OSHA’s Big-Data Agenda  
Agency’s Rulemaking Spree has Industry on Edge  
B Y T R E Y B A R R I N E A U  
rom stringent new injury-re- struction, to send injury and illness take his agency 140 years to inspect  
porting requirements to a con- data straight to OSHA every year. The every U.S. workplace at its current  
troversial crystalline silica rule agency will then post that informa- staffing levels. That’s because nation-  
F
that’s led to legal challenges, tion on its website. The new require- wide, there are only 1,840 inspectors  
the Occupational Safety and Health ments take effect in August 2016, with to cover eight million workplaces,  
Administration (OSHA) has been busy phased-in data submissions begin- according to the 2016 Death on the  
lately.  
Maybe too busy, if you ask many  
ning in 2017.  
According to OSHA, the concept is  
Job report from the AFL-CIO.  
“I think the general purpose of  
business owners.  
akin to the sanitary grades that restau- the new rule is to have information  
“I think most companies are kind rants display.  
flowing into (OSHA) so they’re more  
of overwhelmed by all this in an ‘oh  
“Since high injury rates are a sign efficient in getting out and making  
my gosh, Big Brother’ kind of way,” of poor management, no employer inspections of companies they view as  
says Terry Burkhalter, an authorized wants to be seen publicly as operating having potential problems based on  
OSHA instructor and vice president of a dangerous workplace,” says David what they’re seeing in the OSHA logs,”  
risk control services with Willis Towers Michaels, assistant secretary of labor Burkhalter says.  
Watson in Knoxville, Tenn.  
for occupational safety and health.  
While “big data” and better target-  
The agency clearly does important “Our new reporting requirements will ing of enforcement might help, those  
work that saves lives. According to the ‘nudge’ employers to prevent worker chronic low staffing levels could make  
Bureau of Labor Statistics, 4,821 work- injuries and illnesses to demonstrate implementing the new rule difficult,  
ers died on the job in 2014. By com- to investors, job-seekers, customers says Burkhalter.  
parison, when the government created and the public that they operate safe  
“Obviously, that’s going to be a  
OSHA 43 years ago, there were more and well-managed facilities. Access to whole lot of information that OSHA’s  
than 14,000 occupational fatalities in injury data will also help OSHA better about to receive, and they’ve been  
the U.S. each year in a workforce that’s target our compliance assistance and pretty swamped since January 1,” he  
about half the size of today’s.  
enforcement resources at establish- says. (That’s when the new Severe  
And while there’s little doubt that ments where workers are at greatest Injury Reporting Program went into  
dozens of OSHA regulations make risk, and enable ‘big data’ researchers effect. It requires employers to report  
workplaces safer in ways most people to apply their skills to making work- work-related amputations, in-patient  
rarely notice, the current wave of reg- places safer.”  
ulations should grab a lot of attention Burkhalter says there’s an admira- within 24 hours.) “That’s pretty much  
from manufacturers and installers of ble motive behind the new rule.  
doors and windows. DWMsurveys the “I like the accountability factor,” he  
hospitalizations or the loss of an eye  
overwhelmed them.”  
A host of questions arise around  
most important recent changes and says. “In the past, OSHA didn’t know compliance. What will huge corpo-  
how they will affect the industry.  
your safety record unless for some rations have to do to meet the new  
reason they came in there or they peti- requirements?  
Put Everything Online  
tioned you to send it in for the Bureau  
“If they’ve got 142 locations,  
Perhaps the biggest recent change of Labor Statistics surveys. But really, how are they going to report that to  
is a new requirement that will put there was no penalty if you didn’t.” OSHA?” Burkhart said. “One report  
the entire injury and illness history of However, he says the new flood or 142 reports? There will be a lot of  
most U.S. companies into a search- of injury and illness data could be discussion around that.”  
able online database. grounded in more mundane con- It’s also possible that the new  
In May, OSHA implemented the cerns, such as an effort to overcome reporting rule would affect smaller  
Improve Tracking of Workplace one of OSHA’s most persistent prob- companies more than larger ones,  
Injuries and Illnesses” rule. It requires lems understaffing.  
because they’d be more likely to  
employers in high-hazard industries,  
In 2015, OSHA’s Michaels told a attract OSHA’s attention.  
including manufacturing and con- congressional hearing that it would  
“If I’m G.E. and have ten accidents  
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Door & Window Market  
www.dwmmag.com  
The Bottom Ten  
The most OSHA safety citations in the building materials industry:  
Based on OSHA statistics from January 2011 to March 2014.  
Forklifts.......................................................71 Electrical................................20  
Failures of hazard communications.....38 Fire Extinguishers................18  
Respirators................................................29 Woodworking.......................18  
Wiring .........................................................28 Exits........................................18  
Guardrails/holes.......................................22 Machinery..............................15  
Source: The Learning Factory  
in 500 plants, I can kind of hide that  
in the numbers,” Burkhalter says. “It  
looks like a much smaller percentage.  
Danger Zones  
These are the most frequently injured body parts in the fenestration  
But if I only have one facility and  
there’s two incidents, that could look  
really bad to OSHA. Right now, we  
don’t know the criteria they’re going to  
use to inspect.”  
industry, according to Terry Burkhalter, an authorized Occupational  
Safety and Health Administration (OSHA) instructor and trainer:  
Another major area of concern is  
the rising use of temporary work-  
ers. According to a 2015 study by the  
Center for Construction Research and  
Training, temps represent about 13  
percent of workers in construction  
and about 3.5 percent of laborers in  
manufacturing. If one of them gets  
hurt inside your facility or on your  
jobsite, it’s on you.  
eyes  
shoulders  
Burkhalter.  
One door and window manufactur-  
er has already been hit with citations  
involving temp workers.  
Temps go on your OSHA log,” says  
wrists  
arms  
In September 2015, Dyke Industries,  
along with its staff ng agencies Staff  
Right Inc., and Select Staff ng, received  
a total of $66,000 in proposed penal-  
ties from OSHA.  
backs  
hands  
“All workers, including temporary  
employees, deserve a safe and healthy  
workplace,” Bill Fulcher, director of  
OSHA’s Atlanta-East Area Off ce, said  
in a release.  
fingers  
&
thumbs  
There are other legal, ethical and  
moral issues surrounding the new  
rule, which several organizations  
pointed out when it was announced.  
knees  
“OSHA created a rule that does  
nothing to achieve its stated goal  
of reducing workplace injuries and  
illnesses and ignored the concerns  
from industry that this rulemaking  
will have unintended negative conse-  
quences,” said Greg Sizemore, the vice  
continued on page 22  
Source: Willis Towers Watson; presented at the AAMA Fall Conference in October 2015.  
June/July 2016  
www.dwmmag.com  
21  
OcoSnHtinAu’sedBfirgo-mDaptaageA2g1enda  
president of health, safety, environ- (CWS), which participated in the that do not ref ect an employer’s safe-  
ment and workforce development for rulemaking process for electronic ty culture are posted. …Publicizing  
Associated Builders and Contractors recordkeeping, said the new measure this data makes the mere recording  
(
ABC). “In departing from its current will hurt U.S. businesses.  
of any injury an act of disclosure with  
‘no fault’ recordkeeping system, OSHA  
“Without authority to do so, OSHA associated negative impacts.”  
has empowered itself to disseminate intends to post employer, location  
Other problems that could arise  
records and data to the public that and incident specif c injury data,” include worker recruitment and reten-  
fails to show the complete narrative of CWS co-chairs Marc Freedman and tion, especially at a time when the  
a company’s safety record or its efforts Amanda Wood said in a joint state- manufacturing and construction sec-  
to promote a safe work environment.” ment. “The CWS is especially con- tors are facing unprecedented labor  
Sizemore also said OSHA has cerned about the damage that could shortages; negative advertising that  
“exceeded its authority by forcing come from the disclosure of sensitive uses information from the new OSHA  
companies to reveal conf dential and proprietary information – which database; and organizing efforts by  
business details to the public” and companies go to great lengths to labor unions.  
will give competitors undue access protect. Just as troubling will be the  
to business processes that should mis-characterization that will result ing up the safety record of a compa-  
remain conf dential.” when incidents, such as bee stings, ny when they’re trying to organize,”  
“Unions are notorious for throw-  
The Coalition for Workplace Safety slips and falls, and even heart attacks Burkhalter says. “That’s one of the big  
Be Careful Out There  
happened and what you can do to laminated. It may be thicker than you  
prevent it from happening again, Burk would’ve guessed.”  
said. Additionally, employees should be Stay Inside the Forklift  
assured that they won’t be punished, Forklifts are immensely useful, but  
because it might make them afraid to they’re also the No. 1 workplace haz-  
report accidents.  
ard, DWM blogger Jim Plavecsky wrote  
Experts in the fenestration  
industry share their tips for  
a safer workplace.  
Watch for Workarounds  
in a recent online column. He cited  
Burk says these jerry-rigged shortcuts OSHA statistics showing that 80 to 100  
are a sure sign that something is workplace deaths a year are attribut-  
wrong. “If you’re walking around the able to the motorized vehicles. One  
plant and see things like sticks and reason they’re so dangerous is because  
Don’t Be Complacent  
MikeBurkofFenestrationFundamentals pokers, people working around these they’re prone to tipping over. When  
LLC, who chairs the Insulating Glass things, ask, ‘What’s wrong with this they do, many operators panic and try  
Manufacturers Alliance’s glass safe- process?’” he said. “If you f nd this to exit the vehicle, resulting in death or  
ty awareness program, told members stuff in the working area, remove it, severe injury. Plavecsky says it might be  
at a recent meeting of the American and f nd out why they’re using the counterintuitive, but it’s much safer to  
ArchitecturalManufacturersAssociation device. They can get pretty creative stay inside a forklift when it tips over.  
that it’s important to remain vigilant when they don’t to want shut down Watch the Wiring  
about conditions in your plant, as well production.”  
as the state of your employees’ personal Beware the Bottlenecks:  
Exposed wiring is at the forefront of  
potential OSHA citations, said Regina  
protection equipment (PPE).  
Wear the Best  
Places in a window plant where produc- McMichael of the Learning Factory  
tion crawls to a halt and materials stack during a recent safety webinar. So  
Speaking of PPE, Burk said glass com- up can be dangerous, says Mike McHugh cover it up. “For the kind of exposures  
panies should ensure they’re using the of Integrated Automation in Bedford we have, the only appropriate solution  
latest and greatest.” Also, be clear Heights, Ohio. Glass is the most notable is to engineer the hazard away,” she  
on the purpose/capabilities of each hazard. “We have been creative with said. “The best possible solution [could  
piece of PPE. “Stress the fact that it’s glass loading,” he says. “That and gas be] to quite simply put a cover on  
not ‘cut-proof,’ but that it’s ‘cut-resis- f lling are the biggest bottlenecks in the [exposed wiring].”  
tant,’—things like that,” he said.  
plant—mainly glass loading.”  
Take a Hike  
Teachable Moments  
Glass is Heavy  
McMichael also urged business owners  
Close calls and near-misses inside a The weight of glass can’t be under- to frequently inspect their facilities for  
plant can be scary, but it’s important estimated, Burk said. “You can’t just problems. “Walk your site,” she said.  
to f nd out what happened, why it guess. It may be a triple unit, it may be “Look and f x as you go.”  
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Door & Window Market  
www.dwmmag.com  
When Tragedy Strikes  
While the fenestration industry generally  
sticks they use. Everybody knows the  
current administration is very pro-  
union. Who’s going to have access to  
this information?”  
has an excellent safety record, there have  
been at least two accidental deaths at busi-  
nesses that manufacture doors and windows  
during the past two years.  
But Burkhalter says the biggest  
concern among lawyers he’s talked  
to is the security of the information  
that’s being sent to OSHA.  
Tim Harris: The technical services man-  
ager for Quanex Building Products died in  
April 2015 in Glendale, Ariz., while visiting  
a door and window manufacturer. A forklift  
was involved in the accident.  
“As with any program you roll out,  
you have to kind of wait and see, but  
how secure is this information from  
hacking, and who’s got oversight of  
it on the other end?” he says. “Other  
than just the privacy issues, you’ve got  
the potential for people losing infor-  
Steven Amdall: The maintenance work-  
er was crushed to death at an aluminum  
extruding plant near Dallas in November  
2014 while working on a 9-inch press line.  
The National Association of Home 23. The construction industry has  
mation or making it available where it Builders also said it’s troubled by the until June 23, 2017 to comply, while  
shouldn’t be.”  
rule.  
the general industry has until June  
NAHB has long advocated the 23, 2018.  
importance of the rule being both  
The Silica Rule  
In March, OSHA created a big stir technologically and economically fea- Whistleblowers Anonymous  
in the fenestration industry when it sible,” says Ed Brady, NAHB chairper- Whistleblowers have been a big  
issued the f nal version of its contro- son and a home builder and develop- focus for OSHA since it was estab-  
versial silica rule, which aims to limit er from Bloomington, Ill. “While we’re lished in 1970. The agency safeguards  
workers’ exposure to crystalline silica. still reviewing the f nal rule, we’re con- workers from retaliation for provid-  
The rule, which has been in the cerned that it may not adequately ing protected information to their  
works since 2013, reduces the permis- address these issues and take into employers or the government.  
sible exposure limit (PEL) for respira- consideration real-world application.”  
It’s also an area that has the poten-  
ble crystalline silica to 50 micrograms Last year, the Construction Industry tial to generate the most revenue for  
per cubic meter of air, averaged over Safety Coalition (CISC) released a the cash-strapped agency. Most whis-  
an eight-hour shift. It also requires study claiming the rule will cost the tleblower penalties include f nes that  
employers to implement engineering U.S. construction industry $5 billion can range from f ve to six f gures.  
controls, offer medical exams and per year—roughly $4.5 billion per year That’s on top of years of back pay for  
develop a control plan.  
The fenestration and construc- lition cautioned that the f awed cost  
more than OSHA’s estimates. The coa- the workers involved.  
“The thing about the whistleblower  
tion industries are pushing back estimates ref ect deeper problems cases—that’s the million-dollar cup  
hard against the new regulation, and with the rule and urged the federal of coffee right there,” says Burkhalter.  
in April, eight construction indus- agency to reconsider its approach.  
try organizations f led a petition for “The cost and impact analysis from ordered Jersey Window Factory &  
review of the rule with the U.S. Court OSHA ref ects a fundamental misun- Building Supply Inc., of Newark, N.J.,  
of Appeals for the Fifth Circuit. derstanding of the construction indus- to reinstate a truck driver who was  
Other groups expressed concern try,” reads a CISC statement. “The f red after reporting safety concerns  
and criticism. OSHA analysis included major errors about the commercial vehicle he was  
Glass Association of North America and omissions that account for the large driving. It also ordered to company  
For example, in April 2012, OSHA  
(
GANA) executive vice president Bill discrepancies with the CISC report.”  
to pay him nearly four years in back  
Yanek says silica is indispensable to  
OSHA says approximately 2.3 mil- wages and bonuses, plus $18,000 in  
f at glass production, adding that the lion workers, mostly in construction, compensatory damages.  
industry has worked hard to reduce are exposed to respirable crystalline However, despite some high-pro-  
workers’ exposure to it. silica in their workplaces. It estimates f le cases, OSHA’s track record with  
Requiring the f at glass manufac- the rule “will save over 600 lives and whistleblower cases isn’t impressive.  
turing industry to completely rede- prevent more than 900 new cases of In 2014, 1,865 whistleblower com-  
sign their operating furnaces and silicosis each year” and “is projected plaints were f led with OSHA, accord-  
other manufacturing equipment and to provide net benef ts of about $7.7 ing to statistics from Willis Towers  
processes is not merely unreasonable billion, annually.”  
Watson. But only 13 were determined  
as a matter of policy but also beyond  
OSHA’s legal authority,” says Yanek.  
The construction and general  
industry standards took effect on June  
continued on page 24  
www.dwmmag.com  
June/July 2016  
23  
OcoSnHtinAu’sedBfirgo-mDaptaageA2g3enda  
to have merit, 954 were dismissed and tigative news organization Fair  
In March 2012, Richard Fairfax,  
4
27 were withdrawn. A similar pattern Warning, Darrell Whitman claims he OSHA’s deputy assistant director,  
extends back to at least 2010.  
lost his job as an investigator with sent a memo to the agency’s region-  
Again, staff ng is a major concern. A the San Francisco regional off ce of al administrators and Whistleblower  
010 story from Mother Jones detailed OSHA’s Whistleblower Protection Program managers that laid out  
2
the heavy workload for OSHA’s small Program because he complained to acceptable and unacceptable safety  
group of whistleblower investigators. agency officials—including Labor incentive programs.  
A whistleblower investigator can Secretary Thomas Perez—that many “Some employers establish pro-  
realistically handle six to eight cases legitimate whistleblower cases weren’t grams that unintentionally or inten-  
at a time, OSHA says. But in several being prosecuted.  
regions of the country, they average 20  
tionally provide employees an incen-  
tive to not report injuries,” Fairfax  
wrote. ”For example, an employer  
might enter all employees who have  
or more,” the magazine reported. “In Incentives—Positive  
one region, the average is a whopping and Negative  
Does your workplace have an not been injured in the previous year  
32 open cases—and one investigator  
had 69, according to data obtained incentive plan in place that rewards into a drawing to win a prize, or a  
under the Freedom of Information Act.” employees for accident-free days? team of employees might be award-  
Ironically, perceived problems (Think paycheck bonuses, small priz- ed a bonus if no one from the team  
within the program have even led to es or even pizza parties.) How about is injured over some period of time.  
a whistleblower lawsuit recently being blanket drug testing requirements in Such programs might be well-inten-  
f led against OSHA by one of its for- the aftermath of an accident? If so, you tioned efforts by employers to encour-  
mer employees.  
might want to reconsider both poli- age their workers to use safe practic-  
According to a report from inves- cies in light of recent OSHA actions.  
es. However, there are better ways to  
encourage safe work practices, such  
as incentives that promote worker  
participation in safety-related activ-  
ities, such as identifying hazards or  
participating in investigations of inju-  
ries, incidents or ‘near misses.’”  
The Good Guys  
While OSHA violators often grab the head-  
lines, the agency also thinks it’s important to  
recognize companies that get safety right.  
OSHA’s Voluntary Protection Program (VPP)  
Post-accident drug testing, mean-  
while, could become a thing of the  
past under OSHA’s new reporting rule,  
because the agency thinks it might  
make employees think twice about  
going on the record with injury claims.  
“The final rule does prohibit  
employers from using drug testing (or  
the threat of drug testing) as a form of  
adverse action against employees who  
report injuries or illnesses,” OSHA’s  
new rule reads. “To strike the appro-  
priate balance here, drug testing poli-  
cies should limit post-incident testing  
to situations in which employee drug  
use is likely to have contributed to the  
incident, and for which the drug test  
can accurately identify impairment  
caused by drug use. For example,  
it would likely not be reasonable to  
drug-test an employee who reports a  
bee sting, a repetitive strain injury, or  
an injury caused by a lack of machine  
promotes effective worksite-based safety and  
health,” according to OSHA’s website. “In the  
VPP, management, labor and OSHA establish  
cooperative relationships at workplaces that  
have implemented a comprehensive safety and  
health management system. Approval into VPP  
is OSHA’s off cial recognition of the outstanding  
efforts of employers and employees who have  
achieved exemplary occupational safety and  
health.”  
Here are some companies in the fenestration  
industry that participate in the VPP:  
Azko Nobel  
Covestro  
Dow/DuPont  
H.B. Fuller  
Huber Engineered Woods  
Jeld-Wen  
Marvin/Integrity  
Ply Gem  
ProVia  
Sherwin Williams  
Valspar  
guarding or  
malfunction.”  
a
machine or tool  
Source: OSHA  
continued on page 29  
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Door & Window Market  
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OcoSnHtinAu’sedBfirgo-mDaptaageA2g4enda  
Helpful  
Regulations  
Unions and OSHA  
Can OSHA take part in union  
activities? For decades, it seemed the  
answer was a def nite no. But that  
might be changing.  
In February 2013, OSHA’s Fairfax  
sent a letter of interpretation to Steve  
Sallman, a health and safety specialist  
with the United Steelworkers Union,  
asserting that union representatives  
can accompany OSHA inspectors at  
non-union worksites.  
Many OSHA regulations have  
helped the door and window industry. They’ve created safer  
workplaces and increasing production of important materials.  
In 1974, the agency established a permissible exposure limit of  
1 part per million for workers exposed to vinyl chloride, a f ammable,  
carcinogenic gas that’s used to make polyvinyl chloride (PVC), or vinyl. OSHA’s  
standard slashed worker exposure to the gas and made the PVC production  
process more eff cient. Thanks in part to that, sales of vinyl windows took off,  
and they now represent about 70 percent of the U.S. market, according to the  
American Architectural Manufacturers Association (AAMA).  
In 1989, OSHA issued the lockout/tagout standard. That helps protect  
employees from the unexpected start-up of machinery and equipment  
during maintenance. According to OSHA, the standard prevents an estimated  
120 fatalities and 50,000 injuries each year in manufacturing facilities, includ-  
ing those for doors and windows.  
According to Ben Huggett of the  
Littler law f rm in Philadelphia, “this  
ruling contradicts the plain lan-  
guage of OSHA’s governing regulation  
as well as longstanding agency  
OSHA has also established many construction-related safety standards that  
make window installation much less dangerous in areas such as fall prevention  
and personal protection equipment (PPE).  
guidance and past interpretations.  
OSHA’s action in allowing unions and  
other organizations to participate  
in its inspections, even where they Health Act to enforce measures at  
In November 2014, Central  
do not formally represent a majori- other locations operated by a compa- Transport LLC was facing $330,800  
ty of employees, threatens to disrupt ny that’s violated OSHA regulations. in OSHA f nes for four violations at  
OSHA’s primary mission by embroil- It’s called enterprise-wide abatement, its shipping terminal in Billerica,  
ing the agency in representation orga- and it’s not uncommon in negotiated Mass. Central Transport contest-  
nization and community disputes,” settlements that OSHA reaches with ed the decision with the indepen-  
Huggett wrote in an April 2013 post on violators. However, the case involv- dent Occupational Safety and Health  
his f rm’s website.  
Another Littler attorney, Maurice LLC might be different, because it that year.  
Baskin, testif ed before the House involves a business that OSHA is in In its complaint to the Commission,  
Subcommittee on Workforce “contentious litigation” with, accord- the Labor Department claimed that  
Protections in February 2014 that ing to Business Insurance. Central Transport failed to com-  
ing freight hauler Central Transport Review Commission in December of  
Fairfax’s letter violates the National  
Labor Relations Act and the one.  
Occupational Safety and Health Act.  
Burkhalter says keep an eye on this ply with OSHA standards for fork-  
lift safety at locations other than  
“Several OSHA attorneys I work the inspected worksite. It sought to  
“By allowing outside union agents with feel this is a one-time event that enforce compliance at the compa-  
and community organizers access OSHA has chosen to publicize,” he told ny’s 170 facilities across the country.  
to non-union employers’ private DWM at the time. “However, it bears Central Transport then f led a motion  
property, OSHA is injecting itself in watching to see if it happens again. asking the Commission to strike  
to labor-management disputes and OSHA likes to publish severe violators. the department’s claim for enter-  
casting doubt on its status as a neutral I think this may fall more toward that prise-wide abatement, arguing that  
enforcer of the law,” Baskin said.  
At the same hearing, attorney  
end than a legal precedent.” the Occupational Safety and Health  
It could also be another example Act doesn’t allow it.  
Randy Rabinowitz presented the of the agency trying to stretch its staff  
pro-labor argument, saying that and funding as far as it can.  
Judge Baumerich denied Central  
Transport’s motion, ruling that the  
OSHA has always honored employees’ “The … ruling is part of what Occupational Safety and Health Act’s  
right to choose their own representa- appears to be OSHA’s attempt to provision for “other appropriate  
tives during safety inspections.  
expand its enforcement reach even relief” allows the department’s claim  
though its resources are limited,” for abatement at all locations where  
Enterprise-Wide Abatement” Travis Vance, an attorney with Fisher similar violations exist to proceed  
In December, Judge Carol Phillips in Charlotte, N.C., wrote in to trial.  
A. Baumerich ruled that the April at JD Supra Business Advisors.  
y
Occupational Safety and Health “Given a tighter budget, the agency Trey Barrineau is the editor of DWM  
Review Commission may have author- wants to remain effective while com- Magazine. USGlass assistant editor Nick St.  
ity under the Occupational Safety and pleting fewer inspections.”  
Denis contributed to this story.  
www.dwmmag.com  
June/July 2016  
29