Foulke: I Want My Slides Back

Last month we delivered a well-deserved thumbs-down to OSHA administrator Ed Foulke's slide show ridiculing workers for "doing the dumbest darnedest things." We were later joined in our raspberries by the Washington Post.

But it seems that poor Mr. Foulke may be lost without his slide show. This was delivered to me by an attendee at the recent conference of the American Society of Safety Engineers (ASSE):

As you may know, the ASSE recently had their annual Professional Development Conference in Seattle. One speaker after lunch was the new head of OSHA, Mr. Foulke. I am afraid that a poorer speaker could not be found. He never proposed solutions for the problems that he mentioned and he "ummed" and "hawed" during the entire speech. An hour speech could have been done in thirty minutes. Many people just walked out. It was not OSHA's finest time.

Perhaps a good, but vengeful fairy has put a curse on Mr. Foulke's tongue.

Washington Post Covers OSHA Director's Speeches Ridiculing Dumb Workers

Washington Post business columnist Cindy Skrzycki covers the growing scandal at OSHA where Assistant Secretary Ed Foulke showed a bunch of photos showing workers doing some of the dumbest things you've ever seen, contrasting them with a bunch of cute "even-kids-know-better" drawings. (OK, maybe it's more of a flap than a scandal.) The story was first covered in Confined Space earlier this month.

Skrzycki hits the "killing workers is not funny" angle:

In a year when families lost loved ones in multiple mining accidents and at a BP refinery in Ohio Texas, the labor community interpreted the remarks as a slam at workers, blaming them for stupid mistakes on the job. Overall, there were close to 6,000 fatalities in 2004, the latest year available, plus 4.3 million injuries and illnesses.

And then she goes to the source:

It wasn't long before the remarks were being discussed on a widely read blog that covers labor-management issues called Confined Space.

"OSHA Director Ed Foulke Blames Workplace Carnage on Dumb Employees," read the headline, written by Jordan Barab, a former OSHA and union official.

"It's a bad tone to set when you're dealing with people dying in the workplace," said Barab, whose blog includes a weekly toll of worker fatalities. "It's, 'Look at all these stupid workers. Even the kids aren't that stupid,' " he said. "The implication is workers do stupid things."

Or, as I said in my original piece, not only do the photos imply that workers do stupid things, but they miss the main point: "What do photos represent? Workers too dumb to live, or managers too cheap to purchase or rent lifts or cranes?"

Although the article goes on to quote the AFL-CIO's Bill Kojola and the Steelworkers Mike Wright, it misses quoting the real victims of Foulke's speech: the family members of those killed on the job. For example, after reading Foulke's speech, Tammy Miser, whose brother was killed in a dust explosion in 2004 wrote this:

My first thoughts when reading "Adults Do The Darnedest Things" was what my son would have went through if this project was presented to him. He has had a tough enough time dealing with his uncle's death, let along having to draw pictures or feel his uncle was to blame for his horrendous death.

Finally, of course, Skrzycki gives the other side it's say as well (one must be evenhanded, after all). Foulke responded that he wasn't trying to offend anyone (which isn't the point -- his (mis)understanding of why accidents happen is the point.)

The association that was co-sponsoring the event also chimes in

"You had to be there for the whole thing," said Diane Hurns, spokeswoman for the ASSE. "The focus was on the kids. I don't think there was an effort to embarrass workers."

Uh, right, "I guess you had to be there...." Now where have I heard that phrase before?

And if the focus was on the kids in this speech, what was Foulke's excuse for repeating essentially the same speech a week later to a group composed solely of grown-ups?

Because he doesn't get it.

I stand my my original statement. The speech

displayed a shockingly profound lack of understanding of some of the most fundamental principles of workplace safety, combined with an astonishing insensitivity to the tragic losses that thousands of American families face each year.

One more thing. Skrzcki goes to the origin of Foulke's understanding of workplace "accidents" -- his union-busting background (also first covered in Confined Space):

When he left the [Occupational Safety and Health Review]commission, Foulke joined Jackson Lewis LLP, a South Carolina law firm, as a partner. The firm is known as a tough union buster and is advertising on its Web site a $595 seminar on "How to Stay Union Free."

Foulke Still Doesn't Get It

He did it again. While the blogosphere was buzzing about the ridiculous speech OSHA Director Ed Foulke made blaming dumb workers (who do the darnedest things!) for workplace accidents (my article here, and others here, here and here), he was down in Ponte Vedra Beach, Florida making a variation of the same speech to the Association of Georgia's Textile, Carpet and Consumer Products Manufacturers.

What's the matter with him? Doesn't he read Confined Space first thing every morning? (Everyone else at OSHA does).

I wonder if I can see a show of hands here -- How many people remember a fellow on TV back in the 1960s called Art Linkletter? He had a program called "Kids Say the Darnedest Things."

When it comes to workplace safety and health, it may be just as true that "ADULTS DO the darnedest things," as you'll see from some pictures that I have brought with me.

Taking the fifth place award for dangerous workplace practices is this fellow. It's hard to believe anyone would take a chance at injuring themselves at work by standing on one foot on an unstable ladder that is leaning against power lines - but there you are!

***

All kidding aside, workplace safety and health is a serious subject, and at OSHA we take our responsibility very seriously.

Yeah, ha, ha. Actually, Ed, if you were really taking your responsibility seriously, you'd be talking about putting managers in jail if they ever allowed anything like what was portrayed in those pictures and someone got seriously injured or killed.

Instead, the rest of the speech was the usual drivel we've come to expect from this administration: A half part enforcement and 10 parts "safety pays," Alliances and compliance assistance: read our website, order our publications and we know you'll do the right thing.

Plus, safety makes people happy :)

Let me give you something else to consider: Businesses with effective safety and health programs are the most cheerful places to work. I know this quality is hard to measure, but you know it when you see it.

And safety keeps jobs at home:

Think of it this way: In today's highly competitive global economy, when employers are looking for ways to increase their profit margin, any savings is important. In many cases, even a one percent increase in profits can mean the difference between a company succeeding here or facing the unhappy choice of shipping American jobs out of the country -- just to compete.

But I'm not talking about saving one percent. The American Society of Safety Engineers estimates that workplace injuries rob employers of 25 percent of all their pretax corporate profits. That's a tremendous impact on the bottom line.

I always like the "safety pays" argument. Makes good business sense. What always bothers me though, is what if certain safety programs decrease profits a little in the short term, which is all business seem to be interested in these days? Nevermind?

Some of the rest of the speech wasn't too bad. He sincerely sympathizes with the families of workers killed on the job:

Having been involved in numerous OSHA investigations in my career[on management's side, but who's counting?], I have seen the devastating effects that a single workplace fatality has on a wide circle of people connected to one employee.

That's good, but let me give you a tip Ed. People are more likely to think you really care if you don't ridicule them first.

OSHA Director Ed Foulke Blames Workplace Carnage On Dumb Employees

Usually, the Bush-appointed leadership of our nation's workplace safety and health agencies just make me mad. Edwin Foulke, our new Assistant Secretary of Labor for OSHA, is starting to make me sick.

Foulke, the man charged by the President of the United States with ensuring the safety of America's workers, made a speech last week entitled "Adults Do The Darndest Things" which displayed a shockingly profound lack of understanding of some of the most fundamental principles of workplace safety, combined with an astonishing insensitivity to the tragic losses that thousands of American families face each year.

The speech marked the launch of North American Occupational Safety and Health Week, also known as: "North American Blame Stupid Workers For Getting Themselves Killed Week." The highlight of the speech was a bunch of photos showing workers doing some of the dumbest things you've ever seen. In fact, you'd almost suspect some of them are staged.

These photos -- the workplace safety version of the Darwin Awards -- have been traveling around the internet for years. And yes, they're funny. I laughed the first few times someone sent them to me. But it's one thing for you or me (or even Ed Foulke) to have a chuckle when these first arrive in an e-mail, but it's quite another for the Assistant Secretary of Labor, the highest workplace health and safety position in the country, to highlight these photos to launch (what's supposed to be) a major health and safety event, sending a message out to employers across the country (there are no unions that participate in North American Occupational Safety and Health Week) that the main reason we have almost 6,000 workplace deaths (and rising) in this country every year is that "workers do the darndest things."

Take these pictures below, for example. What do the represent? Workers too dumb to live, or managers too cheap to purchase or rent lifts or cranes?


And any true safety professional (which Foulke obviously isn't), or anyone who knows anything about workplaces -- particularly construction workplaces -- (which Foulke obviously doesn't), would be asking (after the initial chuckle) "Who the hell is managing this place?" "Have these people ever been trained?" In other words, the humor fades fast.

What we're dealing with here is the same old tired "behavioral safety" theory hiding behind "funny.' Behavioral safety theories say that most workplace accidents are caused by worker carelessness or misconduct, and by disciplining workers for making mistakes, or praising them for reporting fewer injuries, accidents will cease to happen. But behavioral theories don't hold up to a closer look at the root causes of most workplace accidents: generally management system and organizational problems that lead to unsafe working conditions. Punishing (or praising) workers for fewer reported injuries may result in less reporting, but not fewer injuries. (Confined Space has covered the issue numerous times before -- Here, here, here, here, and here to name just a few)

So who's laughing at these photos? Probably not Irene Warnock or Coit Smith whose young sons were electrocuted at work. And probably not Mary Vivenzi , whose boyfriend, Kevin Noah was killed falling from Golden Gate Bridge in 2002 while working on an earthquake retrofit project, nor the families of the construction workers killed in the recent Boston scaffold collapse. And I doubt if Tammy Miser, whose brother burned to death in a combustible dust explosion, is rolling in the aisles. Nor Holly Shaw, whose husband fell from a dredging barge and drowned. No life preservers. Pretty amusing.

I know for a fact that Donna Spadaro isn't laughing because she told me. Donna's brother, Gary, fell 25 feet from a cement tower, while shoveling gravel off the hopper to clean it. He had no fall protection or training.

This pathetic attempt at humor insults the families of those killed on the job and dishonors our dead who gave their lives trying to eke out an existence in George Bush’s America, a country where corporate cronyism has replaced competence in our regulatory agencies, to the peril of our nation and its citizens.

And how did Foulke miss this photo? I'm sure Michelle Marts and Jim Walters whose son Patrick was crushed in a trench collapse, or Michelle Lewis whose stepfather was buried alive would have been quite amused, as would the family of Lorenzo Pavia, who was crushed in a trench collapse and then decapitated in the rescue attempt.

Maybe the families of the 15 BP workers who were blown to pieces and burned to death think these photos are amusing. Or the families of these workers or these or these or....

Of course, Foulke is not completely to blame. He's learning from the best. In fact, he was probably just taking a cue from his boss in the White House who showed those hilarious slides of himself looking for Weapons of Mass Destruction under furniture in the Oval Office at the 2004 White House Correspondent's Dinner. I'm sure the families of the thousands killed and wounded in Iraq are still chuckling about that one.

And OSHA isn't the only clueless agency around when it comes to blaming workers for their own injuries and deaths. Last year, the Mine Safety And Health Administration launched a campaign called "Make the Right Decision," which was supposed to be "a safety and health initiative that helps miners and mine operators focus on human factors, such as decision-making, when at work." I'm sure the families of the 12 dead Sago miners, and the other 22 miners who have died this year are mad as hell at their loved ones who must have made the "wrong decision" that got themselves killed.

One more upsetting thing. The other point of the speech was to honor kids who won a workplace safety poster contest. Foulke compared the "funny" workplace photos with the winning kids' posters to remind us

that sometimes kids are a lot smarter than adults give them credit for. These posters here on stage illustrate this clearly. Kids don't always know what their parents do all day at work, but they instinctively understand the importance of them working safely. In contrast, adults could stand to learn a thing or two.

OK, the kids are sweet and posters are cute, except that they all focus on the same "Let's be careful out there" theme. Great, so we're teaching a generation of kids to think that if their parents die in the workplace it's because they weren't being careful? OK, maybe they're too young to get the concept of root cause analysis, management systems and the difference between unsafe working conditions and unsafe behavior, but the Assistant Secretary in his 50's shouldn't be quite so ignorent.

Mary Vivenzi has a better suggestion for a poster:

Refuse the work when safety's not first

your job isn't worth coming home in a hearse.

I like it.

My idea for a winning kid's poster doesn't rhyme so nicely: I think there are thousands of families out there who deserve an apology from Mr. Foulke. And Ed, when you're done writing the letters, go take a health and safety class or two. Listen to the kids: "adults could stand to learn a thing or two."

If you'd like to send Assistant Secretary Foulke your thoughts about his speech, the phone number is (202) 693-2000 and the fax number is (202) 693-2106 or 2107. You can also mail a letter to:

Edwin Foulke
Assistant Secretary of Labor
U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration - Room: S2315
200 Constitution Avenue
Washington, D.C. 20210

Related Stories

• MSHA Makes The "Wrong Decision" To Blame Workers For Accidents, July 27, 2005
• Behavioral Safety Out of Control and The KFM Flu, April 12, 2005
• Blaming The Worker: In Texas City and On the Rails, May 18, 2005
• Bloody Pocket Syndrome in the Steel Industry, April 6, 2005
  
• Deaths and Injuries at US Steel: Blame the Workers?, February 24, 2005
• Nothing Funnier Than A Trench Collapse, November 30, 2004
  
• Behavioral Safety Comes To The Railroads, November 15, 2004
  
• So Cal Edison Screws Itself With Safety Incentive Programs, October 22, 2004
  
• Safety Bingo: Bad Behavior, October 1, 2003
• Worker Error Department (cont'd), April 14, 2003
• Worker Error Department, Part 2 April 11, 2003
• Worker Error Department, April 10, 2003

For more on union responses to Behaviour Safety in the US and worldwide, check out Hazards.

Foulke, Stickler Get Committee Approval To Head OSHA & MSHA

Signaling that they think everything's just fine in America's mines and other workplaces, Republicans on the Senate Committee on Health, Education, Labor and Pensions voted today to confirm Richard Stickler as Assistant Secretary of Labor for MSHA, and Edwin Foulke as Assistant Secretary of Labor for OSHA.

I'm don't know what the vote-count was on Foulke, but Stickler's confirmation was approved along party lines, with all of the Republicans voting in favor, and the Democrats voting against. The United Mineworkers, the AFL-CIO and the Charleston Gazette all opposed Stickler's confirmation.

The Mineworkers called the vote a "huge disappointment for all miners in America who are looking to their government to stand up for them instead of the coal companies."

"Since 2001, the coal operators have been in charge at MSHA," Roberts said, referring to Dave Lauriski, a coal company executive who was the Bush administration's first appointment to head the Mine Safety and Health Administration (MSHA). "Mr. Stickler would just be another fox guarding the henhouse.

"Career coal company managers and executives like Mr. Stickler spend their time figuring out how to get around safety rules and regulations in order to increase production," Robert said. "That's the last kind of person American coal miners need as our nation's top watchdog for safety."

Meanwhile, with Foulke at OSHA, we can expect more of the same -- emphasis on voluntary programs and not much else. Foulke is a labor relations and OSHA attorney at the Greenville, South Carolina union busting law-firm Jackson, Lewis LLP.

Inside OSHA (paid subscription) kindly provided Foulke's responses to the Democrats' written questions submitted after the hearing. (The Republicans refused to provide their questions.) Here's a sampling:

Senator Kennedy asked whether Foulke would support legislation to increase OSHA criminal penalties.

If confirmed, I would work with the DOL Solicitor to refer particularly egregious cases for criminal prosecution by the Department of Justice. I would have to review the current cases to see if the current criminal penalties need to be increased.

Translation: "When pigs fly."

Asked about steps he'll take to protect workers against the Avian Flu, Foulke responded that he'd "consult with the Centers for Disease Control, and recommend whatever actions are necessary to protect workers."

Well, considering the complicated issues involved in protecting workers, and the union petition to OSHA for a standard to protect health care workers against pandemic flu.taking "whatever actions are necessary," doesn't exactly inspire confidence.

When asked his opinion on using the General Duty Clause (Section 5(a)(1)) for ergonomics problems, considering that OSHA has only issued 17 ergonomics citations since the administration repealed the ergonomics standard in 2001, Foulke explained that he "will continue to cite employers for ergonomic hazards where action is warranted and the OSH Act Section 5(a)(1) criteria can be met." (emphasis added)

Senator Bingaman asked if there were any legislative reforms he would like to pursue that would help to improve OSHA’s enforcement record? In your dreams: "I believe OSHA’s legal authority is adequate to fulfill its mission of protecting the health and safety of American workers."

How's this for wishy, washy? Asked by Senator Patty Murray (D-WA) whether he would "support the release of a Personal Protective Equipment rule that says employers should pay for protective clothing for their workers while on the job?"

If I am confirmed, I will examine the agency’s efforts to protect Hispanic workers, and make any changes I feel are needed. I would also note that OSHA regulations in general require employers to ensure that employers assess the nature of hazards their employees face and ensure their employees are using appropriate PPE to protect them from those hazards. Many OSHA standards require the use of specific PPE in specific situations.

I am aware that OSHA is considering a PPE requirement. If I am confirmed,
I will review the rulemaking record on this proposal.

And finally, Senator Patty Murray asked him if he thought that perhaps increased inspections or enforcement were called for to address the $1 billion a week that we are spending as a nation on workplace deaths and injuries.

Not exactly,

We must vigorously enforce the law. We must inculcate a “culture of safety” among employers through outreach, education, and technical assistance efforts. In addition, we must continue to reach out to workers themselves.

Yeah, culture of safety and a maybe a little jail time....

In his defense, Foulke did commit to "do everything in my power to prevent the use of safety-related 'sting' operations" support the updating of OSHA's antiquated chemical permissible exposure limits, and that he would continue to use OSHA's egregious policy to generate high fines "when appropriate." OSHA's "egregious policy" had come under attack by the OSHA Review Commission and the business community.

The full Senate must now vote on the two nominations. The vote has not been scheduled.

Confirmation Hearings on MSHA and OSHA Heads

The Senate Senate Health, Education, Labor and Pensions (HELP) Committee held a confirmation hearing yesterday on the appointments of Ed Foulke as head of OSHA and Richard Stickler as head of MSHA.

Because of the vote on the Supreme Court appointment of Sam Alito, both nominees appeared on the same panel, a gift to Foulke who received many fewer questions than Stickler in the aftermath of the never-ending fatalities in American mines.

Foulke, an attorney for union-busting South Carolina lawfirm of Jackson Lewis is the consumate politician. He knew exactly what committee chairman Enzi wanted to hear when asked what he thought OSHA's biggest challenge is:

“getting information and tools to small employers without the resources and personnel” to create and maintain a workplace safety plan. These employers, in particular, need outreach education and effective guidance on how to comply with the standards that apply to them, he said.

Right. Almost 6,000 American workers killed in the workplace each year, rising fatalities among immigrant workers, 30 year old chemical standards, workers killed every week in easily preventable trench collapses and falls, 15 workers killed in a BP Amoco refiner blast earlier this year, fines and penalties that make it hardly sensible to fix workplace safety problems, and OSHA's biggest challenge is "getting tools to small employers?"

Yeah, only if the chairman of your confirmation committee has just introduced a grab-bag of laws designed to "ease the burden" on small employers.

Foulke also has a rather warped view of the role of enforcement:

“We need mandatory and voluntary programs,” Foulke said. “We need to enforce, and we need compliance outreach. Enforcement is after the fact. The goal is to prevent injuries.”

First, Ed, enforcement is only "after the fact" if you wait until "after the fact." Someone should let him know that it's also possible to enforce the law before workers are killed. And large fines, along with criminal prosecutions and prison terms could also be an incentive that might encourage employers to prevent injuries and fatalities before the fact.

Oy

And it was clear from Stickler's testimony that his nomination had been made in the long distant past when no one cared much about mine safety or had even heard of MSHA. When asked by Senator Hillary Clinton whether he would promise swift action on suggested mine safety reforms, all he could manage in response was “I will study [the proposals]....If some are justified and need to be advanced, I’ll do that.”

The Senators were not impressed:

“That seems like a fine answer,” Clinton said, “but with the evidence that changes need to be made—from congressional and independent studies—it’s troubling that we’re going to be studying more.”

“With recent events, ‘study’ is not reassuring,” [Senator Edward] Kennedy said.

Although it wasn't discussed at the hearing, Stickler is coming under fire for his performance as Director of Deep Mine Safety in Pennsylvania, as described in Occupational Hazards magazine:

Stickler was in charge of the bureau at the time of the Quecreek Mine flood in 2002, which trapped nine miners and nearly cost them their lives. In its final report issued Aug. 12, 2003, MSHA found that the primary cause of the water inundation into the mine was the use of an undated and uncertified mine map of the adjacent, water-filled Harrison No. 2 mine that did not show the complete and final mine workings. Using this map led to inaccurate depiction of the location of the Harrison No. 2 mine workings on the Quecreek No. 1 mine map required by MSHA and on the certified mine map submitted to Pennsylvania in the permitting process.

The root cause of the incident was the unavailability of a certified, final mine map for Harrison No. 2 in the state's mine map repository.

Black Wolf Coal Co., Musser Engineering Inc. and PBS Coals Inc. each received one citation for a violation of federal mine safety standards in using the inaccurate and outdated map. The investigators noted, "The final map may not have been available ... but other information ... would indicate that the boundaries used were questionable." The companies are contesting the citations.

Stickler, who received a gubernatorial award for his work on the scene at the Quecreek Mine flood, at the time urged Pennsylvania mine operators to update their maps so another tragedy like the Quecreek Mine flood could be avoided. His actions were too little too late for some critics, who point out that in the year following the Quecreek incident, a grand jury determined that the bureau, which had been headed by Stickler for 5 years at that point, should have noticed the mapping problems sooner.

Stickler's private sector experience wasn't much better:

Mines managed by Stickler were marked by worker injury rates that were double the national average, according to government data cited by the United Mine Workers union, also expected to make an appearance during the confirmation hearings. One of the mines he managed for 5 years had two fatalities during that time, they said.

So welcome to the Bush administration guys. I'm sure you'll both do a hell of a job.

Senator Enzi's opening statement here. Senator Kennedy's opening statement here. The committee probably won't vote on the nominations for a couple of weeks.

OSHA Nominee Ed Foulke: A Gift to Workers From A Union Busting Law Firm

So it turns out that the nomination of Edwin Foulke as Assistant Secretary of Labor for OSHA last week is looking more and more like a typical Bush administration move: Appoint a Republican political operative to head an agency that he's spent most of his career working to undermine. Except in this case, there's an extra twist. Foulke is not just a Republican mover and shaker in South Carolina, he's also a partner at Jackson-Lewis, one of the most notorious union-busting lawfirms in the country. How appropriate for a Bush Administration Assistant Secretary of Labor.

I realized that when I wrote the original post that Jackson Lewis resided on the dark side, but I didn't have time to do much research that evening. Little did I know how easy the research would be. Just Google "Jackson Lewis" + "union busting" and you come up with 322 hits. Substitute "union busting" with the more polite phrase "union avoidance" and you get 304 hits.

Jackson Lewis publishes a newsletter called Preventive Strategies and one of their main Practice Areas is Labor Relations, including Preventive Practices"

Committed to the practice of preventive labor relations through issue assessment, supervisory training, policy development, and positive communications, Jackson Lewis has assisted many employers in winning NLRB elections or in avoiding union elections altogether. (emphasis added)

Much of Jackson-Lewis's evildoing, or "preventive labor relations" came to light nationally in a New York Times article last year that described how Enersys, a company that had hired Jackson Lewis to help it "avoid" a union, sued the law firm for malpractice, accusing Jackson Lewis of advising it to engage in illegal behavior.

You've really got to read the entire article. It's a nightmare about how the workers at the plant chose to organize with the International Union of Electrical Workers (IUE), despite the anti-union campaign organized by Jackson Lewis for the company. The company then fired a union steward and broke numerous other labor laws leading to an NLRB complaint citing 120 violations of federal law, among them wrongly firing union leaders, assisting the anti-union campaign, improperly withdrawing union recognition and moving production to nonunion plants as retaliation. The company then refused to sign a contract and threatened layoffs unless the union agreed to a "gainsharing program," that would provide bonuses based on productivity increases. The company never provided the bonuses and it was later discovered never had any intention to. (More on Enersys here.)

Even Tonight Show host Jay Leno doesn't think much of union busting firms like Jackson, Lewis:

Unionists have a good reason to watch "The Tonight Show". Its host, comedian Jay Leno, just busted the number-one union busting law firm, Jackson, Lewis, out of a lucrative deal.

Leno was scheduled to appear at the Society of Human Resource Management's annual convention in Las Vegas on June 25-28 - that is until union research Rick Rehberg found out about it. Rehberg, a corporate researcher for the Food & Allied Service Trades, an AFL-CIO department, kept coming across Jackson, Lewis in the 25 or so union campaigns he's worked on.

That's not surprising since the notorious law firm has defeated organizing drives in over 30 states. And they've done it mean and dirty. For example, the New York Daily News reported the law firm was responsible for setting up armed guards at factory gates in at least three states to stop union organizing campaigns. And Jackson, Lewis routinely advises companies to set up forced overtime when union meetings are scheduled, watch workers during break time to detect potential organizing drives, and prohibit workers' communication to thwart the distribution of union material.

Companies pay big money to Jackson, Lewis and other union busters for exactly that kind of information. In fact, union busting is a billion dollar industry. Jackson, Lewis charges $1,200 to $1,600 a person for running seminars titled, "How to Stay Union Free in Today's Era of Corporate Campaigns" and "Best Employer Practices to Stay Union Free in the Millennium". But thanks to Leno, Jackson, Lewis, won't be garnering a hefty check at this year's SHRM conference.

You can also find stories about J-L's participation in notorious campaigns against the unionization of Borders Bookstores, Berlin Health & Rehabilitation Center in Berlin, Vermont, Episcopal Church Home, nursing home in Rochester, NY, and Patient Care in New York City and many, many more. Infuriated after losing a 2002 election at Saint-Gobain Abrasives factory in Worcester, Massachusetts, Jackson Lewis even went so far as to file an unfair labor practice suit against Congressman Jim McGovern (D-MA) because he told workers that they should vote for the union (which they did.)

Foulke isn't directly part of J-L's union-busting practice. He belongs to the "Workplace Safety Compliance, including Violence Prevention" practice:

To assist in compliance efforts and to reduce the likelihood of a citation, we advise employers in developing safety programs and conducting preventive self-audits to pinpoint and remedy potential legal vulnerabilities.

Yes, you read that right. The purpose of Jackson Lewis's safety programs and self audits is not to protect workers from getting injured or killed, but to "pinpoint and prevent potential legal vulnerabilities." We all have our priorities.

And then there's the Violence Prevention part, which from J-L's perspective seems to be instruction in how to lay off troublesome employees without having them come back in and blow your head off. No mention is made of the overwhelming cause of workplace violence like retail store robberies and assaults of mental health and social service workers.

Foulke was also a member of J-L's Management Training practice, which includes programs on "maintaining union-free status."

Whether or not Foulke participated directly in Jackson Lewis's union busting activities, he certainly didn't have a whole lot of good things to say about one of labor's priorities throughout the 1990's, OSHA's ergonomics standard that was repealed by the Bush administration in 2001:

"It should be called the OSHA Lawyers' Full Employment Act," says Edwin Foulke, himself an attorney who specializes in OSHA-related issues for the Jackson Lewis law firm based in Washington, D.C. "I would have liked to have seen voluntary guidelines. Most employers want to do the right thing, but this will just be a big record-keeping exercise."

Foulke and other skeptics claim there isn't enough science yet to prescribe precise fixes for problems....

While Foulke was basically J-L's OSHA guy, questions need to be asked (preferably by Senators at his confirmation hearing) about what Foulke thinks about workers' right to organize. Was he in sync with the union busting activities of Jackson Lewis? Are union organizing campaigns that focus on health and safety issues a healthy sign of worker involvement or a sign of trouble? What does he think about behavioral safety programs that blame workers for accidents?

What does he think about the role of the "worker representative" as described in the OSHA law? Is it a good thing if workers exercise their rights to push management into improving safety conditions? Coming out of such a virulently anti-union firm, will he be able to work with unions? Unlike any other Republican administrations since OSHA was created in 1971, the Bush appointees have refused, with rare exceptions, to work seriously with unions. Will he continue this practice?

So what does all this mean for OSHA over the next 3 ½ years?

The bottom line is that we’re somewhat lacking in actual health and safety expertise in OSHA's front office. We now have attorneys in all of the top three jobs: Foulke, an attorney from a union busting lawfirm, a local Republican Party chairman and an officer in the Republican National Lawyer’s Association; Deputy Assistant Secretary Jonathan Snare, a former Texas political operative, member of the Republican National Lawyer’s Association and former lobbyist for Metabolife, maker of the killer drug ephedra; and Deputy Assistant Secretary Steve Witt, an attorney who has worked at a variety of positions in OSHA's Washington headquarters since 1985.

What all this means is no major regulations except those ordered by the courts, more emphasis (if that’s possible) on costly, unproven voluntary programs like VPP and alliances, continued frosty relations (or no relations) with labor unions, enforcement will continue muddle along increasingly strained for resources and there will be little, if any, Congressional oversight unless the Democrats take back one house of Congress next year.

In other words, status quo.