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July 25, 2005

Response to a Critic

So I’ve been burned up about a little something for about a week now, and I think rereading Brian Dominick’s post about our corrections policy hasn’t helped a damn bit.

See, personally I find the editing he and Jessica Azulay do every day to be outstanding, both in regards to making sure I’m happy with the writing being published in my name, and, even more so, for their exhaustive efforts to ensure that whatever makes it onto the site is as accurate as possible. And, I think, those efforts extend to my colleagues here, though maybe they don’t need to their facts checked as closely….

In addition to the pre-publishing efforts, they take challenges to stories VERY seriously. Trust me. What follows is an account of one such recent adventure.

A couple Mondays ago, as I was whittling away the time at my glamorous day job, possibly skimming some-not-yet published medical ethics tome for stray errors or, more likely, trying to coax various academics into staying on schedule with their manuscripts, reviews or what nots, an e-missive from Brian came through the ether asking that I call as soon as possible as it appeared there might be a problem with this brief I penned on four Congressional bills destined to defang the Occupational Health and Safety Act.

As it turned out, a lawyer boasting decades of experience with OSHA law called TNS and challenged Brian on the story. The man never revealed his employer or anything about his professional credentials or affiliations. He did provide his name, but later asked me not to use it.

Diligently and properly, Brian contacted the reporter on the story (me) and asked some hard and specific questions about information in the piece. This is as it should be.

I answered the questions, we discussed the issue and determined that the concerns raised -- suggesting my reporting on the effects of one bill and the language in another was flawed -- were baseless. This, too, is the way things are supposed to go – we listen to criticism, we consider it seriously, and we either publish a correction or, more often, emerge more confident in what we’ve published.

But I was still curious about the lawyer’s complaints and wanted to have a chat -- maybe it would clear up someone’s misinformation. Luckily, the critic had expressed an interest in speaking with me as well.

Oh yeah, he also offered Brian his services as a source for future OSHA-related stories.

So I called him. We spoke.

Unfortunately, I believe that I cannot ethically reveal what he said, as at the very beginning of the phone conversation the critic told me he would speak with me only as long as what he said was not reported. He even made sure to add a statement to the effect that the conversation couldn’t even be considered on background. A later email specifically stated that I could not use the contents in any published form.

What he didn’t do was offer any explanation of the disagreement with the reporting, nor did he respond to a detailed explanation—including direct quotes from the measure itself—of how Senate Bill 741 would empower the OSHA Review Commission to make rules.

Now, since our communications ended in rancor, and my integrity and that of TNS were baselessly impugned, I’ve wanted to air out what happened publicly. Moreover, I feel that our lawyer friend should have at least deigned to offer his critique in an open fashion; after all, the guy was calling a news outlet to challenge a story.

Alas, Brian and I differ on the matter and for the most part I defer. He is correct. My initial rant about this was a bit out of line. In it, I named the guy and linked to things he had said and written that are in the public record. And I may have described the content of our communications a little too closely.

That said, I still think we should name our anonymous critic. And though I can’t, Brian is, as far as I am aware, under no such embargo.

How about it, Brian?

Anyway, here is what I sent our antagonist– the bulk of which I had already put together for Brian – at the end of our telephone conversation. If you ever wondered what kind of analysis and consideration go into a 5-paragraph brief (and think you have the stomach for it), here’s a glimpse…

Dear [redacted],

Thank you for taking the time to speak with me today and for expressing your concerns about the article I wrote about the now recently passed House OSHA legislation. I take what I do very seriously and prize accuracy above all else, which is why I feel compelled to take this issue up with you even though my editors and I discussed the concerns you raised and stand by the reporting on the bills.

As you well know, predicting what legislation will actually do is a tricky enterprise. For my purposes, I always read through the full record, which can be accessed by following the "Reports" link off of the "Bill Summary & Status"


When you click the link, a new page appears containing a table of contents with

hyper-links to every official comment and written portion of the legislation. These sections usually include information on budgetary concerns, possible Constitutional problems, a summary, statements of purpose and various other related items which, as I understand it, are then used in implementing the law if and when it passes through the joint committee and becomes law with or without presidential signature.

Speaking of HR 741 specifically, I relied mostly on the "Summary" and

Purpose" sections to glean the likely effects of the legislation.

The "Purpose" section states:

H.R. 741, the `Occupational Safety and Health Independent Review of OSHA Citations Act of 2005,' is intended to restore the original intent of Congress under the Occupational Safety and Health Act of 1970 (the `OSH Act') with respect to the relationship between the Occupational Safety and Health Administration (`OSHA') and the Occupational Safety and Health Review Commission (`OSHRC' or the `Commission'), the adjudicative agency specifically created by Congress to hear disputes arising under the OSH Specifically, H.R. 741 restores the intent of Congress that OSHRC decide cases without regard to the views of OSHA, and ensures that interpretation of the OSH Act is in accord with Congressional intent by statutorily requiring that OSHRC's rulings are the controlling interpretations of law under the OSH Act when being reviewed by the courts, so long as they are reasonable.

And the Summary states:

H.R. 741 simply governs the relations between two agencies under the OSH Act: OSHA and OSHRC. The OSH Act confers rulemaking and prosecutorial authority on OSHA, but places a special limitation on the exercise of that authority by providing for an independent review of OSHA's citations and assessments by OSHRC. The OSH Act makes clear that with respect to contested citations, OSHRC is specifically authorized to affirm, vacate, or modify either the citation or the proposed penalty. 3

[Footnote] Since the OSH Act provides that all citations, whether contested or not, become enforceable only as final orders of the Commission, the Committee finds no basis for OSHA's position that deference should be given to its interpretations of law, rather than that of OSHRC. To the contrary, by way of H.R. 741, the Committee affirms the original intent of Congress--that OSHRC was to decide cases without regard to OSHA's views--by statutorily requiring that reviewing courts grant to OSHRC, not OSHA, on questions of law, so long as OSHRC's interpretation is reasonable.

Since the "Purpose" notes that "OHRC's rulings are controlling interpretations of law under the OSH Act" and the summary states that the under the OSH Act "OSHRC is specifically authorized to affirm, vacate, or modify either the citation or the proposed penalty," I don't see how any honest interpretation of the bill would find anything other than the authority to change the way OSHA regulates businesses in the language. If modifying citations and penalties isn’t rule making, they’re kissing cousins.

Furthermore, a reasonable interpretation of the statute requiring the DoL to defer to OSHRC rulings is, on face, enough to deduce that the Commission will be granted the powers to alter regulations apart from what OSHA or the Secretary of Labor determine if this bill becomes law.

As the "Minority Views" section notes:

The Commission's authority is similar to that of a court and fully protects the regulated community from biased interpretations of the Secretary's authority. Citations and assessments by the Occupational Safety and Health Agency are already subject to independent review by the Commission and the Commission is fully authorized to set aside any unreasonable interpretations proffered by the Secretary. The issue raised by this bill is whether the Commission can substitute its own interpretation for the reasonable interpretation the Secretary offers of her own standards. Where the agency is acting within the limits of its authority as prescribed by Congress, not even the courts contend that they have, or should have, the power to overrule the reasonable regulatory opinions of executive agencies. Yet, that is the authority that H.R. 741 seeks to bestow on the Commission.

In addition, the "Committee Reports" section carries this clarification in reference to the 1970 'Javits compromise':

The evidence before the Committee makes clear that Congress intended that OSHRC, not OSHA, would have the final administrative say in interpretation of ambiguities under the OSH Act...The record further confirms that Congress intended to limit OSHA's prosecutorial power and to confer upon OSHRC the final compliment of adjudicative powers that are available to similar agencies. It is clear that Congress intended to vest OSHRC with this authority not only to ensure that the adjudicatory process would be fair to the regulated community, but also that there would be some reasonable check on the prosecuting agency's ability to interpret the law it was to apply.

Now, we can, and I strongly suspect do, have a difference in interpretation regarding the OSH Act, the creation of the OSHRC and the way the two interact with each other and the courts, but that is not the issue you raised. Nor is it an issue I raised in the article.

My interpretation is admittedly colored by my world view, as yours surely is, coming from one who offered Congressional testimony in support of the US Chamber of Commerce’s attempts to restrict the regulatory function of the OSH Act a year ago and sits on the Chamber’s Labor Relations Committee. That said, I am interested in hearing how you interpret the effects this bill will have.

From your prior testimony, I see that you feel the Supreme Court’s judgment in Martin v OSHRC was faulty as it relied on the term "reasonable," which is the same term used HR 741 uses in laying out the scope of OSHRC’s adjudicating and interpretive powers. Why should the Commission be allowed the standard and not the agency? Is the Commission somehow empowered to utilize its interpretation of "reasonable" better than the Agency?

I would like to chronicle the difference in opinion we have over this issue in The NewStandard’s staff weblog section. As such, I would prefer if you would consent to having your name appear as the source for a differing interpretation of the legislation in question.

Again, thank you for your time and concern. I look forward to hearing from you and look forward to an open and honest debate on this issue.

As a side note, it is common practice to inform a news publication of one's organizational representation when taking issue with a particular published item.

Brendan Coyne


Brian Dominick: Responding to Critics

Brendan, I feel your pain on this, but I'm afraid I cannot reveal the name of this guy. He was vicious and deceitful, and he did not say I cannot use his name, and he does terrible things -- but even in our weblog we have to maintain the highest ethical standards, so he's going to have to remain anonymous for now. However, you'll get the assignment next time he testifies before Congress -- which he told me he does "regularly" -- and his deeds need watchdogging.

VivekApte: Response to a Critic

Yeah but did you stop to think that even your critics read your work? He wouldn't be as upset if what you publish didn't carry weight. Nice going ;-).

judasdac: Response to a Critic

I've got to side with Brian on this one. This guy is obviously a blowhard and a fool but that's not reason enough to out --- as it were --- him. Better leave him unnamed and scrutinize what he and his firm do in the future.

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The NewStandard ceased publishing on April 27, 2007.