OSHA said “X” and let’s see what happened

Updated 12/21/2010

Every two weeks, OSHA issues a mini-newsletter called Quick Takes about the agency’s activities and other worker health and safety news. The twice monthly electronic publication highlights 8-12 items and nearly always includes at least one report of a major enforcement action. I looked back at the OSHA Quick Takes from early 2010 and read gutsy language from OSHA chief David Michaels, such as:

“It is unfortunate but true that you need a sizable fine to get the attention of employers who don’t respect the lives of their employees.” (Vol 9, Issue 2)

I started to wonder what’s happened in some of these cases in the months after the forceful rhetoric.

Example 1: On January 14, 2010, OSHA announced sanctions against the retail store Home Goods for serious hazards including blocked fire extinguishers and fire exits. OSHA chief David Michaels compared the situation to the 1911 Triangle Shirtwaist fire that killed 146 garment workers. He said

“blocked fire exits can be deadly. It is that simple.”

OSHA proposed a $233,500 fine for no less than nine serious and six repeat violations.

Some individuals and groups took notice and even offense with the Assistant Secretary’s strong language. Mr. Jonathan Snare, who was acting OSHA assistant secretary during the GW Bush administration, has used the OSHA chief’s characterization of the employer’s action (here and here) to try to attract potential clients.

But, OSHA’s action was more than just rhetoric. An administrative law judge upheld all of OSHA’s violations. The penalty against this Home Goods site was reduced to (a still substantial) $124,950 and the case is now closed.

Example 2: In a February issue of Quick Takes, OSHA highlighted its enforcement case against the C.A. Franc construction company following the 40-foot fatal fall of a worker at a jobsite in Washington, Pennsylvania. OSHA chief David Michaels said the employer:

“knowingly and willfully failed to protect his workers from falling to their deaths. We will not tolerate this type of blatant and egregious disregard for the health and safety of workers.”

The agency proposed a $539,000 penalty for 11 willful violations. The company contested OSHA’s findings. The case remains open. The victim was Carl Beck, 29 of Butler, PA.

[Update 12/21/2010: A reader of TPH pointed out that I missed a critical part of OSHA’s enforcement case against this employer. OSHA also referred this case to the Department of Justice. The case was handled by the U.S. Attorney’s Western Pennsylvania Environmental Enforcement Task Force and they successfully prosecuted a criminal conviction against the employer, Christopher Franc. Here’s a DOJ news release about the June 2010 conviction, and a story in the publication In These Times. The lesson to me is to avoid relying too much on the data provided on OSHA’s website about its enforcement cases. The listing for this case indicates it is still open and there’s not a peep about the criminal conviction.]

Example 3: Other cases featured in OSHA Quick Takes don’t offer quotes from the Assistant Secretary, but instead from OSHA managers in field offices responsible for the investigations. In a case against Endres Processing LLC in Kansas City, Missouri, OSHA regional administrator Chuck Adkins said:

“There is no excuse for the lack of attention to accumulation of combustible dusts in any mill or grain elevator, especially given our nation’s history of such horrific combustible dust explosions resulting in a high number of worker fatalities.”

The agency proposed in mid-February a $137,500 penalty for three willful and four serious violations. Endres Processing contested OSHA’s findings and the case is still open.

Example 4: I couldn’t help but also notice an item in the February 15 (Issue 4) of Quick Takes describing the agency’s plan to revise the OSHA 300 log which is used by some employers to record work-related injuries. The agency notes:

“The rule does not change existing requirements for when and under what circumstances employers must record musculoskeletal disorders on their injury and illness logs. It would require employers to place a check mark in a column for all MSDs they have recorded.” (emphasis added)

Assistant Secretary David Michaels noted:

“Restoring the MSD column will improve the ability of workers and employers to identify and prevent work-related musculoskeletal disorders by providing simple and easily accessible information. It will also improve the accuracy and completeness of national work-related injury and illness data.”

Sounds like a simple, straightforward, common sense action, right??

As I’ve written before (here, here, here) the OSHA staff did their part to make this simple change, but the White House’s Office of Information and Regulatory Affairs (OIRA) is holding it hostage. OIRA has been “reviewing” this insignificant OSHA rule for more than five months. OIRA has a long history of interfering in worker safety and environmental health rulemakings, and it appears that nothing has changed in that office under the Obama Administration.

OSHA may have said the revision doesn’t change existing requirements and made the case for why it is necessary, but as long as the Labor Department allows OIRA to exert control over agency expertise and authority, OSHA can’t make this simple change happen.

Comments

  1. #1 Joseph L. Walker
    December 21, 2010

    Every issue of Protection Update, which is the International Safety Equipment Association’s quarterly insert to EHS Today magazine (in print and online), reports all of the OSHA citations of $100,000 or greater from the previous quarter in an effort to cast a spotlight on those organizations that ignore their responsibilities to keep workers our of harms way. You can check out Protection Update’s “OSHA $100,000 Club of Safety Citations” from http://www.ehstoday.com or http://www.safetyequipment.org. The next Protection Update will be published in the February EHS Today.

  2. #2 Ed Stern
    December 21, 2010

    Assistant Secretary David Michaels is probably right that “you need a sizable fine to get the attention of employers who don’t respect the lives of their employees.” But there is another way to get employers’ attention and to do justice when they knowingly and willfully fail to protect workers from fatal hazards on the job. In cases where workers are knowingly and willfully put at risk of death and the die, OSHA’s assessment of what happened should be turned over to the States Attorneys. Some of these cases show criminal negligence, which would justify indictments for negligent homicide or involuntary manslaughter (depending on state law). It is a state crime. And a few states are now prosecuting such cases.

  3. #3 Celeste Monforton
    December 22, 2010

    Joseph Walker,
    Thanks for sharing the info about EHS Today’s feature that reports all OSHA citations of $100,000 or greater. Here’s a link for readers who may not be familiar with it: http://ehstoday.com/images/ISEA_update-0710.pdf

    What I set out to do in my post (on a very, very small scale) was to follow-up on OSHA’s announcements of proposed penalties. No doubt a substantial proposed penalty may make a few headlines and may cause some employers to think twice about cutting corners on safety. I was curious to see whether some of these high-dollar proposed penalties had become final orders of the OSH Review Commission. If significant penalties, like the ones I highlight in my post, are ultimately upheld by the Review Commission, this would reinforce and substantiate the deterrent effect OSHA is trying to create with its enforcement program.

  4. #4 Celeste Monforton
    December 22, 2010

    Ed Stern,
    I added an update to my post that may be of interest to you. In the case involving C A Franc, OSHA did refer this case to the federal Dept of Justice. It was successfully prosecuted and the employer was sentenced to three years of probation and six months of house arrest. I would welcome any recent examples you have of State prosecutions of worker safety crimes.

  5. #5 Ed Stern
    December 23, 2010

    Celeste,

    Here is a 2010 state criminal prosecution for a worker death.

    http://www.eagletribune.com/newhampshire/x1587879842/East-Kingston-man-guilty-of-negligent-homicide

    February 10, 2010

    “East Kingston man guilty of negligent homicide
    Tree company owner faces three to seven years in jail
    By Jarret Bencks
    The Eagle Tribune Wed Feb 10, 2010, 02:09 AM EST

    BRENTWOOD — A jury yesterday found Maurice Buzzell responsible for the death of an employee, who was killed by a falling tree while working for Buzzell’s landscape company.

    It took the jury two and a half days to return guilty verdicts on charges of negligent homicide and reckless conduct brought against Buzzell by county prosecutors. Buzzell is the owner of Buzzell Tree Service in East Kingston. …”

    And here is a 2009 case:

    http://www.newyorkcriminallawyerblog.com/2009/01/ny_crane_operator_indicted_for.html

    “Posted On: January 5, 2009 by Jeremy Saland
    NY Crane Operator Indicted for Manhattan Accident: Criminal Charges Include Manslaughter, Criminally Negligent Homicide, Assault & Reckless Endangerment
    …”

  6. #6 seattle chiropractor
    December 28, 2010

    Neglectful businesses that take safety shortcuts and fail to protect employees should be subject to strict OSHA investigations and owe steep penalty fines.

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