily lead them to become overly familiar and responsive to the employers' concerns and problems at the expense of worker safety. California's pre-OSHA cooperative strategy under the DIS serves as a stark reminder of such dangers. But on closer examination at least three features of the CCP may discourage such a development. In the first place, construction projects are temporary, and so is the

237

Conclusion

DCO's relationship with the employer. The dangers of cooptation that can arise from a long-term relationship between regulator and regulated are thus reduced. Second, apart from the one CCP site each DCO monitors, the rest of his or her time is devoted to conventional enforcement activities, namely, stringent prosecutionoriented enforcement. Under these circumstances, DCOs are not likely to lose their enforcement know-how if and when it is required at a CCP site. Finally, and perhaps most important, organized labor's very active involvement in each CCP project, particularly that of the labor representatives, provides a constant check on the DCO's activities. And more than anyone else, labor has a strong incentive to guard against any DCO decisions that might unduly compromise the safety program's effectiveness. Hence, there is good reason to believe that the virtues of cooperative enforcement can be maximized, and its vices minimized, provided that this regulatory strategy is closely tied to strong safety programs that insure labor's effective participation. Naturally, given the apparent success of OSHA's first major regulatory experiment, it is tempting to make the most of this strategy, to extend it to as many work places as possible and perhaps to other regulatory contexts as well, say, environmental protection or consumer safety. As the preceding discussion strongly suggests, however, in extending this approach, regulatory policy makers should give careful consideration to the types of regulatory tasks this form of mandated self-regulation is best suited to handle. To put the point more broadly, each regulatory strategy may be characterized in terms of the types of problems it is best suited to handle and the social conditions essential to its functioning well. To take some examples central to the discussion, one consideration involves the character of regulated firms. The simple fact is that all four companies participating in the CCP had strong safety programs to begin with. In consequence of this, it is not fanciful to suppose that these firms are particularly suited to a regulatory program based upon cooperative self-regulation. And if that is so, then regulatory policy makers should proceed with extreme caution in expanding this regulatory scheme to companies whose indigenous regulatory systems are something less than exemplary. Another consideration involves the nature of regulatory problems. In the vast majority of cases, as we have seen, the labor-management

238

Conclusion

safety committees share a broad area of agreement as to what constitutes a safety problem as well as what steps are required for abatement. Whether this process of consensual problem solving can function as effectively in a very different task environment, one dominated by complex health hazards for instance, remains unclear. And still another consideration involves the social structure of the regulatory context. Note that in the CCP the constituents who benefit most directly from an effective self-regulation program (workers) are also directly involved at the site where the violations occur. In contrast, in many other regulatory contexts (such as environmental protection and consumer safety) no constituency of this sort may exist. At the very least, then it is questionable how well this form of mandated self-regulation would be suited to such contexts. To put all this in more positive terms, if a firm has a strong indigenous regulatory system, a regulatory task environment that readily lends itself to consensual problem solving, and workers who would directly benefit from a strong self-regulation program, then that that firm may well be a good candidate for mandated self-regulation of this sort. This, of course, is only a crude first approximation. Over time, after we gain more experience with this regulatory strategy, in a variety of contexts, we should be able to expand and refine this list. Beyond that, though, it is conceivable that a well developed theory of matching regulatory tools to regulatory problems can be formulated with sufficient power to furnish regulatory policy makers with good guidance on these matters. But as of now, we have no such theory. As the preceding discussion has shown, the first and perhaps most obvious characteristic of the flexible model of regulatory enforcement is its matching regulatory tools to regulatory problems. That in itself is a major way in which the CCP's flexible strategy differs from OSHA's traditional regulatory style. To understand how these two regulatory policies differ in depth, however, we cannot stop here. When considered in a larger framework of theory, such as Nonet and Selznick's model of law in society discussed in chapter 1, there is also reason to think that beyond the obvious differences, our two regulatory policies also proceed from fundamentally different starting points. That is to say, the two enforcement strategies call to mind very different modes of governance

239

Conclusion

closely tied to differing conceptions of the role of law in society, a point worth stressing once again in bringing this study to a close. From observing OSHA's traditional regulatory posture in considerable detail, it seems clear that the agency's highly centralized and rule-bound methods of social control represent a prime example of the "autonomous" model of law as described by Nonet and Selznick, a model whose distinctive style and ethos derives from its emphasis upon governance by rules. From the standpoint of autonomous law, prescribing and enforcing rules is the way to get things done and legality is understood as close accountability to rules. Legalism is the affliction of autonomous law, which means that this mode of legal ordering manifests a "disposition to rely on legal authority to the detriment of practical problem solving." 3 Clearly, OSHA's traditional regulatory posture evokes an image of law's role in society that differs fundamentally from the regulatory posture underlying flexible enforcement. An examination of Nonet and Selznick's "responsive" model of law helps explain why. Whereas the autonomous model is rule-centered, with legal energies devoted to ensuring accountability to rules, the responsive model is problem-centered, with legal energies devoted to diagnosing institutional problems and redesigning institutional arrangements. More particularly, with problem solving a central function of law, the responsive model stresses the importance of opening the boundaries of legal knowledge, beyond rule-governed formal rationality, in order to increase its problem solving competence. In the tradition of legal realism and sociological jurisprudence, the responsive model is thus aimed at enabling legal institutions "to take more complete and intelligent account of the social facts upon which law must proceed and to which it is to be applied." In the context of responsive law, prescribing and enforcing rules is only one way of getting things done: "New modes of supervision, new ways of increasing the visibility of decisions, new organizational units, new structures of authority, new incentives— these are the characteristic remedies o f . . . [responsive] law." 4 This leads to the conclusion that matching regulatory tools to regulatory problems is a central aim of responsive law. In a fundamental way, then, the CCP's flexible regulatory enforcement strategy is firmly established within the view of law's

240

Conclusion

role in society represented by the responsive model. Perhaps most conspicuously, OSHA's new strategy of mandated self-regulation, instead of using uniform legalistic enforcement, with little if any regard to the particular context in which law is applied, is specifically designed to adapt techniques of legal control to particular organizations at a distinctive stage of organizational development. Could it be, then, that after a decade of intensive regulation under the old regime of autonomous law, OSHA is now entering a new stage of legal development, one that incorporates maturing perceptions about our regulatory problems into the nation's evolving regulatory system? Only time will tell, of course. In any event, there can be little doubt as to what our administrative experience with the CCP does illustrate. The program's success underscores the promise a more discriminating approach to occupational safety regulation holds for regulatory policy making and future regulatory reform.

NOTES 1. This line of analysis is most thoroughly developed within the institutional school of organization theory, particularly the work of Philip Selznick. See especially, Selznick's Leadership in Administration (Evanston, 111.: Harper and Row, 1957). 2. Probably the most obvious candidate for reform involves hazard recognition training for labor representatives, which was the D C O s ' most time-consuming task by far. Following the Swedish model, for example, O S H A could explore the possibility of charging employers a fee to establish a special training program for labor representatives. See, for example, Steven Kelman, Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Regulations (Cambridge, Mass.: MIT Press, 1981), 2 0 2 - 0 3 . 3. Phillipe Nonet a n d Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Harper Colophon Books, 1978), 1 4 - 1 5 . 4. Ibid., 107.

Appendix: Research Methods

The last construction project involved in the Cooperative Compliance Program was completed in 1984. For the participants, memories of the CCP have grown dim with time. Even the institutional memory located in CAL/OSHA files may have been erased, for CAL/OSHA no longer exists, having been replaced in 1987 by federal OSHA. So it is difficult to say whether relevant documents still exist. Because the research reported here cannot be replicated, and the reader must therefore rely on the descriptive material I provide, it is doubly important that I present the details of how the research was carried out. In deciding to undertake a study of this sort, one of the first issues the researcher must address is the question of access. To begin with, in April, 1983 I met CAL/OSHA's Deputy Chief and explained the purpose of my study. He agreed to give me complete access to CAL/OSHA's CCP-related files, provided that all names of individuals and companies remained confidential. In addition, he granted me permission to interview anyone within the agency. Next, I approached the four companies involved in the CCP, specifically, the managers of their respective safety departments. After I explained the purpose of my study and assured them of complete confidentiality, they also agreed to cooperate with the project. At the same time, though, these officials made it unmistakably clear that time is money, and that in granting me access to company personnel the use of their time was to be treated accordingly. As it

242

Research

Methods

turned out, two companies (which I call Builder Inc. and Constructor Ltd. in the study) were much more generous with their time than the other two companies participating in the CCP. Even so, with all four companies noticeably wary about how much of their time I would be requiring, it was easy to see that more time consuming research strategies (such as participant observation) would be out of the question. Hence, I chose interviewing as my principal research tool, supplemented by document analysis and transient observation. In preparation for the interviews, I spent two weeks at CAL/ OSHA headquarters, where I examined documents and talked with agency officials for background information on the CCP. CAL/ OSHA officials, as I mentioned, gave me complete access to their large collection of CCP-related documents on file at the agency's San Francisco headquarters. These include the regulations, guidelines, policy statements, and legal interpretations governing the Cooperative Compliance Program's operations; all the correspondence between CAL/OSHA and FED/OSHA officials pertaining to the program; internal agency memoranda and reports regarding the program; individual "case files" on the seven self-regulation projects, each of which includes (among other things) reports by the CAL/OSHA Designated Compliance Officer charged with monitoring the project, correspondence between CAL/OSHA and program participants, injury rate data for the sites, data on worker complaints, and data on the health and safety hazards found at the sites by the DCO during his "on-site audit" of the project. In addition, the Cooperative Compliance Program mandated specific documentation activities for the participants. These required the employer's safety department to maintain "complete files" of "reasonably detailed minutes" of labor-management safety committee meetings, and of the safety committee's compliance inspection reports which note violations of CAL/OSHA regulations and the corrective action taken. Copies of all these documents, on file at CAL/OSHA headquarters, were a fruitful source of background information on the CCP. I took copious notes on these documents at the start of the study. As the study progressed, moreover, I returned to these files regularly, to examine new documents as well as to reexamine old ones in light of new interview data.

243

Research

Methods

Lengthy interviews were conducted with approximately 75 individuals, including representatives from OSHA, construction companies, and labor unions, among others. After experimenting at the start with formal and informal styles of interviewing, I soon decided that maintaining a conversational style, rather than following a specific ordered list of questions, had distinctive advantages under the circumstances. 1 So I conducted the interviews as lengthy conversations, usually lasting about an hour and frequently much longer. The weakness of the informal, conversational interview is that it requires a great amount of time to get systematic information. To deal with the problem, and to help make effective use of the limited time available in the interviews, I used an interview guide, that is, a checklist of general topics I explored in the course of an interview. In this way, basically the same information was obtained from a number of people, thereby facilitating comparisons among the responses. Based on those comparisons, as the need for clarification and additional information became apparent, follow-up interviews (sometimes several) were conducted with a number of the respondents. In most cases I tape recorded and transcribed the interviews, for notetaking, however conscientious, is no substitute for the accuracy of a transcribed interview. There can be some drawbacks to tape recording, of course, especially when it comes to microphoneshy respondents who view the tape recorder as an intrusion. I sought to minimize such concerns in various ways. At the beginning of the interview, for instance, I asked the respondents if they had any objections to taping the discussion. Most did not. Furthermore, I strongly encouraged them to turn off the recorder whenever they wanted to make a comment off the record. Finally, and probably most important, I repeatedly assured each respondent of total confidentiality. Corporate-level officials from the four companies were usually interviewed at their respective home offices. In addition to interviewing eleven safety department officials, I interviewed eight company executives (including in-house counsel), though my research concerns demanded that I spend most of the time with safety department officials. As mentioned, safety department officials at two companies ("Builder Inc." and "Constructor Ltd.") were especially generous with their time in providing information

244

Research

Methods

and guidance, as well as providing documentary evidence; this explains why chapters 3 and 4 are limited to a study of the administrative development of the safety programs of these two companies. In visiting each of the seven CCP projects, I had long conversations with at least one job site safety engineer (or the functional equivalent in one case) on each construction site. During these visits, I also had extended discussions with three construction site supervisors and briefer conversations with several more. At four CCP projects, moreover, I spent the entire day with the safety engineer, accompanying him on his normal rounds, asking questions thoughout the process. That does not mean, of course, that I was able to participate in the life of the safety program during these brief visits and observe day-to-day activities as in fully participant types of research. At the very least, though, I was able to clarify and cross check my interview data by observing for myself what takes place on large-scale construction projects, especially from the perspective of the job site safety engineer. Interviews with construction workers posed some tactical problems. At several CCP projects safety department officials offered me the opportunity to speak with safety committee labor representatives and regular construction workers, in private, on the construction site. I declined their offers, though, given the obvious potential for bias and distortion when interviewing workers under those circumstances. To avoid these outside influences as much as possible, and minimize the bars to spontaneity that might inhibit free expression, I sought to arrange a more appropriate time and place for interviewing workers. My interviews with nine labor representatives were thus conducted off the project (in houses, coffee shops, and taverns). I also visited four local union halls in order to meet with regular construction workers involved in CCP projects. There, I had conversations of varying lengths with 15 construction workers in order to learn about the CCP's impact from their perspective, and perhaps most important, to use their accounts to cross check interview data from other sources. Needless to say, this is not a representative sample, given the fact that many thousands of workers were involved in CCP projects. CAL/OSHA officials were easily accessible. While I talked at varying lengths with people at all levels of the organization, includ-

245

Research

Methods

ing district and regional managers as well as past and present agency directors, my research focus led me to spend most of my time interviewing field enforcement personnel, including five regular compliance officers as well as all nine Designated Compliance Officers (DCOs). Interviews played a central role in collecting data for this study, since under the circumstances they seemed to be the most appropriate and efficient method for collecting the kinds of information required. "If one were going to be limited to a single method," as Webb and his colleagues write, "then certainly the verbal report from a respondent would be the choice. With no other device can an investigator swing his attention into so many different areas of sustantive content . . . " 2 One critical question then is how do we know if the informants are telling the truth? The answer to this question is important, not only because so much of the data in this study has been collected through interviews, but also because data collected in this way might be biased and distorted. William Foot Whyte identifies three major sources underlying misleading statements by interviewees: (1) The respondent did not observe what happened, or cannot recollect what he did observe, and reports instead what he supposes happened. (2) The respondent reports as accurately as he can, but because his mental set has selectively perceived the situation, the data reported give a distorted impression of what occurred. Awareness of the "true" facts might be so uncomfortable that the informant wants to protect himself against his awareness. (3) The informant quite consciously modifies the facts as he perceives them in order to convey a distorted impression of what occurred. 3 Of course, this list could be extended 4 , but the essential point remains the same: the conscientious field researcher, alert to sources of bias and distortion, must not take the respondent's words at face value, but with a critical eye, one that is hard nosed about the validity of important pieces of information gathered in the interviews. Is the story plausible? Is it consistent? How confident is the repondent in his account of what happened? Is the respondent's story based on direct experience or second-hand accounts? And

246

Research

Methods

from past experience, is the respondent known as a reliable observer? Perhaps of most importance, I have sought to enhance reliability by following the advice of experienced field researchers when it comes to cross checking accounts given by different informants. As John Dean and William Foote Whyte write: "[B]y the thoughtful use of the information revealed in the account of one informant, the research can guide other interviews toward data which will reveal any distortions incorporated in the initial account and usually will provide details which give a more complete understanding of what actually happened." 5 As already noted, to set the stage for making such comparisons among respondents, I used an interview guide so that essentially the same issues were discussed with a number of people. In addition to cross checking interviews, another way a researcher can assess the validity of interview data is to "triangulate" that data with information gathered through other methods. 6 To be more concrete, I have sought to corroborate (or disconfirm) my interview data through document analysis and transient observations. CAL/OSHA's files, for example, have been a copious source of information regarding the CCP's operation. So as much as possible I have cross checked important pieces of information gathered through interviews with information contained in those files. In several cases, for instance, detecting what seemed to be discrepancies, I asked the respondents for further clarification in followup interviews. My visits to the various construction sites served a similar purpose, especially in cross checking interview data involving the safety engineer's role as well as the nature of the construction process (and the safety related problems intimately associated with that process) more generally. Finally, in an effort to determine the validity of the research interpretations, toward the end of my field work I frequently found it useful to discuss indirectly with key informants propositions I was beginning to formulate. This process of offering interpretations and testing propositions on informants proved to be an immensely useful method of refining my interpretations. The field work was carried out mainly between June 1983, and May, 1984, and thereafter intermittently throughout 1984 and early 1985 as the need for additional information became apparent.

247

Research

Methods

NOTES 1. See, for example, Leonard Schatzman and Anselm L. Strauss, Field Research: Strategies for a Natural Sociology (Englewood Cliffs, N.J.: PrenticeHall, 1973), 70ff. 2. Eugene J. Webb, et al., Unobtrusive Measures: Nonreactive Research iti the Social Sciences (Chicago: Rand McNally College Publishing Company, 1966), 172-73. 3. William Foote Whyte with the collaboration of Kathleen King Why te, Learning from the Field: A Guide from Experience (Beverly Hills, Calif.: Sage Publications, 1984), 124. 4. See, for example, Vidich and Bensman, "The Validity of Field Data," Human Organization, 13:1 (1954), 2 0 - 2 7 . 5. John P. Dean and William F. Whyte, " H o w Do You Know If the Informant Is Telling the Truth," in George J. McCall and J.L. Simmons, eds., Issues in Participant Observation (Reading, Mass.: Addison-Wesley, 1969), 113. 6. See Webb, et. al., Unobtrusive Measures, 74ff.

INDEX

Accident Cost Accounting System, 117-18,132 nn.51-53 Accident costs: and Accident Cost Accounting System, 117-18; and uninsured or hidden costs, 117, 131 n.49; and inclusion of workers' compensation insurance costs, 114 Accident prevention: and prevailing view of inevitability of high accident rates, 100, 106-07; acceptance of as management responsibility, 106; and "safety education" movement, 90-91 Accident rates: at CCP projects, 2 - 3 ; and high rates in construction industry, 138; and prevailing view of inevitability of high rates, 100, 106-07; and OSHA's regulatory impact, 6; at San Onofre before and after selfregulation, 45, 47 Accountability: distinguished from responsibility, 112-14; and annual reviews of supervisors' safety performance, 121. See also Enterprise responsibility

Administrative centralization of OSHA, controversy over, 38, 42. See also State plans under OSHA AFL-CIO Building and Construction Trades Department: and Construction Safety Act, 35, 51n.49; and "National Work Rules Agreement" with NCA, 29. See also Construction unions. AFL-CIO Building and Construction Trades Training Program: and origins of CCP, 42-43; and participation of NCA, 43 AFL-CIO Department of Occupational Safety and Health, 37 AFL-CIO Industrial Union Department, 37. See also Industrial unions American Society of Safety Engineers (ASSE): origins of, 87; and professionalization of safety engineering, 89-90, 93; and "safety education" movement, 90. See also Safety engineers Asbestos incident, 163-71; and initiation of "CAL/OSHA Asbestos

250

Index

Asbestos incident (continued) Inspection," 165; and craft rivalry as factor in, 164 Authority: in relation to craft administration, 197-98; and emergence of dual supervision, 101-03; of Management Representative, 150-51; and Mommsen's definition of, 65, 203; and OSHA as a system of authoritative rules, 70; and internalization of regulatory standards, 71; and traditional authority relations at construction sites, 99-100, 197-99 Autonomous law: roots of in bureaucratic ethos, 15; and "legalism," 191; and Nonet and Selznick's model of law-insociety, 14; approximated by OSHA's traditional regulatory posture, 15, 239. See also Repressive law; Responsive law Bacow, Lawrence: and proposed reform of OSHA regulatory strategy, 11; on need to match regulatory tools to regulatory problems, 13-14,194 Bardach, E.: on drawbacks of centralized regulatory enforcement, 212; on public contrasted with private regulation, 7 Barnard, Chester, 144 Bendix, Reinhard, 23, 31 Bingham, Eula (OSHA Chief under President Carter): drops her initial opposition to CCP, 47; her political base in industrial unions, 46 Boden, Les: and Boden-Wegman proposal for requiring safety stewards, 11; and correlation between high perceived effectiveness and actual effectiveness of regulation, 138, 145, 168 Bowles, Chester, 184 Braithwaite, John, 106, 111 Builder Inc.: acquired by chemical company, 122-24; influenced by

NCA's safety committee, 12829n.31; origins of safety department of, 57; professionalization of safety department of, 94-99; and development of performance evaluation system including supervisory safety record, 124. See also Construction industry; Constructor Ltd. Building and Construction Trades Department. See AFL-CIO Building and Construction Trades Department California Division of Industrial Safety (DIS). See Division of Industrial Safety California occupational safety program: and "crisis in the workplace," 182; transformed by federal monitoring and union pressure, 190 CAL/OSHA: and CCP's place in its chain of command, 221 n.38; increases volume of citations, 190; begins enforcement activities 1974, 186; and legalization of its enforcement efforts, 188; closely monitored by FED/OSHA, 186; creates Monitoring Unit 1978, 188; and inspection program at San Onofre, 45. See also CAL/ OSHA asbestos inspection; CAL/OSHA inspectors; FED/ OSHA; OSHA CAL/OSHA asbestos inspection, 165 CAL/OSHA inspectors: ignorance of construction industry of, 41, 52n.70; and DCOs, 195-96, 232; and training program for, 42-43 CCP. See Cooperative Compliance Program Chemical industry: and acquisition of Builder Inc., 122; and institutionalization of Safety Management principles, 124 Citations: and pressures on CAL/ OSHA, 187-89; and company directives on OSHA inspections,

251

Index

80-82; construction unions favor only as "last resort/' 42; increasing volume of 1974-1981,190; and industrial unions' "get tough" attitude toward, 39; and penalties assessed under, 70; for trivial offenses, 191-92 Complaint policy. See Citations Compliance: and labor-management safety committee as surrogate compliance mechanism, 108; promoted by Labor Representative, 146; promoted by Management Representative, 151-52; and "voluntary compliance," 158- 63. See also Indigenous regulation Compliance officers. See CAL/ OSHA inspectors; Designated Compliance Officers Construction industry; authority relations in, 99-101, 197-99; craft administration in, 197-98; and craft rivalry, 148-49; employment patterns and labormanagement cooperation in, 27-28; high injury rate in, 138; "shortcuts" in, 199-200; special regulatory problems in, 137-38; and subcontractor problem, 196-99. See also Construction unions Construction Safety Act, 35 Construction site superintendents: and traditional authority relations at job site, 99-101; and dual supervision, 101-03; and relations with subcontractors, 197-99 Construction unions: cooperation emphasized by regulatory ideology of, 29, 35; symbiotic relationship with employers of, 27-28, 35; opposition to environmentalism of, 34, 51n.46; 1970s as transition period for, 29; fear of nonunion competition of, 28-29; disillusionment with OSHA's "get tough" enforcement stance, 41-42, 45; agenda

for regulatory reform of, 42; favor regulatory relief for business, 36-37, 45; endorse selfregulation at San Onofre, 45; voluntarism and traditional hostility to federal intervention, 34 Constructor Ltd.: origins of safety department of, 57; professionalization of safety department of, 94-95; and introduction of regional safety managers, 102, 128n.25; and Safety Marshal Program, 119-20; and dual supervision of construction site safety, 101-03. See also Builder Inc.; Construction industry Cooperative Compliance Program (CCP): and accident rates at CCP projects, 2 - 3 ; place of in CAL/ OSHA's chain of command, 221n.38; and escape clause, 2; and changing attitude toward of FED/OSHA, 46-47; as prototype for flexible enforcement and mandated partial self-regulation, 1112; and job site characteristics, 2; origins of, 1 - 2 ; distinguished from other regulatory contexts, 236; as a departure from traditional regulatory strategy, 13, 195; as "success story," 2,233-34; and Building and Construction Trades Training Program, 4 2 - 4 3 Cooperative regulatory enforcement, 178-82; and problem of lax enforcement, 180-83. See also Flexible regulatory enforcement Corporate safety manuals: and initial policy of full cooperation, 6 0 - 62; and later policy of limited cooperation, 67-68, 80-82. See also Corporate safety programs Corporate safety programs: as indigenous regulatory factor, 125; and managerial participation, 119-20; and weekly safety inspections, 120; and annual reviews of supervisors' safety performance, 121, 124. See also Corporate safety manuals

252

Index

Craft administration: as a corollary of strong craft consciousness, 197-98; and subcontractor problem, 197-99. See also Construction industry Craft rivalry, 148-49, 164,167 Cress well, T. J., 105

ments, 56-58; promoted by Safety Management, 92, 105-08; Stone on, 108-09 Environmentalism: construction unions oppose, 34, 51n.46; and origins of OSHA, 3 2 - 3 4 Escape clause, 2

DCOs. See Designated Compliance Officers Dean, John, 246 Delegalization. See Legalization and delegalization Designated Compliance Officers (DCOs): insulated from administrative pressures to "build a case," 195, 205; and consciousness raising, 209-11; construction industry experience of, 195-96; as consultants, 205-14, 216; and dangers of cooptation, 236; as enforcers, 196-205; and "hard cases," 154-71; and hazard recognition training, 206-09; high cost of, 234; insider status of, 212; and regulatory guidance, 211; and "shortcuts," 199-200; and subcontractor problem, 196-99; as technical advisers, 214-18. See also CAL/OSHA inspectors DiMento, J. F., 24 DIS. See Division of Industrial Safety Diver, Colin, 211 Division of Industrial Safety (DIS): cooperative approach of, 180-81; and problem of lax enforcement, 181-82 Dual supervision: at construction sites, 101-03; Selznick on, 104

FED/OSHA: and accompanied visit, 186-87; and case file review, 187; closely monitors CAL/ OSHA, 186; critical of "reluctant cop" syndrome, 187; and spot check monitoring, 187. See also CAL/OSHA; OSHA Flexible regulatory enforcement, 175- 223; and CCP as paradigm of, 12, 235; and DCOs, 175-77, 195; and labor-management safety committee, 154; and mismatch between regulatory tools and regulatory problems, 137, 238; and future direction of OSHA, 240; as alternative regulatory strategy, 12-13; and responsive law, 234

Enforcement. See Regulatory enforcement styles and separate listings under Cooperative, Flexible, Legalistic, and Punitive Enterprise responsibility, 230-33; distinguished from accountability, 112—14; and internal compliance systems, 108-12; and development of safety depart-

Galanter, Marc, 7, 8 Geertz, Clifford, 6 Georgene, Robert (President of Building and Construction Trades), 51n.46 Geunther, George (OSHA Chief), 38 Haggerty, C. J. (President of Building and Construction Trades), 35 Harvard Occupational Health Program, 11 Hazard abatement, 151-52. See also Accident prevention Hazard recognition training, 206-09. See also Accident prevention Heinrich, H. W„ 90 Hintze, Otto, 4 4 - 4 5 Hodgson, James (Secretary of Labor), 37 Holmes, Oliver Wendell, Jr., 183 Hughes, Everett C„ 8 9 - 9 0

253

Index

Ideology: Bendix on, 23, 31; Hintz on, 4 4 - 4 5 . See also Regulatory ideology Implementation, and CCP as "success story," 2, 2 3 3 - 3 4 Indiana University of Pennsylvania, 89 Indigenous regulation: importance of, 125; multiple sources of, 229; and OSHA as organizational mandate for, 5 8 - 6 2 ; and internalization of regulatory standards, 70-71. See also Voluntary compliance Industrial Accident Prevention: A Scientific Approach (Heinrich), 90 Industrial unions: favor administrative centralization, 3 8 - 39; oppose consultative role for OSHA, 39; impact of environmental movement on, 3 2 - 3 3 ; favor federal intervention, 31-32; urge "get tough" enforcement policy, 40, 45; roots in New Deal labor militancy, 32; as OSHA's major political constituency, 26, 46, 185; take punitive approach to occupational safety regulation, 26, 185-86; political access declines under Reagan administration, 185; oppose self-regulation, 31. See also Construction unions Information, distinguished from data, 116 Inspections, company directives on, 8 0 - 8 2 . See also Citations; Productivity; Voluntary compliance Internal compliance, 108,154. See also Compliance; Enterprise responsibility; Indigenous regulation; Voluntary compliance Interviewing techniques, 241-47 Job site supervisors. See Construction site superintendents Jurisprudence: and Nonet and Selznick's model of law-insociety, 14-15; as a perspective on regulatory policy, 13-17

Kagan, R. Α., 7, 212 Kelman, Steven, 25 Labor-Management Safety Committee, 134- 74; slow development of in construction industry, 136-37; high perceived effectiveness of, 138, 145, 154,168; and limitations of self-regulation in "hard cases," 154-71; Labor Representative on, 141-49; Management Representative on, 150-54; and conflicting regulatory imperatives, 154-55; as a regulatory reform strategy, 136-37; as a regulatory tool, 138; and responsive law, 135; at San Onofre, 45, 47; causes of worker resistance to, 139-41; overcoming worker resistance to, 1 4 2 - 4 3 , 1 4 5 - 4 6 , 1 5 4 Labor Representative, 141-49; background and appointment of, 141; as communication channel, 141-46; promotes compliance, 146-48; and craft rivalry, 148-49; perceived effectiveness of, 14546, 154; and hazard abatement, 146; insider status of compared to safety engineers, 146, 148. See also Labor-Management Safety Committee Law and Society in Transition (Nonet and Selznick), 14 Lax enforcement, 181-82; and dangers of cooptation, 236 Legalistic regulatory enforcement style: and CAL/OSHA's legalization, 184-93; and "legalism," 191-93; as OSHA's traditional regulatory stance, 13; problem of, 189-91. See also Punitive regulatory enforcement; Regulatory enforcement styles Legalization and delegalization: and CAL/OSHA's legalization, 184-93; changing dynamics of since 1960s, 4; and "legalism," 191-93; and OSHA's traditional regulatory stance, 13; and problem of legalistic enforcement, 189-91

254

Index

Legal pluralism, 7. See also Regulatory pluralism Legal positivism, 7 Management Representative, 15054; fosters high perceived effectiveness, 154; promotes hazard abatement, 151-52; possesses more influence than safety engineers, 150, 153. See also LaborManagement Safety Committee Mandated self-regulation: and CCP as example of mandated partial self-regulation, 11-12; distinguished from direct government regulation, 9-10; based on labormanagement cooperation, 136; partial distinguished from full, 10-12; as a regulatory reform strategy, 9-12. See also Regulation Marshall, Ray (Secretary of Labor), 47 Models of law-in-society, 14. See also Autonomous law; Repressive law; Responsive law; Nonet, Phillipe Mommsen, Theodore, 65, 203 Moore, S. F., 30 National Commission on Workmen's Compensation Laws, 7 4 - 75. See also Workers' Compensation National Constructors Association (NCA): enters "National Work Rules Agreement" with construction unions, 29; as spearhead of professionalization, 128-29n.31; and San Onofre self-inspection project, 45; and Building Trades and Construction Training Program, 43 National Safety Council, 87 National Work Rules Agreement, 29 NCA. See National Constructors Association New Federalism, OSH Act as Nixon Administration showcase for, 38. See also State plans under OSHA

Nixon Administration: and OSH Act as showcase for New Federalism, 38; pushes state plans under OSHA, 185 Nonet, Phillipe, and Nonet and Selznick's model of law-insociety, 14-16,182,191, 239 Nonunion competition, 28-29. See also Construction unions Occupational safety: distinguished as regulatory problem from environmental protection and consumer safety, 238; factors promoting institutionalization of, 231; fostered by professionalization of safety departments, 94-101 Occupational Safety and Health Administration. See OSHA Organized labor, ideological orientation of distorted by unionbusiness conflict model, 4 - 5 , 22, 48. See also Construction unions; Industrial unions OSHA (Occupational Safety and Health Administration): and changing authority patterns in workplace, 66-72; and role of Eula Bingham, 46-47; depicted as "horrendous threat," 59, 62, 226; industrial unions as political base of, 26, 46, 185; declining influence as enforcement agency, 66-70; increasing influence as source of authoritative rules, 70-71; and "informal conference," 69; evolution of legalistic enforcement style of, 10,13, 37-41; regulatory impact of, 6; state plans under, 38, 142, 185; and union-business conflict model, 5, 22, 30, 48; and initial emphasis on voluntary compliance, 38; as organizational mandate for voluntary compliance, 58-62; and reform of workers' compensation system, 74, 79. See also CAL/OSHA; Cooperative Compliance Program; FED/OSHA; OSH Act OSH Act: and increasing authority

255

Index

of safety departments, 63-65; penalties under, 58, 70. See also OSHA OSHA inspections. See Citations; Inspections OSHA/Inspectors. See CAL/OSHA inspectors; DCOs OSHA regulations: and administrative interpretations by DCO, 161-62; enforcement in "hard cases," 154-71; where enforcement recommended but not required, 157-61. See also Citations; Inspections; OSHA; OSH Act OSHA regulatory strategy: and traditional "legalistic" stance, 10, 13, 37-41; and conflicting regulatory imperatives, 154- 55. See also Regulatory enforcement styles Participation by management: and Builder Inc.'s weekly safety inspections, 120; and Constructor Ltd.'s Safety Marshal Program, 119; and role of Management Representative, 150-54; and professional challenge, 106-08 Participation by workers: causes of resistance to, 139-41; role of Labor Representative in overcoming resistance to, 141-49 Pope, W. C , 105 Productivity, reduced by OSHA inspections, 54n.79 Professionalism/professionalization: promoted by ASSE, 89-90, 93; Hughes on, 89-90; as challenge for management, 106- 08; spearheaded by NC A, 12829n.31; and institutionalization of occupational safety, 94; and OSHA's encouragement of professional autonomy, 103-05; and professional competence in safety departments, 94-98; and professionalization of safety departments, 93-94; and professional norms among safety engineers, 25, 43-44; and the professional safety movement, 87-93; and Safety Management,

86. See also Safety departments; Safety engineers Professionalization. See Professionalism/professionalization Professional safety movement, 87-93 Punitive regulatory enforcement, 183; and the punitive model, 183-84. See also Legalistic regulatory enforcement; Regulatory enforcement styles Reagan Administration, 185 Regional safety managers, 102, 128 n. 25 Regulation: as communication process, 226-28; contrasting positivist and pluralist perspectives on, 7; public compared to private, 6 - 8 . See also Regulatory enforcement styles; Regulatory ideology; Regulatory impact; Regulatory reform Regulatory effectiveness: See Regulatory impact Regulatory enforcement styles, 12-13; and CCP as a departure for OSHA, 13; and OSHA's declining influence as an enforcement agency, 6 6 - 70; and evolution of OSHA's "legalistic" style, 10, 13, 37-41; and Nonet and Selznick's model of law-insociety, 14-15; and conflicting regulatory imperatives, 154- 55; and OSHA's initial emphasis on voluntary compliance, 3 7 - 38. See also separate listings under Cooperative, Flexible, Legalistic, and Punitive Regulatory ideology, 24-26; and origins of CCP, 43-44; of construction unions, 41-43; of industrial unions, 37-41; and organized labor, 2 5 - 26; sources in professional norms, 25, 4 3 44; and regulatory reform, 4, 37-43; and self-regulation, 3 0 - 37; and social foundations of, 26-30; theoretical perspectives on, 23-26. See also Ideology Regulatory impact, 5 - 8 ; and acci-

256

Index

Regulatory impact (continued) dent statistics, 6; and citations and penalties, 58, 70, 190; and perceived effectiveness, 138, 154; and response of private institutions, 6; and reduced productivity, 54n.79 Regulatory pluralism, 224-30. See also Legal pluralism Regulatory reform: and origins of CCP, 43-45; and industrial selfregulation, 30-37; OSHA's reaction to, 45-47; and regulatory ideology, 3 - 5 , 23-26, 37-43; and safety committee as strategy for, 136-38; and alternative stretegies for, 8 - 1 2 Regulatory research strategy: methods used in study, 241-47; Wilson on, 3 - 4 , 8 Repressive law, 14 Research methods used in study, 241-47 Responsive law: in relation to CCP, 15,17; and flexible enforcement, 234-40; and lax enforcement, 182; and Nonet and Selznick's model of law-in-society, 14,135, 182, 239. See also Autonomous law Reuther, Walter (President of UAW), 32 Robinson, Michael, 117 Safety departments: adoption of defensive stance toward OSHA, 67, 80-82; and dual supervision of construction sites, 101-03; and organizational mandate provided by OSHA, 56-62; origins of, 57; professionalization of, 94-99; and internalization of regulatory standards, 71; and initial emphasis on voluntary compliance, 58-61. See also Safety engineers Safety Education Movement, 90-91 Safety engineers: traditional subordination to construction site superintendents, 57, 99-101; and emergence of dual supervision, 101-03; lacking "insider status"

of Labor Representative, 146, 148-49 lacking "clout" of Management Representative, 150, 153; professional competence and autonomy among, 94-99; professional norms among, 25, 43-44; rising salaries of, 12728 n.24; and problems with subcontractors, 200; as systems evaluators, 91. See also Safety departments Safety Management, 90-93; in chemical and aerospace industries, 124; and enterprise responsibility, 92, 105-06; and professional norms among safety engineers, 4 3 - 4 4 , 86; differences with safety education movement, 90-91. See also Accident prevention; Professionalism/ Professionalization Safety Marshal Program, 119-20 Safety movement. See Professional safety movement San Onofre Nuclear Power Project, 45, 47 Scholz, John, 195 Self-regulation: "hard cases" and limits of, 154-71; mandated and voluntary distinguished, 9-10; and regulatory reform, 30-37; at San Onofre, 45, 47. See also Mandated self-regulation; Regulation Selznick, Philip: on dual supervision, 04; and Nonet and Selznick's model of law-in-society, 14-16, 135, 182, 191, 239 Sheehan, Jack (USW official), 31 State plans under OSHA: construction unions favor, 42; industrial unions oppose, 38, 185; pushed by Nixon Administration, 185 Stone, Christopher, 108- 09, 111 Subcontractors: and craft administration, 197-98; and DCO's authority over, 201-05; as a problem, 196-205; and safety engineer's authority over, 200-01; and "shortcuts," 199-200 Supervisors. See Construction site superintendents

257

Index

Target Industries Program, 39 Taylor, George (Director of AFLCIO Department of Occupational Safety and Health), 37, 39, 40 Training program. See AFL-CIO Building and Construction Trades Training Program Union-Business conflict: and origins of CCP, 23; and "industrial warfare model," 48; and prevailing view of regulatory politics at OSHA, 4 - 5 , 22 United Auto Workers (UAW), 33, 40 United Steel Workers (USW), 31, 33-34, 39 Voluntary compliance: adoption of a defensive stance toward, 67, 80-82; OSH Act as an organizational mandate for, 58-61; safety departments as monitors of, 63. See also Compliance; Indigenous regulation Voluntary Protection Program: announced by OSHA, 1; as departure from OSHA's traditional regulatory stance, 13. See also Cooperative Compliance Program

Voluntary safety movement. See Professional safety movement; Self-regulation; Voluntary compliance Webb, Eugene J., 245 Wegman, David, 11 Wharton, Hunter (President of Building and Construction Trades), 35 Whyte, William Foote, 246 Wilson, James Q.: and organizational bias, 194; and professional norms, 25; on regulatory research strategies, 3 - 4 , 8 Woodcock, Leonard (President of UAW), 40 Workers' compensation: and cost increases in California, 7 5 - 76; and cost internalization by NCA companies, 78-80; and Experience Modification Rate (EMR), 7 7 - 78; and indirect or hidden costs, 116-18,131 n.49; and National Commission on Workmen's Compensation Laws, 74-75; and OSHA's role in reform of, 72-80; evolution of as a regulatory mechanism, 74; as a safety management tool, 114-16