Edwin G. Foulke, Jr.: The man who would be OSHA secretary.

On September 15, 2005, President Bush nominated Edwin G. Foulke, Jr. to succeed John Henshaw as Assistant Secretary of Labor for Occupational Safety and Health. Foulke is a Republican lawyer and former head of the Occupational Safety and Health Review Commission (OSHRC). Reaction to Foulke's appointment has been predictable. Critics have characterized it as a cynical fox-over-the-chicken coop appointment; supporters of the Administration claim that Foulke is an ideal choice, an insider who knows the OSHA laws and a conservative who will rein in the agency's excesses.

I'm not here to tell you whether Foulke will make a "good" OSHA leader. But what I can tell you is who Foulke is, what he's done and whether he's qualified to lead the agency.

His Politics

There's no getting around the fact that Foulke is a conservative Republican.

He was very active in the Bush campaign and served as a "Pioneer" - an individual pledged to raise $100,000 to support the President's re-election.

Foulke is currently a partner with Jackson, Lewis LLP, a law firm with a prominent labor practice. Critics have called Jackson Lewis a "union buster." This is nonsense. Yes, the firm represents management in labor matters. But so do most of the large labor law firms in the U.S. Having management as a client is not union busting. It's legitimate labor law practice. Calling Foulke a union buster is even more ridiculous when you consider that he isn't even part of the firm's labor practice; his specialty is workplace safety compliance.

His Credentials

Not even Foulke's critics dispute his qualifications to lead OSHA. During his four-year run as chairman of OSHRC (1990-1994), Foulke decided literally hundreds of OSHA disputes. OSHRC is the body that hears appeals by employers of OSHA citations. So the man knows OSHA law and the enforcement process.

His Positions

In 2004, Foulke ran for a position on the Republican National Committee. Here's part of the biography he used to support his candidacy:

"Ed is a life-long pro-life, pro-family, social and fiscal conservative Republican. As a true Ronald Reagan Republican, he believes in limited government, lower taxes, a strong national defense and personal responsibility."

Nice rhetoric. But what does it mean in terms of practical issues? The best way to answer this question is to look at Foulke's public record on OSHA matters:

Ergonomics: Foulke opposed the OSHA ergonomics standard promulgated by the Clinton Administration and revoked by Bush before it became effective. Just before the standard was scheduled to take effect, the International Risk Management Institute published an article on it written by Foulke and his colleagues at Jackson Lewis. Most of the article is a dispassionate analysis telling employers how to comply with the standard. But at the beginning of the piece, Foulke writes that "the costs to implement the ergonomics requirements may be significant and, in some cases, result in severe financial hardship."

Voluntary Compliance: Like his predecessor, Foulke is a strong supporter of OSHA voluntary compliance efforts. For example, in 1999, Foulke testified to the Senate in favor of a bill called the SAFE Act (Security and Freedom through Encryption Act) - specifically, the provision authorizing voluntary inspections of workplaces by qualified health and safety consultants. Foulke lauded the measure "for allowing OSHA to further focus its limited enforcement resources on employers who refuse to protect their employees" and enabling OSHA to get to "worksites that it may never have had the opportunity to inspect." The SAFE Act, according to Foulke, would help foster a new and necessary "partnership" between OSHA and industry. "This [message of partnership], along with a continued effective enforcement program, is I believe, the message the government should want to send to American business owners."

Paring Back of Standards: Foulke seems to support controversial Bush initiatives to pare back administratively burdensome standards. But there's also strong evidence that, contrary to the claims of critics, he wouldn't do this at the expense of safety. This is underlined by his 2002 testimony on a bill providing for expedited review of changes in OSHA permissible exposure limits (PELs). According to Foulke, OSHA's first priority shouldn't be to revise existing PELs but to create new ones for unregulated chemicals that weren't accounted for when the original PELs were created. Revisions could take place once all the unregulated chemicals were covered, said Foulke.

Conclusion

Edwin Foulke, Jr. is a conservative Republican who supports the President and his policies. This makes him unpalatable to some people. But it doesn't disqualify him from leading OSHA. On the contrary, in our democracy, the candidate who wins the presidential election gets to appoint his supporters to government positions. This is called the "spoils system" and it dates back to President Andrew Jackson in 1833. It applies equally to Democrats and Republicans. Foulke's appointment is a perpetuation of that tradition.

The Canadian Perspective

The above story addresses an issue of U.S. politics and law. Unless you happen to have American affiliates, it's probably of little interest to you Canadian members of SafetyXChange. So here's an item just for you.

Does the Law Really Require You to Have an OHS Program?

"Every company has to have an OHS program."

This statement has become almost a cliche, something people in the safety profession like to say. But is it really true, at least as a matter of law? OHS programs cost a lot of money and effort. If your CEO were to ask you to point to the specific law that says your company has to have an OHS program, would you be prepared to call the bluff?

The Law of OHS Programs

The good news is that the law really does require companies to have an OHS program. The bad news is that, at least in some provinces, demonstrating this isn't as straightforward as you might think. Here are the three sources of the legal obligation to have an OHS program:

1. The Provincial OHS Laws

The best way to answer your CEO is to point out that your province's OHS law specifically says all employers must implement an OHS program. But only four jurisdictions - ON, QC, SK and the federal jurisdiction - actually say this. In eight provinces and territories, the obligation to have an OHS program depends on the size of the workforce and/or industry. And two provinces - AB and NB - don't specifically require any employers to have a program unless the government directly orders them to.

2. Due Diligence

If you're not from one of the mandatory provinces, the obligation to have an OHS program is based not on statute but case law. More precisely, it stems from the due diligence obligation to take all reasonable measures to comply with OHS laws and prevent accidents. In the famous Sault Ste. Marie case that created the due diligence defence, the Canadian Supreme Court made it clear that companies must have a "proper system to prevent commission of the offence" to make out a due diligence defence. "Proper system" means a formal OHS program, according to subsequent court rulings.

3. C-45

The third source of the obligation to have an OHS program is the criminal law and especially Bill C-45. Although it doesn't specifically mention OHS programs, C-45 requires those who control work to take "reasonable steps" to guard against risks and makes it a crime - criminal negligence - to neglect this duty out of "wanton or reckless" disregard for safety. The failure to implement an OHS program would be strong evidence of wanton and reckless disregard that could be used to prosecute a company under C-45.

EDITOR'S NOTE

For a more complete analysis of this issue, see this month's (March 06) issue of the newsletter Safety Compliance Insider (SCI). To find out more, click here.

THIS DATE IN HISTORY

February 6, 1933

Lt. Frederick Marggraff standing watch aboard the U.S. navy tanker U.S.S. Ramapo, observes the largest non-tsunami sea wave recorded in history, 112 feet (34 meters), in a Pacific storm off the coast of Manila.

Story Tools:  Email This Post  Print This Post Top