Topper Thompson: Both Sides Now

A bit of amusing news from this week's Inside OSHA (paid subscription). Industry attorney Topper Thompson has been nominated for the open seat on the Occupational Safety and Health Review Commission. Thompson has a reputation for representing some of the worst of the worst, including the Avondale Shipyards in a decade long battle with the union that included some ugly workplace deaths and injuries.

Because Thompson would make the second business representative on the three member panel that decides appeals of OSHA citations, Senator Edward Kennedy (D-MA) has put a hold on his nomination so that he and Senator Patty Murray (D-WA), have the opportunity to ask a number of additional questions.

In response to one question, Thompson argued that OSHA should issue more standards and stop relying so much on the General Duty Clause, which OSHA can use when no standard applies. (The problem is that General Duty Clause citations are difficult to defend and are generally used only after an incident):

A second challenge [facing American workers today] is to create a more workable process to update safety and health standards in order to provide OSHA with a feasible alternative to excessive application of the General Duty Clause to address changes in our recognition of the nature of hazards. Long and drawn out litigation challenging new or revised standards has often frustrated efforts by the agency to update standards.

Well, that's surprisingly good news coming from the nominee of an administration that has issued only one major standard (under court order), repealed the ergonomics standard, and then broke its promise to use the General Duty Clause to cite employers whose workers suffer from musculoskeletal disorders. Over the past five years, the Bush administration has issued only 17 General Duty Citations related to ergonomics, the biggest cause of injuries and illnesses for American workers.

But hold the celebration, not so fast:

While Thompson says OSHA should update its standards instead of relying on General Duty Clause citations, when it comes to ergonomics he has a different viewpoint. He says that ergonomic injuries are real injuries but stops short of calling for a special ergonomics standard. “I believe the General Duty Clause can properly be applied to address a situation where an employer recognizes but fails to address a pattern of injuries by applying feasible engineering or administrative controls to reduce ergonomic risk factors,” Thompson wrote.

Oh well, now back to our regularly scheduled programming....