Protecting a worker from occupational safety and health hazards is the goal. The duty to protect workers rests on the employer under the Labor Code. Cal/OSHA's role is to enforce the employer's duties, thereby protecting workers.

Cal/OSHA, however, is seen by many workers as ineffective. When workers complain, it may take weeks before an inspection, and the hazard is often gone. When an inspection does occur, during opening conference Cal/OSHA inspectors are necessarily delayed with management; meantime a flurry of activities occurs on the job that obscures potential violations. When citations are issued, the penalties are negligible compared to other administrative actions that, for example, protect the environment. Workers see their lives and safety valued less than some endangered creatures.

On the other hand, many, including a number of Cal/OSHA inspectors, blame workers, particularly workers who may be considered macho, for not following the regulations. Workers are often accused of not protecting themselves, but workers don't go to work to die, they go to work.

Workers don't have the resources to buy their own respirators and other protective gear. Even a construction worker, who earns a higher hourly than many other workers, works seasonally, their annual wages often range between $25,000 and $35,000.

Worker training is often ineffective. Construction worker tailgate safety meetings are often a joke. There is no time, much less encouragement, for workers to speak up. Other workers don't have it much better. Workers are rarely motivated effectively to protect themselves; training often doesn't emphasize the hazards the worker can take home to their children, which is a more effective motivator.

Workers fear for their jobs when they complain. When a worker asks for protective gear, s/he is often put off. By asking s/he may risk being fired. Discrimination for safety and health complaints is difficult, if not impossible, to prove; the Labor Commissioner statistics on cases won and lost bear this out.

IT IS IMPORTANT FOR THE Cal/OSHA inspector to have some knowledge of and empathy for the people the Division is supposed to protect. Workers face injuries and illnesses on the job which are serious, life-threatening and life-shortening. Workers today often face conditions that are worse than those that pre-dated Cal/OSHA's existence.

Conditions are degrading: in construction basic hygiene is ignored, on many jobs there is no place to even wash up before eating.

And the overriding hazard is speed-up. Productivity has increased, but the pressure to get the job done is ever increasing. The speed-up, including the long hours including forced overtime, contributes substantially to injuries.

II. APPLYING THE PHILOSOPHY - MAXIMIZE WORKER PARTICIPATION

If one begins with this premise, then it is critical to obtain information from workers so they can meaningfully participate.in the process. In order to maximize participation of workers, and in order to get them to talk to you, one must understand something about human nature. Basically, people do things if they perceive that it is in their interest to do that thing. What is necessary, then, is to determine what a person perceives to be in his/her best interest. This involves figuring out what competing interests exist and making some choices as to what to emphasize.

III. MAXIMIZING WORKER PARTICIPATION IN THE COMPLAINT PROCESS - INTERVIEWING

In order to talk about interviewing workers, not only do you need to understand something about human nature, but also you need to understand something about the components of an interview. You need to learn something about interviewing techniques. Before discussing the components of an interview and techniques, however, it will be helpful to know a bit more about human nature generally.

A. PSYCHOLOGY - A BARE INTRODUCTION

There are two crucial items that any good investigator must recognize as influencing the interview. First, pay attention to the nature of the person who is being interviewed. Second, understand the nature of the person conducting the interview. Generally speaking there are two sets of factors that influence the person who is being interviewed.

1. POSITIVE FACTORS INFLUENCING A PERSON BEING INTERVIEWED

The following is a list of positive factors. These are factors highlighted by others who have studied interviewing. These can be used to encourage a person to provide information.
a. Empathetic Understanding. A person who is being interviewed will respond better if s/he feels that there is some empathy with that which s/he is saying. Empathetic understanding involves listening, understanding the words you are hearing, and not judging what it is that the person has said.

For example, one should not give advice to a person that they should not worry about the condition that they are reporting. Often times the person who hears such advice will think that what they have just said, what they felt was quite serious and important, is simply not much of a problem. Even though you may be trying to be sympathetic and trying to allay their fears, if you make some kind of judgment regarding the severity of the problem, then you may cause the person with whom you are talking, to hesitate in giving further information.

b. Convey a strong expectation that the data you are asking for should be given. You can do this both verbally and nonverbally. You can simply say to a person that you understand that it is hard for them (as it is for you) to remember things. You can tell them to take their time, to think about it, and then to try to remember what it is that you have been asking of them.

You can even suggest to a person that they call you back with some piece of information later. This is a very useful technique. Often L a person thinks about a particular incident at home, and then writes that information down, one obtains very detailed and accurate descriptions and information.

c. Recognition. Explain that the information that is being provided is helpful. You don't have to comment or make a judgment on whether or not there is a serious violation involved, but you can recognize that providing information in and of itself is a good thing. You can support generally the giving of information.

d. Altruistic appeal/extrinsic reward. You can encourage a person by telling them that what they are doing will be helpful for other workers, that it will help protect their health and safety as well as the health and safety of that worker him or herself.

2. NEGATIVE FACTORS INFLUENCING A PERSON BEING INTERVIEWED.

There are also some important negative factors of which to be aware when conducting an interview. These are factors you should keep in mind, and if you see them, you may have to make appropriate adjustments during the interview.

a. The information that you want to obtain may be a threat to a person's ego. This is not often a problem in Cal/OSHA cases.

b. The information that you want to obtain may be perceived as not being helpful to the case. This may be a problem in a Cal/OSHA case. The person to whom you are talking may think that if s/he says something to you regarding a certain set of circumstances, that such will jeopardize the case. You should reassure them that you want to find the truth, and that they should hold nothing back, even if they perceive it as not being helpful to their case.

c. A witness may be lying. If you think that a witness is not telling you the truth, then you should try to build some rapport with them. Don't get into a confrontation. It is better to leave it for others to handle at a later date. However, you should note any feelings in this regard separately from the complaint form.

d. The witness may see him or herself as either dominant or subordinate to the person conducting the interview. This can affect the interview, and if you have initially chosen the wrong role, you may want to change.

e. Both sex and race have often interfered with obtaining information in an interview.

f. Trauma also can interfere with an interview. Cal/OSHA cases often involve the reporting of accidents, and in these cases the person being interviewed may have witnessed a particularly traumatic incident. Persons often do not want to recall something that is painful.

g. The information that you want may be perceived as not being relevant at all. Often times you will be interviewing a business rep from a union, who has been dealing with Cal/OSHA for some time. That rep is not used to having a person ask a lot of questions. It is necessary to explain to them that this information is relevant and is important.

This training program is not only to train Cal/OSHA employees to obtain more information, but also to reach as many worker representatives as possible who might provide the information. The response from worker representatives thus far has been very positive. When the worker representatives understand why the information is important, and that the information will help Cal/OSHA to do a more thorough inspection, they will provide the information.

h. The witness may fear for his/her job. The witness may not want to give you his/her name or other identifying data. Try to reassure the witness that we can keep their name confidential.

You should also mention that if they're the only one who is exposed to the problem which is the subject of the complaint, that you plan to ask them for information about other problems that exist in the plant. If the inspector has a number of things to inspect, perhaps the Employer will not be able to identify who it was that made the original complaint. Obviously, however, if there is only one person exposed and that is the only problem in the plant, then the fact that you promise to keep the person's name confidential will not be effective.

Also, assure a person that you will contact them at home instead of contacting them at work. Do ask their permission to do so.

i. Sometimes the witness or person being interviewed really wants to talk about another issue. This often happens in criminal cases when a person is not as concerned about addressing his/her case, but is more concerned about what to do about certain immediate problems: what to do about animals that are at home and not being attended to, what to do about cashing checks, etc.

3. INSPECT YOUR PERSONALITY

The other side of the coin is to inspect the nature of the person who is conducting the interview. Try to avoid a personality conflict. Examine your own personality and see where and when you are insecure.

Realize also that you are not going to be 100% effective when you conduct this interview. Your goal is to find a way to get a person to talk to you. That means you have to be a good actor or actress.

The best investigators are those who do not show their real personalities to the person that they are interviewing. There are two reasons for that. The first is that it is easier on yourself, and the second is that it facilitates the interview. If you can be a character other than yourself, and if the person you are interviewing abuses that character, then you don't go home feeling unhappy. It is only the character that is being abused, not you. Also, by being a character which is different every time you interview another person, a character designed to please the person that you are interviewing, you will facilitate the interview itself.

Choose a goal of getting the person to talk to you; do not choose the goal of getting a certain point across to that person. The best interviewers are those who appear to be that which the person being interviewed wants them to be.

B. COMPONENTS OF AND BASIC TECHNIQUES FOR INTERVIEWING

With this understanding of human nature, both of the factors influencing the person being interviewed and the person conducting the interview, one can begin to discus the components of the interview and a range of techniques.

The components of an interview are three. First, there is your ability to listen. Second, there is your ability to ask questions. Third, there is the ability of the person being interviewed to have perceived the information about which you are asking, to recall that information, and to convey that information.

1. ABILITY TO LISTEN

Regarding the first component, your ability to listen, there are essentially two ways in which you can listen. Effective listening can be passive or active. When you are listening effectively, you listen not only for content, but also for feelings. Effective listening, like empathetic understanding, enables you to get the details and to understand what is going on. In some instances passive listening is better, and in other instances active listening is better.

a. Passive listening is essentially when you hear the words that a person is saying, you don't rush them, you reassure them when they are silent, and you ask fairly open-ended questions and intersperse a lot of "okays" and "ohs".

b. Active listening is essentially when you try to absorb what it is that the person has said, and relay back to them the essence of what they have just said. Often times this involves thinking about what they have said, repeating a certain portion of it not exactly the way they said it, and then integrating what you heard them say into another question. This is not done in a judgmental fashion, but rather to reflect upon what they have said. It may involve asking a witness to be more precise when vague, or trying to identify and reflect unstated feelings. Generally, the technique of active listening is more effective.

2. QUESTIONING THE WITNESS

The second component of an interview is your ability to ask questions. There are basically two types of questions. There are open-ended questions and there are leading questions. An open-ended question is one which essentially asks what happened next. A leading question is one which narrows in and traces a course of activity quite precisely. A leading question often contains the very answer for which you are looking. Again, as with effective listening, both types of questions are valid and useful in an interview.

a. OPEN ENDED QUESTIONS

An open-ended question lets the witness or person being interviewed explain in their own words exactly what happened. It does not lead to a distortion of the story, and it lets you make some observations about the ability of the witness to perceive, recollect, and relate an incident. A person who can tell a good story from an open-ended question may be a very good witness. The drawback to open-ended questions, however, is that the interview could go on forever.

b. LEADING QUESTIONS

Leading questions are often good to use when you need to move the interview along. If you know the answers and you need to confirm those facts through the interview, then leading questions are a good method. In the video tape you will see samples of leading questions regarding the entry into the confined space, which is the subject of the complaint being made in this interview. After discovering what the witness was relating, leading questions were useful to repeat and confirm an understanding of what was being stated.

3. WITNESS ABILITY TO PERCEIVE, RECOLLECT AND RELATE

The final component of an interview, of course, is the ability of the witness to perceive, to recollect and to convey the information There are a couple of factors that relate to these abilities. There are factors within the witness or person being interviewed him or herself, and there are factors within the environment. These should be kept in mind not only for conducting an interview, but also for cross-examination should you ever have to do that.

The factors within the witness include such things as stress, sensory acuity, age, mental or physical condition, intoxication, fatigue. Also, the significance of the event will be of importance. If an event is an everyday occurrence, then it is much less likely to be perceived as important, and may not be remembered at all. Expectations are also an important factor here. If a person is expected to remember a certain thing, then it 15 more likely that they will remember it.

The environmental factors relate very much to the factors that are within the witness or person being interviewed. Environmental factors that have a bearing on a person's ability to perceive or recollect include the lighting, the speed at which the event occurred, the noise levels, how close a person was to the perceived object or action, and whether there were any simultaneous occurrences.

C. INTERVIEWING - HOW TO DO IT

After reviewing very elementary psychological factors and the components of and basic techniques for an interview, it is important next to discuss how to carry out the interview. There are three parts of any interview. The first part of the interview consists of having the person interviewed identify the problem. The second part of the interview is to review chronologically and spatially with the person the story that they have just told you. The third part of the interview is to develop the legal theory and then to verify the information which you have been given.

1. LET THE WITNESS IDENTIFY THE PROBLEM

At the beginning of the interview, when the person identifies the problem, begin with an open-ended question. You may ask what you can do for the person, what problem he or she 'nay have, or what it is that they would like you to do. It is very important to let a person fully speak at this time. Often a witness or person being interviewed may become impatient at being asked small details at the very beginning. If they can tell you what the problem is, if they can get it off their chest, then you will be able to pick up the details in depth later. This telling may only take a minute or two.

2. GO BACK OVER THE STORY

a. GENERALLY
When you reach the second stage of the interview, when you are going to review with the person in detail, chronologically and/or spatially, the facts he or she has just related, you should begin with some kind of explanation. The explanation should include:

(1) identifying yourself more fully; and,

(2) explaining that the interview will take a while to complete because you will be taking notes, you want to be sure that you get the information down correctly, and comprehensive details help Cal/OSHA inspectors perform more thorough and complete inspections.

You should also explain that you are going to review some of the details already related before you complete the interview, and to review any questions on the interview form to see if you have omitted anything. Finally, you will try to assure that the person being interviewed has conveyed everything necessary. You should also let the person know that then you will ask them to sign what it is that you have taken down.

You may say additional things like, "be patient with me," depending on what particular problems the person being interviewed expresses with your continuing at that moment.

It is at this point that if a person is on a coffee break, or is in some position where they cannot continue the conversation, that you will have had to develop sufficient trust or good will with them. If you can do this, then you will be able to get from them their name and a home phone number, and a time when you can call them back. Building trust is the key here.

b. SPECIFICALLY
When you go over or review the details, there are a number of techniques that you might use.

(1) PART 1 OF THE COMPLAINT FORM
This is the substance of the complaint. There are two types of complaints. You can describe something that occurred just once (an incident or accident), or you can describe something that is ongoing.

Complaints are usually made up of stories. The story is recorded in Part 1 of the complaint form. A copy of the form is attached.

(a) DESCRIBING AN EVENT
When describing something that has already occurred, you should present the information in a time sequence. You want to make each reader of the complaint hear and see what happened during the accident, incident or event.

You should pretend that you are making a movie of the event. Begin with an empty stage, turn on the lights, paint the scenery (machines, ventilation devices, screens, etc.), populate the stage (how many and what workers are exposed, where are they located, what management people are present, etc.), costume the characters (what protective clothing, equipment, respirators, etc.), provide them with props (what physical items are involved in operating the machinery, etc.), and turn on the camera.

Don't forget the sound. Background noise is as important as a conversation. After all, it is possible for the background noise to be so loud that it constitutes a violation. Or the background noise may, in fact, make it difficult for someone to hear what it is that they said they heard.

Ask who, what, where, when and how. Most of all, try to find out why something occurred. When describing an event, note what each of the characters says, hears, sees and does. Look at the types of questions contained in Part 1 of the Complaint form for guidance.

(b) DESCRIBING AN ONGOING CONDITION
When describing something that is an ongoing problem; you should present the information in a spatial sequence. You want to make each reader of the complaint understand what steps are involved in manufacturing the product(s) made at a company.

Again you must pretend you are making a movie of the process. Use all the ideas set forth in paragraphs above, but understand that you will have to report many different scenes.

The first scene is the arrival of the raw materials that are being used at the workplace. You should inquire about how those materials move around the workplace until the final product is shipped out. If you do this, then you will have a thorough description of the work process and the hazards involved. Don't forget that maintenance work and emergencies are a part of the process.

Begin the complaint by drawing a diagram of the property. Include the machinery that is relevant. Name the rooms where work is done. You can call different parts of a large room Area A,B,C, etc. so that you can later easily refer to special locations. Then follow the topics set forth below.

Remember that even when a worker thinks s/he only wants to complain about an event, you should ask about information regarding ongoing conditions as well. It is very important for us to have a full and complete picture of the health and safety problems at a workplace.

As to each aspect of the work, you should you should address the following topics:

(i) WORK DONE AND A DESCRIPTION OF THE HAZARDS INVOLVED
Describe the nature of the job. What is the work done at this location? Begin with the first stage of the process and describe it. Identify on the diagram the area where this work occurs. What are the physical and chemical agents involved here? How are workers affected? How long has this condition existed? Does the worker feel it will continue to exist? How long?

(ii) EXPOSURE INFORMATION
How many workers are here (note the number on each shift)? Do workers stay at this location? How often does any given process/hazard occur? Daily/weekly/monthly? Does it occur all the time each day (if daily), or all the time during one day a week (if weekly), etc.? How many hours a day, on the average, are workers exposed? Does the exposure occur only or usually at nights? On weekends?

Who is exposed? Are others in the area also exposed? Can we contact these workers and how?

(iii) ILLNESSES OR INJURIES
What symptoms have been exhibited by the workers here? What injuries have been sustained? Who has been treated? When? Where? By whom? Can we contact these workers and how? If possible, get medical release forms signed so that Cal/OSHA can obtain records to prove there is a hazard and a violation. The information is confidential.

(iv) A DESCRIPTION OF ANY ENGINEERING CONTROLS AND WORK PRACTICE CONTROLS USED TO MINIMIZE EXPOSURE
What engineering controls are now in existence to help combat the unsafe or unhealthy condition? What work practices are now in existence to help combat the unsafe or unhealthy condition?

(v) A DESCRIPTION OF ANY PROTECTIVE EQUIPMENT/CLOTHING USED TO MINIMIZE EXPOSURE, ANY RELATED TRAINING, AND WHO PAYS FOR THESE ITEMS
Describe the protective equipment and clothing that is worn to help combat the unsafe or unhealthy condition. Describe what training workers have received regarding the respiratory protective equipment/clothing. Who pays for the items?

(vi) SPECIAL ISSUES
Describe here any special concerns that you cannot figure out where else to record. Include here such things as whether the employer has an accident prevention program: Does the employer have a training program that addresses general safe work practices and hazards unique to a job assignment, and does the employer have a scheduled periodic inspection program of the workplace designed to identify and correct unsafe conditions and work practices?

Include here problems regarding access to medical and exposure records: Have workers or their representatives tried to obtain materials and been denied access? Include here problems regarding such things as labelling and worker right to know: Does the worker know the names and properties of the chemicals with which s/he is working? Have workers been trained re this?

(2) PART 2 OF THE COMPLAINT FORM
This part contains information about the person who is complaining or reporting another persons complaint. Answer as fully as possible.

(3) PART 3 OF THE COMPLAINT FORM
This part contains information regarding any labor organization(s) at this business establishment. Answer as fully as possible.

(4) PART 4 OF THE COMPLAINT FORM
This part contains information to show 'whether the employer knew of the unsafe or unhealthful condition. Knowledge may be shown in a number of ways. Knowledge is attributable to the employer if any of his/her agents had knowledge.

(a) PRIOR COMPLAINTS
Relate each and every specific complaint made about this unsafe or unhealthy condition in the past. Include not only complaints that this industrial worker have made, but also complaints that have been made by other workers about this same situation. Be sure to state as best possible:

(i) When the complaint was made?

(ii) To whom was the complaint directed?

(iii) Who made the complaint?

(iv) Who else was present who may have overheard? Was it ever put in writing? Supply a copy if possible.

(v) Where was the complainant when s/he made the complaint?

(vi) What was the substance of the complaint? Include as much detail as possible.

(vii) What was the response of the employer? Include the exact words if possible.

If anything is in writing (health and safety committee notes, etc.), ask for copies to accompany the complaint.

(b) ACTIONS OR STATEMENTS
What actions or statements show that the employer knew? These may be admissions verbally or admissions because the employer attempted to correct the situation, etc.

Detail these as set forth above.

(c) EMPLOYER'S PREVIOUS CONTACTS WITH Cal/OSHA
Previous contacts with Cal/OSHA may have concerned the same situation. Inquire so the old files will be reviewed before the inspection.

(d) OTHER WAYS TO INFER KNOWLEDGE
Prior events which are similar to the subject of the current Cal/OSHA complaint are helpful to show knowledge. If such were set forth above, do not repeat them. If not, detail them in the same manner as above.

(5) PART 5 OF THE COMPLAINT
Complaints to other government agencies should be noted here. Past and current complaints concerning anything related to the substance of the current complaint may provide evidence of prior knowledge on the part of the employer. Also many agencies want to work co-operatively on similar problems which concern one employer. Include sufficient detail so that Cal/OSHA can find out more information by calling the right person at the right agency using the right reference information.

(6) SAMPLES, LABELS, MATERIAL SAFETY DATA SHEETS, ETC.
This kind of information is very helpful. If a worker can submit these items for analysis before the inspection, then the inspector will be able to look and test for that when s/he inspects. Remind the worker not to violate any company rules when obtaining this material.

Be sure material samples are handled carefully; you might want to consult a CSE or IH on handling. Identify precisely where and when the samples were obtained when such are received in the office.

3. DEVELOP THE LEGAL THEORY AND VERIFY INFORMATION
The third step is to develop the legal theory and to verify the information. Since the form that is used here, the Complaint form, contains some of the legal theory, you do not have to think of your own legal theory. Just be sure to cover the areas on the Complaint form.

You will see in the video tape the interviewer say to the person "Now, I'm going to go back over the form, and see if thee is anything I've left out." You can say this and then just go over the relevant questions for which you do not have any answers.

Also, if there is some information which you have, and about which you still feel confused, you may want to review the facts once more at this point.

4. INTERVIEWING TIPS

a. ANYTHING MORE?
It is important to ask a person whether there is anything more. In doing this it is often helpful to repeat a certain number of things that they have just said and to ask them whether this is everything, or whether there is something more.

b. START AT THE BEGINNING
Also, you should be aware when people relate an incident, they will often begin in the middle. You will then have to back them up and explain to them that it is really important that you start this incident from the beginning. You will also see this happening in the tape. One of the things that you may find interesting is that by the end of the interview, the person who is being interviewed may actually try to think about the very first thing that occurred in any given sequence.

c. BE CURIOUS
Be curious. Visualize what it is the person is saying. Try to hear what it is that they're talking about. Ask enough questions so that you can understand what is going on and ask WHY.

d. LEGAL ISSUES

HEARSAY
Identify the hearsay. Think about how s/he knows the answer to the questions that you are asking. Did s/he actually witness the event or did someone tell him/her about it?

You may describe a situation that a worker did not witness. You should, however, make clear in the complaint that s/he is not the eyewitness. You should obtain the name and a means for Cal/OSHA to contact the person who is the eyewitness. Such may be necessary if an inspection warrant is demanded by an Employer and if the Employer contests any citations.

IS THE COMPLAINT, IF PROVEN, A VIOLATION? Do not worry about whether the degree of the problem is sufficient to constitute a violation. Cal/OSHA will take measurements and determine if there is a violation. However, remind the worker that it is his/her responsibility to assure that Cal/OSHA knows whether or not it is taking measurements of the hazard that the worker described int he complaint. If the company slows down, stops or otherwise changes the nature of the operation when the Cal/OSHA inspector is present, then the worker must so inform Cal/OSHA. Otherwise the evidence Cal/OSHA finds will not be a true reflection of the conditions that the worker experiences every day.

D. WORKER INTERVIEWS ARE EVIDENCE IN A LEGAL CASE

Before ending this presentation, it is important for you to understand that the information you gather from an interview is part of a legal case. A legal case, to begin with, is not a search for truth, but rather a presentation of different versions of a set of events. I look at a case as having 4 sets of facts: 1) facts to show the violation, 2) facts which corroborate the facts of the violation, 3) facts to show the employer's defense, and 4) facts to contradict the facts that are presented by the employer in his/her defense.

Of course, you don't obtain all versions during an interview with a single witness, nor even with the interviews you will do of all witnesses. But realize that when you obtain information during an interview, that any information bearing on any of these 4 versions of the facts is extremely helpful. PLEASE ALSO WRITE ALL INFORMATION DOWN so whoever reviews the file will know about leads they must follow.

In closing, it is critical to know the employer's defense(s). If you know what the employer will say, then you can do further investigation to look for facts to contradict (or to verify) the employer's defense(s), in addition to investigation that establishes your prima facie case. So when a witness says that s/he knows what the employer will say -- listen carefully and pull out that information. Find out whether the employer is going to blame the worker -- say the worker was negligent -- or whether the employer will attribute the unsafe or unhealthful condition to someone or something else.

And don't forget this is a very delicate part of an interview, particularly because the worker may be hesitant to tell you they did something wrong. Encourage the worker to talk about this by reminding them the employer is ultimately responsible for safety and health, and you realize there are many reasons why a worker may have to take short-cuts, such as being "pushed" by the boss.

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