Mr. CONYERS. We want to thank you very much. We wanted to get apparently a lot of legal opinions from nonlawyers on the record this morning, so we have had our sampling.

Mr. SWEENEY. Thank you again.

Mr. CONYERS. We appreciate both of your reactions to the number of technical questions, and we think that your concern and continued surveillance of this legislation as it moves through the processes will be very helpful.

Again our thanks for your appearing before the subcommittee. Mr. SWEENEY. Thank you, Mr. Chairman.

Mr. CONYERS. Our next witness is the director of the Department of Occupational Safety and Health of AFL-CIO, Mr. George H.R. Taylor, a graduate of the University of Virginia.

He is presently chairman of the staff subcommittee on occupational safety and health and is executive secretary of the standing committee on occupational safety and health, and the committee on atomic energy and natural resources.

He is chairman of the bureau of labor standards technical advisory committee on occupational safety and health, and a national advisory committee member.

He is also a member of the Federal Advisory Council on Occupational Safety and Health and, as you can see, he is very well keyed into the major committees nationally on this very important subject.

He is joined by our old friend, the legislative representative of the AFL-CIO, Mr. Kenneth A. Meiklejohn.

We have your prepared statement, Mr. Taylor, which will be incorporated in its entirety, and we welcome you before the Subcommittee on Crime.

[Mr. Taylor's statement follows:]

PREPARED Statement by GEORGE H. R. Taylor, Director, Department OF OCCUPATIONAL SAFETY AND HEALTH, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

On behalf of the American Federation of Labor and Congress of Industrial Organizations, I wish to convey the strong support of organized labor for the principles embodied in H.R. 4973. This legislation would establish criminal penalties for certain corporate officials who knowingly conceal product or manufacturing process hazards information from their employees or from the public.

We strongly believe that the principles of accountability and honesty should be as applicable to business enterprises and the management authorities of such enterprise, whose acts of omission or cover-up may cause death or illnesses to innocent, unknowing people, as they are now applicable to individuals who engage in or tolerate various felonious acts defined in our criminal laws.

Too many corporate acts of omission and concealment have come to light in the past several years. The basic question has at least been raised concerning corporate morality. This, in turn, raises an even more basic question as to how long dollars continue to be more important than the lives and health of people in our society. At present, decisions within a corporation have resulted in millions of American working men and women being needlessly exposed to a wide-range of toxic materials-from asbestos to vinyl chlorides. Environments have been polluted by the dumping of hazardous chemicals in waste sites all over the nation.

Efforts by the Occupational Safety and Health Administration to enforce the law, even when large civil assessments are imposed, do not go beyond imposing fines on an impersonal entity-the corporation itself-and not on individual decision-makers for their accountable actions, which resulted in violations of the Act.

We believe that H.R. 4973 can provide two major benefits:

1. Encourage business enterprises and corporate managers to do the right thing by imposing upon them the disincentive of possible criminal action.

2. Stimulate corporate managers to take personal responsibility for achieving and maintaining safe workplaces, and surrounding environment, without the need of having it always imposed by government regulatory intervention.

It is depressing to realize that the issue addressed by H.R. 4973 is as old as the industrial revolution-the headlong drive of employers for profits without adequate regard for the effect on society from the undesirable side effects of industrial and technological development.

In 1854, Charles Dickens wrote in his novel, “Hard Times,” about this mentality among industrialists in the English Midlands-a mentality which persists to this very day:

"Whenever a Coketowner felt he was ill-used-that is to say whenever he wasn't left entirely alone, and it was proposed to hold him accountable for his acts-he was sure to come out with the awful menace that he would 'sooner pitch his property into the Atlantic.' This had terrified the Home Secretary within an inch of his life on several occasions.

"However, the Coketowners were so patriotic, after all, they had never pitched their property into the Atlantic, yet, but on the contrary, had been kind enough to take mighty good care of it, so there it was in the haze yonder, and it increased and multiplied.'

Another attitude, but similar, in its happy irresponsibility was conveyed in a letter dated September 12, 1977, to Dr. Eula Bingham, of OSHA, by a Robert A. Phillips, Executive Director of the National Peach Council. This letter was written to protest joint action by EPA, OSHA and the Food and Drug Administration restricting exposure of workers to the chemical pesticide, dibromochloropropane (DBCP) after is has been shown that it can cause human sterility.

The modest suggestion that there was a bright side to the problem was set forth by Mr. Phillips' letter, in this fashion:

"If possible sterility is the main objection, couldn't workers who were old enough that they no longer wanted to have children accept such positions voluntarily: Or could workers be advised of the situation, and some might volunteer for such work (sic) posts as an alternative to planned surgery for a vasectomy or tubal ligation, or as a means of getting around religious bans on birth control when they want no more children.

"We do believe in safety in the workplace but there can be good as well as bad sides to a situation."

While we believe that H.R. 4973 can have the beneficial effect, wish to present a few suggestions for its improvement which we hope merit consideration by this subcommittee.

1. Applying the penalty solely to an "appropriate manager" as defined in the bill, or to the corporation as an entity, without naming names of co-defendants, would allow managers, directors or supervisors to escape personal responsibility, whereever criminal intent can be shown. This range of possible defendants could include, with lesser penalties, outside consultants, engineering and testing laboratories which perform jobs for corporate management in assessing and defining safety and health data. Individual responsibility should also be assigned to supervisors who cut corners in design and prosecution of construction projects, as well as in the process in fixed site workplaces.

2. Some scale of penalties should be developed from knowing acts of concealment, and those which involve distortion of information or gross negligence.

3. Requirement that there should be a warning by the company management to the public, as well as to affected workers, on discovery of a serious danger involved. This is necessary, not only to protect individuals in the ambient environment outside the workplaces but to prevent dumping hazardous materials on other countries without adequate disclosure of the risks involved.

4. Protection of "whistle blowers"-those who warn regardless of a corporate policy of non-disclosure-from the threat of management discrimination in response to such actions.

5. Providing access for victims of concealment who may file civil suits against the corporation to the full range of evidence collected by federal investigators in white collar crime prosections.

The time has long since gone by when business enterprises and corporate managers can legitimately claim freedom from responsibility for serious dangers associated with their workplace practices or with the lethal defects in products, or components of such products, which they place upon the market. Our economy is characterized, to much too great an extent, by preventable workplace hazards and by products and business practices threatening death or serious bodily injury, for this to be permitted any longer. H.R. 4973 would, if enacted into law, represent a significant step in the direction of holding business enterprises and corporate managers responsible for

dangerous products they put on the market, unhealthy and hazardous business practices in which they engage, and the effects of their activities upon the evironment, and we strongly urge its approval by the Congress.

TESTIMONY OF GEORGE TAYLOR, DIRECTOR, DEPARTMENT OF OCCUPATIONAL SAFETY AND HEALTH, AFL-CIO, ACCOMPANIED BY KENNETH A. MEIKLEJOHN, LEGISLATIVE REPRESENTATIVE, AFL-CIO

Mr. TAYLOR. To save you all time, I would be happy to yield to any questions that you might have.

Mr. CONYERS. Let me ask you if there are portions of the bill that could be strengthened?

Have you had a chance to review any possible modifications we might want to look into?

Mr. TAYLOR. Mr. Chairman, our statement on page 3 indicates five possible changes in the bill which in our opinion might strengthen it.

They consist of applying penalties for the criminal acts to codefendants in addition to an appropriate manager which is only vaguely defined in the definition section of the act.

Some decisions are not always made by just one person. Sometimes there is a combination of decisions which result in an undesirable result, withholding of information or some other violation of the provisions of this act.

We also propose enlarging that to cover situations where corporation employees, outside consultants, R. & D. operations, do come up with information which would, if released from the corporation to workers, inform them of something which, if they were not informed could result in something bad happening to them from exposure to a toxic material, for example: on page 3 of our statement, we request that the committee consider enlarging the definition in that fashion.

Also with the old principle, on page 4, of letting the penalty fit the crime, there are acts which might be committed by corporate personnel which were not the key acts for which they were solely responsible but an element of it. The penalties for such individuals, if convicted, should be less than for the ones who had the prime responsibility.

I don't believe everyone should suffer equally if they were not actually into the act as deeply as the higher-up, the scale management people.

Mr. CONYERS. Wouldn't the court in a prosecution sort out the relative liabilities?

Mr. TAYLOR. Well, that is conceivable. Now, I am not an expert on criminal law and perhaps Kenny Meiklejohn would be better equipped to respond to that part of the question than I would because I am an amateur in that.

Mr. MEIKLEJOHN. I am not the greatest expert either, Mr. Chairman, but I would think that, yes, it is possible the court would be able to sort that out, but I think Mr. Taylor's suggestion is still a necessary one.

Mr. CONYERS. OK.

Mr. TAYLOR. Our third recommendation at the top of page 4, if there is a situation which would deal with an occupational risk to people in the plant which might spill from the plant to the sur

rounding environment, and people, like the Love Canal situation. It should be incumbent upon the corporation which had such information affecting people outside the plant to provide public notice to those people so they would have appropriate warning.

The fourth proposal we have is the whistleblower protection. There are people who do in a sense violate the rules of the corporation and do go public when they can't get the corporation itself to do what they think is necessary; so there should be protection for whistleblowers. I might suggest that you look at the OSHA Act in section 11(C)(1) which does protect workers from discrimination on management for legally participating in the OSHA Act.

You might want to provide some sort of protective language. The last proposal is in the event that, say, you are a family living outside of the plant or even family living inside the plant, and one of your members or more have been injured by the concealment policy which results in a kind of situation that this act is trying to cover.

The only way that you really can reason something of what they lose is by means of filing civil suits and, if so, we believe that you and your lawyer should get all evidence available in any kind of white-collar suit that rises from that situation.

Those are the five recommendations that we did make to strengthen the act for your consideration.

Mr. CONYERS. Well, those are all important points, some of which have been raised, some have not, and we are very grateful for your additional comments thereto.

Does counsel have any questions?

Mr. RAIKIN. Just one, Mr. Chairman.

Have the AFL-CIO and affiliates, member unions in your various departments experienced many situations where employers evidently or allegedly concealed hazardous conditions from their workers?

We have heard from the two unions preceding you this morning, the Teamsters and the United Mine Workers, that that has been the case in their experience.

Mr. TAYLOR. This is true. In order to get something like this on the record, and I think you should have something more definite, I am speaking off the top of my head. If the chairman would think this would be helpful, I was in a meeting yesterday with some representatives from the Oil Chemical & Atomic Workers Union over the situation at one of the plants under contract with that union.

OCAW is attempting to get access to information concerning toxic materials and, if you would like, I can get a few of those instances and submit them as a later subject.

Mr. CONYERS. It would be very helpful.

Mr. TAYLOR. I don't like to spout off such things without validation.

Mr. CONYERS. I am hopeful that perhaps there can be a survey within the AFL-CIO which can bring together any of those instances and put them into one document and submit them to the subcommittee.

Mr. TAYLOR. Dr. Epstein, Barry Castleman, and others have a series of instances where withholdings have taken place-willful

concealments-and I think the record is fairly comprehensive as far as those larger instances which have hit the press and which have been discussed in this committee.

There may be a number of smaller ones that don't encompass whole corporations, but involve a local union and a local management. We have a number of those. We would be glad to try to dig them out. Providing we can get them validated so they will stand on the basis of facts, we will send them in to the committee. Mr. CONYERS. Any further questions of counsel?

We want to thank you very much, both of you, for joining us with very strong supportive testimony from the AFL-CIO.

We will be looking forward to any documentation that you would have.

The subcommittee will stand adjourned at this time.

[Whereupon, at 11:25 a.m. the Subcommittee on Crime of the Committee on the Judiciary adjourned.]