Worker fatality in my hometown results in $12,000 penalty, third chance for employer to improve safety

On July 27, 2011, just a few miles from my home in San Marcos, TX, Mr. Margarito Guardado Resinos, 34, and Mr. Nelson Pineda were working together to erect a pre-engineered steel building frame on property owned by Thermon Manufacturing. The workers were employed by Jetka Steel Erectors of Katy, TX, a firm hired by Bailey Elliot Construction of Austin, TX, to perform certain aspects of the project. Just before noon on July 27, 2011 the metal structure collapsed, killing Mr. Resinos and injurying Mr. Pineda.

Federal OSHA safety officers investigated the fatal incident and issued citations and penalties to both Bailey Elliott Construction (here) and Jetka Steel Erectors (here.) The OSHA citations do not specifically describe that day’s events, but do hint at what went wrong:

The employer failed to implement a site-specific erection plan, and did not ensure that the manufacturer’s installation procedures for the pre-fabricated steel building were followed. This includes provisions for special bracing to stabilize the structure during the erection process.

The workers were using Genie S-65 aerial lifts, Genie 3268 scissor lifts, and two JLG 8042’s to lift and secure the steel beams and rafters. Some of the operators of the powered industrial trucks had not been certified as competent to operate the equipment safely.

Operators of two of the industrial trucks left them unattended with a suspended load of steel rafters located 50-200 feet from another industrial truck.

As I reported previously, this was not the first time Jetka Steel Erectors was subject to an OSHA inspection. In May 2011, the firm received citations for several serious safety violations observed at another jobsite. In exchange for the $12,000 penalty being reduced by half and being allowed to pay it off incrementally through December 2012, Jetka agreed to contact the free Occupational Safety and Health Consultation Service (OSHCON) within 60 days and request a site visit. We don’t know, however, whether Jetka Steel made that contact or the outcome of it. Employers who participate are promised confidentiality, even to the OSHA office with which they negotiated the settlement. All we know is six weeks after Jetka promised to get expert help to make its worksites safer for its employees, Mr. Resinos suffered the fatal work-related injury.

The OSHA citations issued following Mr. Resinos’ death described five serious violations by Jetka and proposed a $23,100 penalty. The company and OSHA reached a settlement, with OSHA cutting the penalty nearly in half and allowing Jetka to pay off the $12,000 fine in quarterly installments through June 2014. (The settlement agreement notes “Employer avers that due to its financial condition, it is unable to pay the full amount of the assessed penalties.”) In exchange, Jetka agrees to:

Fax on a quarterly basis to OSHA, for a one-year period, a list of its active jobsites.

Provide training to supervisors and other critical personnel on the safety and health requirements and hazards described in the citation.

Implement within six months, a “progressive disciplinary program to ensure employees and managers are held accountable for following and enforcing safety rules.”

Have a competent person who has the ability and authority to correct potential unsafe conditions, to conduct frequent and regular inspections of all jobsites, tools and equipment.

Provide within six months to at least one supervisor formal training in construction hazards, and send OSHA a written certification that such training has been accomplished.

OSHA is giving this employer a third chance to get its safety program in order, and expecting the company to report back on its progress. The last time OSHA gave Jetka Steel another chance, it didn’t know if the employer made good on its promise because interactions between companies and the independent State OSH Consultation programs are confidential.

It seems to me there’s an easy way for OSHA to make sure an employer holds up his end of the bargain. When a settlement agreement (which typically provide a substantial reduction in the monetary penalty) includes a provision for the employer to contact the free OSH Consultation program, OSHA could also instruct the employer to send the agency a copy of the consulant’s report and timeline for addressing deficiencies. Just because the OSH Consultation program promises confidentiality doesn’t mean the employer beneficiary of the free advice can’t share this information with OSHA.

I wonder if any OSHA offices already include such follow-up reporting in their settlement agreements?