[occ-env-med-l] Exit letter from J. Oudiz, Sr. Safety Engr., Cal/OSHA

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From: gngreenberg@...

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Sent: 6/21/2009 7:50:53 P.M. Pacific Daylight Time

Subj: [occ-env-med-l] Exit letter from J. Oudiz, Sr. Safety Engr., Cal/OSHA

from Diz <dizj1@...>

to Garrett Brown <garrettdbrown@...>

cc gngreenberg@...

date Sun, Jun 21, 2009 at 6:26 PM

subject Re: FW: Couple of item related to Cal/OSHA for list serve

Hi , permission granted.

Jack Oudiz

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Jack Oudiz's " Exit Interview " from Cal/OSHA Upon Retiring After 25

Years With the Divison

Jack Oudiz – Senior Safety Engineer, California Division of

Occupational Safety and Health (Cal/OSHA)

As I approach my retirement from the California Division of

Occupational Safety and Health after nearly 23 years as a compliance

industrial hygienist, a District Manager, a Regional Senior Industrial

Hygienist and Senior Safety Engineer, I wanted to share some thoughts

on my experience and on the current state of affairs in the hope that

it might contribute to future change. Many leading employers in the

private sector have found value in conducting exit interviews with

long time employees. In the absence of such efforts by DOSH or the

Department of Industrial Relations, I offer these comments as the

equivalent of my exit interview.

My statement is compelled by a sense of sadness and disappointment at

leaving an organization that is in many ways much less effective than

I found it nearly 25 years ago. The Division I leave today has veered

so far away from its mission that it has begun to redefine that

mission to justify its actions. It has disregarded the health and well

being of its internal operation for so long that low workforce morale,

lack of adequate resources, inept and poorly trained managers,

directionless field staff, low expectations and complete lack of

accountability has come to be the accepted norm. In the political

realm, the imbalance of power between labor and employers has

contributed to this steady deterioration resulting in weaker

regulations, weaker enforcement and the abandonment of the advocacy

role intended for the Division by the OSHAct.

First, let me be clear that it has been an honor to work alongside

many of my dedicated and incredibly committed colleagues in the

Division these past many years. They have inspired me and kept me

going in the face of neglect, ineptitude and irresponsibility. The

disappointment in knowing " what could be " was in part offset by the

privilege of their friendship and a job that at times did make a

difference. I leave feeling not bitterness or disgruntlement but

rather a great deal of pride and gratitude.

I also leave behind a record of accomplishment and achievement I am

proud of. In October 2001, I was honored to be asked to lead the

Division's contingent of volunteers that assisted OSHA at the World

Trade Center disaster recovery site. Upon my return, I was also

responsible for creating, developing and leading the Division's

Emergency Response Program which I subsequently was able to integrate

into the California Statewide Emergency Management System.

In 1994, I was asked by Chief to develop and implement the

Division's Professional Development and Training Unit, the first such

professionally coordinated training program in the Division's history.

Since 1994, I have been primarily responsible for the development and

delivery of all professional training for all Division enforcement and

consultation staff. During fatter budget times, this effort resulted

in more than 30,000 person-hours of training given per annum while

functioning as essentially a one-person unit.

What is The DOSH Mission?

The history of the enactment of the Occupational Safety and Health Act

of 1970 shows that the governmental role in regulating safety and

health conditions in workplaces was the direct result of many years of

political struggle by workers and their unions. While the Act was far

from perfect in its scope and construct, it did establish the

fundamental principle, in law, that all workers have the right to a

workplace that does not endanger their safety and health, the " General

Duty Clause " as the Federal agency calls it. This principle was

codified in the California Labor Code as a statement of responsibility

of all employers. A national regulatory bureaucracy was created by

this Act to assure that this principle was in place and enforced in

all workplaces. The Division is the branch of that bureaucracy in

California. It derives its mission and reason for being from that

principle. That is, to assure, to the best of its ability, that

workers in California are afforded the protection required to keep

them safe and healthy at work.

That one clear message has never been articulated by anyone in a

leadership role while I have worked in the Division. Consequently,

each person who comes to work in DOSH is left to define for his or

herself what is their role and what is their purpose within this

bureaucracy. Since " production " measures have always been given the

most outspoken emphasis by Division leadership, some come to see the

mission as defined by the number of inspections and citations amassed.

Others come to the Division with prejudices and biases regarding

workers, unions, employers and, absent any clear guidance and emphasis

from above, continue to express those leanings in their daily work.

The result, as I have consistently observed it, is a workforce with a

wide divergence of commitment to the agency's mission led by many

managers whose success is evaluated and measured by statistics rather

than by their level of dedication and ability to create common cause

in pursuit of the mission.

As lead of the Division's Professional Development and Training Unit

the past 15 years, I developed an Orientation to Enforcement training

for all incoming newly hired inspector staff. The content of this

training, in addition to a great deal of introduction to the mechanics

of performing inspections, has always included segments on the history

leading to the passage of the OSHAct including the history of

occupational safety and health struggles in this nation and the point

of view of labor on the role of OSHA as expressed by a guest union

organizer. This is usually the only exposure to these subjects that

DOSH inspectors ever receive in their working lifetime. Only once in

these past 15 years has a DOSH Chief made an appearance at this

training to welcome new Division employees. This opportunity to

inspire, to motivate, to clearly and unequivocally emphasize the

mission of the Division has been repeatedly squandered.

In my tenure with the Division, I have served six different DOSH

Chiefs. Not one of them ever articulated the mission of the Division

to its employees. Not one of them ever made a serious effort to

inspire and motivate its employees to understand and excel in

furthering that mission. What is the primary mission of the Division?

Ask DOSH employees that question and you will very likely receive a

variety of diverging responses. Is it to protect and advocate for the

safety and health of workers? Is it to enhance commerce? Is it to

assure that there is a " level playing field " for all employers? Is it

to be a neutral arbiter between workers and employers?

Now that the financing of DOSH is increasingly coming from levied

employer fees, there is already open talk from Division leadership

about employers as " our customers " and steps are being taken to

implement this latest interpretation of the mission. For the first

time, the quality and not simply the quantity of the field work is

being scrutinized and addressed by DOSH leadership. However, the

justification being given to the workforce is not the goal of greater

protection for workers but rather it is that employers deserve a good

return on their investment! Is it realistic to expect that aggressive

enforcement of protective health and safety regulations is really the

return on investment that California employers want and expect?

All of this is not to imply that DOSH leadership has lacked vision all

these years. Rather it is to say that that vision has seldom been

congruent with the fundamental principle established by the OSHAct. As

political appointees, DOSH Chiefs have been selected with certain

expectations from the Administrations they serve. Twenty-two of the

past 25 years, DOSH Chiefs have been appointed by and served under

business-friendly Republican administrations. The impact of that

history on the Division's interpretation of its mission has been

incalculable.

served as Chief of the Division for approximately 10

years. He was a man of enormous personal charm and intellectual power.

He received accolades from both labor and employers during his tenure.

I was inspired by and honored to work with him. Dr. was also

appointed by and served primarily under Republican governors. Dr.

fundamentally did not believe in the enforcement paradigm

created by the OSHAct. His major accomplishment during his tenure was

the revision of the DOSH Policies and Procedures Manual to its present

600+ pages incarnation. This was done as an effort to bring greater

consistency in the manner and methods used by each enforcement office

within the state. It was a huge undertaking that absorbed a tremendous

amount of the Division's energy and resources, including monthly,

week-long training sessions over 14 months. It was carried out, in

large part, in response to complaints from California's employers who

felt that inconsistencies in enforcement actions were a detriment to

their business practices.

What has this effort done to improve the ability of the Division to

more effectively achieve its mission? From my vantage, the answer is

very little, particularly when judged against other opportunities that

were squandered. In that timeframe very little was done to address the

longstanding structural problems affecting the real daily work of DOSH

staff. Poorly qualified managers continued to be appointed throughout

the Division. Managers continued to struggle to be effective leaders

without adequate training, mentoring or guidance. Staff demoralization

reached all-time low levels partly in response to the hugely increased

bureaucratization of the work and the continued deterioration of

resources, support, training and leadership. Most significantly, the

Division continued to ignore the glaring truth that far more staff was

needed to successfully carry out its mission.

Woefully Inadequate Resources to Get Job Done

California continues to trail both Federal OSHA as well all other

state staffing levels with respect to the proportion of enforcement

inspectors to the state workforce. This staffing shortage was the

focus of recent legislative oversight scrutiny. When given the chance

to affirm the need for more staff, the current DOSH Chief buckled to

political pressure and declared that " efficiencies " in operation would

counter the need for additional personnel. This statement was so

ludicrous and the needs are so glaring that even he has now finally

had to publically pronounce that the Division is in sore need of more

resources and staffing. In the meantime, the presnet Chief just

created and filled a high level staff service manager position with an

" efficiency " expert while a Deputy Chief for Occupational Health

position remains unfilled for the 10th consecutive year.

The consequences of chronic staffing deficiencies in enforcement

district offices are numerous and have a huge impact on the work and

morale of Division staff. When workloads are too great for offices and

inspectors, inspections and accident investigations are rushed,

witnesses are not interviewed, evidence is not collected, citations

are not issued or are given away to avoid time consuming appeals,

inspections are conducted by letter rather than in person, some

accidents even fall through the cracks and never get investigated.

Mentoring of inexperienced inspectors seldom occurs and they are often

left to fend for themselves in complicated inspections or

investigations. Who benefits from all of this? Who suffers the

consequences? Is it any surprise that inadequate staffing levels has

been the one consistent hallmark of the past 25 years?

Lack of Leadership/Lack of Accountability

The Division I leave today is marked by low levels of morale among its

workforce. One of the most consistent contributors to this low morale

has been the lack of excellence in leadership stemming from the poor

process of selection and lack of training of DOSH managers at all

levels for the critical role that they play. Excellence in management

is not tested for, it is not selected for, it is not rewarded and it

definitely is not taught in the Division. The manager selection

process that I have observed has usually been either a complete

crap-shoot or the rank exercise of favoritism. At least one Regional

Manager was selected simply because she was all that was left on the

civil service list. She covers her incompetence through belligerence

and terror and is currently the subject of grievances by an entire

District office. This is common knowledge ignored for years by

Division leadership. Once an unfit manager is in place, he or she

remains there for years barring the most egregious circumstances.

The combination of my statewide role as the Division's training

coordinator, my longevity on the job and my personal initiatives put

me in the somewhat unique position of having recurring contact with

nearly all professional staff in the Division. I hear all the rumors,

I know all the dirty secrets, and I know where the bodies are buried.

I also know which managers are incompetent, which ones are bullies,

which ones are liked and which ones are despised. I know which

managers try to inspire and which ones lead by coercion and

intimidation, which ones are still dedicated to the mission and which

ones were long ago beaten into submission. I know which ones give away

citations to avoid the hassle of appeals and which ones are usually

prone to take the employer's view on contentious issues.

The impact of an unfit manager on an agency such as DOSH and on the

morale of its staff can be devastating and can last for many, many

years. This problem has been consistently ignored by every Chief I

have served. None more than the present one. Poor choices in manager

selection have been compounded by the lack of accountability at any

level of the organization. Accountability is not an easy issue in

civil service. It requires clearly defined expectations and a

consistent application of well understood consequences. Neither of

those exists in DOSH. The lack of accountability eventually also

reaches the field level inspector where the slothful or the

incompetent persist in their jobs year after year alongside those who

choose to work hard and exercise superior skills. One suffers no

consequences nor is the other recognized or rewarded. Personal

motivation and initiative are the only impetus to good work in the

Division. For many years, I tried to convince Division leadership to

implement the state's already well established employee recognition

program. It fell repeatedly on leadership's deaf ears.

Decline of Labor Influence/Rise of Employer Influence

The historical decline in the strength and influence of the labor

movement in California (as well as nationally) in the past 25 years

has had a devastating impact on the effectiveness of the Division and

its commitment to its mission. It is hard to conceive that at one time

the Chairman of the Cal/OSHA Appeals Board was a former union rank and

file member and shop steward. The imbalance of power between labor and

employers has been reflected in the regulatory process, in the

appointments to critical positions on the CalOSHA Appeals and

Standards Boards, in the hiring of and decisions rendered by the

Appeals Board and its judges and in every other facet of DOSH policies

and procedures.

The universal use by the Division of advisory committees and the

development of regulation by consent, on its face, may have the appeal

of fairness and balance, but in reality it has slanted rulemaking

power overwhelmingly to employers. It is not unusual for a regulatory

advisory body to have a 10 to 1 ratio of representation in favor of

employers. Even when labor representation is present, it is

customarily severely outgunned in expertise, experience and

assertiveness. The outcome, in the case of landmark regulations such

as the ergonomics standard and the heat illness prevention standard,

clearly reflects this imbalance of power. These two regulations have

given DOSH an undeserved reputation as a leader in progressive health

and safety rulemaking. The truth is that these regulations were

grudgingly enacted only after vociferous labor action (and heat

related worker deaths that drew public outcry) and were weaker

versions of what was needed.

DOSH's role is intended as an advocate for worker health and safety.

The OSHAct did not intend nor require consensus or agreement between

the regulated community and those the agency is designed to protect.

The OSHAct did not intend nor require the balancing of worker safety

and health with industry profits. Rather, the law requires the agency

to protect a worker, to the extent feasible, from " material impairment

of health or functional capacity even if such employee has regular

exposure to a hazard regulated by such standard for the period of his

working life. " When the Division assumes the role of an impartial

party in the development of regulation, it abdicates its

responsibilities as an advocate for worker health and safety.

Because of emphatic employer opposition to the ergonomics standard,

the compromise regulation that was passed ignored much of the

scientific evidence and has remained essentially unenforceable. The

" Noah's Ark " approach that requires a minimum of two of each type of

injury to trigger the requirements of the regulation has meant that

many exposed or injured workers lack any protection simply because

there may not be any injured co-workers. Consequently, the negligible

incidence of cited DOSH ergonomics cases does not begin to reflect the

scope of the actual hazard in workplaces.

The heat illness standard recently enacted also faced stiff employer

opposition. Compromises were made by the Division that omitted key

elements demanded by labor such as the inclusion of indoor work places

within the scope of the regulation. It also put the onus of requesting

rest periods on workers. Anyone familiar with the realities of the

workplace understands that workers, particularly low wage workers, are

not likely to ask their employers for relief because they fear they

will lose their job and California's regulations on piecework, which

permit the employer to pay only minimum wage for a 40 hour work week,

create a significant financial penalty for any worker who takes a

break.

Enforcement Sabotaged By Appeals Board

In recent years, perhaps nothing has had a more deleterious impact on

the daily activities and morale of the Division's enforcement staff

than the practices of the Cal/OSHA Appeals Board. The attitudes and

decisions of many of the Board's administrative law judges have been

widely perceived by enforcement inspectors and many of their managers

as anti-Division and strongly biased in favor of employers.

The Board itself has reinforced this perception by capriciously

dismissing important citations based on frivolous technicalities such

as partially inaccurate company names or downgrading citation

classifications without reasonable cause. These decisions and actions

have a widespread chilling effect on Division's staff. Both managers

and inspectors are more reluctant to classify serious citations in the

expectation of a negative outcome on appeal. " Why bother? " is how many

feel. In other cases, staff has begun to reinterpret DOSH regulations

based on what they have seen in ALJ decisions. This negative impact

has been compounded by practices of the Appeals Board such as

overbooking of hearings, arbitrary denial of continuances and

expecting worker witnesses to travel great distances for hearings. In

an unprecedented recent move, 47 Division staff, including eight

District Managers and nine Senior Safety and Industrial Hygiene staff,

signed a letter to the Appeals Board demanding that it cease and

desist its practices which have prevented the Division from

effectively carrying out its mission.

The Division leadership has done little to protest or challenge these

actions by the Board. In recent Senate oversight hearings, the

Division Chief was effusive in his praise of the Chairwoman of the

Board. Only because of pressure from labor advocates has the Board

begun an advisory process which itself is, not surprisingly,

overwhelmingly stacked in favor of employers and their

representatives.

Lack of Political Will for Change

Until there is the political will in California to take seriously the

principle established in law by the OSHAct, I don't expect that the

Division will become any more effective in carrying out its mission.

We will continue to have leadership beholden to the Chamber of

Commerce rather than the working men and women of California and

unwilling to address the structural deficiencies of the Division.

Those deficiencies have the net result of less effective enforcement

of ever weaker regulations and a dispirited workforce in search of

inspiration and leadership.

Without pressure from below, there is little incentive for change. The

OSHAct was in many ways a revolutionary act. For the first time, the

dictatorial power of the employer over the workplace was challenged.

Government inspectors were given the unprecedented power to not only

inspect all workplaces but to shut workplaces or work activities down.

It is not surprising that employers and their elected representatives

fought the Act tooth and nail. It is also not surprising that these

same forces have continued to fight at every opportunity to diminish

the Act and the effective enforcement of its intent. What has not been

achieved through legislation has been essentially accomplished through

sabotage, undermining, and resource starvation. If there has to be an

OSHA bureaucracy, then every measure has been taken to see that it

cannot effectively function. The more demoralized the workforce, the

more complacent the leadership, the less accountability in the

organization, the less competent the managers and inspectors, the

better for those opposed to the achievement of the Act's goals.

Only a grassroots effort by workers, unions and those who support

social justice and human rights can exert the political pressure

necessary to correct the institutional problems that have overwhelmed

the agency given the duty and responsibility to protect worker safety

and health rights.