Workers at Hershey's plant feel vindicated by OSHA's $283,000 penalty to Exel

Federal OSHA proposed a $283,000 penalty against an employer responsible for staffing a Hershey's chocolate packaging facilty in Palmyra, Pennsylvania for willfully violating workplace safety regulations. The agency's action followed a formal complaint lodged by workers at the plant, many of whom were foreign students employed under the State Department's J-1 visa program. A few hundred of them walked off the job last summer to protest the poor working conditions in the Hershey plant. The New York Times' Julie Preston reported at the time about workers' injuries related to heavy lifting, twisting, reaching, and the speed at which they were expected to work.

The situation at the Hershey plant also illustrates how far companies have moved away from traditional employer-employee relationships. As Preston reported:

"A spokesman for Hershey's, Kirk Saville, said the chocolate company did not directly operate the Palmyra packing plant, which is managed by a company called Exel. A spokeswoman for Exel said it had found the student workers through another staffing company. The spokeswoman said: 'We contract with a staffing agency to provide temporary employees, some from the local work force and some J-1 visa holders.'"

The Labor Department's news release explains the work arrangement this way: the Eastern Distribution Center III in Palmyra is owned by the Hershey Co. and operated by Exel. Under a contract with Exel, SHS Staffing Solutions hired the students to work at the Palmyra site. Their foreign students' visas were sponsored by the Council for Educational Travel-USA.

Upon the Labor Department's announcement about the citations issued to the two firms responsible for staffing the Hershey plant, JJ Rosenbaum of the National Guestworker Alliance (NGA) said

"This is a case study of the way a major corporation uses a subcontracting giant to kill decent U.S. jobs. Exel stepped in to facilitate the demise of safe, stable, living-wage American jobs through corporate subcontracting to hide labor abuses. Corporations try to avoid responsibility for labor abuses by hiding behind chains of subcontractors, and by hiring guestworkers who are vulnerable to threats of retaliation."

Exel, Inc. is a multi-national subsidiary of Deutsche Post DHL which provides "supply chain and logistics solutions" to hundreds of firms including Ford, Xerox, General Mills, Office Depot, and 7-Eleven. A quick look at OSHA inspection data for the last 10 years at Exel facilities reveals dozens and dozens of inspections in 19 different States in response to worker safety complaints. Other inspections came about because of serious worker injuries and several deaths.

The most serious violations identified by OSHA at the Exel-run Palmyra Hershey plant involved the company's alleged willful failure to record more than 40 serious injuries on required incident reporting logs. The kinds of unrecorded injuries identified by OSHA investigators included some of the exact types of sprains and strains complained about the foreign-student workers. As NGA's JJ Rosenbaum notes

"These findings vindicate the claims by our members that Hershey's subcontractors Exel and SHS ignored and repressed complaints about serious health and safety violations. OSHA found that in effect, Exel had no health and safety regime at the Hershey's plant that would allow someone to perform these jobs safely over a long period of time. OSHA found that Exel concealed repeated health and safety violations over a period of many years."

Despite OSHA's citations, there are some things that are unsettling to me about this case. When I scroll through Exel's website and its case studies of "accomplishments," I can't help but wonder whether the production and efficiency models touted by Exel were the underlying cause of the hazards experienced by the workers. One case study of Exel's "improvements" at a Hershey facility in Mechanicsburg PA describes how engineers develop production standards for the imaginary average person.

"...The team was able to estabish the site's engineered labor standards: a list of warehouse tasks and the time it takes to complete each one. Because these times, called 'zero base,' are what an average person could accomplish, the program establishes fair and attainable standards, ensuring consistent expectations for every associate's performance. Those who perform about the zero base are given incentives to continue their high performance. And, with documented standards, management is able to work with associates who may not be meeting peformance expectations."

Here's how one of the Palmyra Hershey workers told the New York Times about how these engineered labor standards played out on-the-job:

"...cameras were trained on her, and supervisors told her that if she did not want to maintain the pace of work, she should leave."

So much for the fundamental prevention principle of fitting a job to a worker's abilities, not the other way around.

For the most part, the OSHA citations issued this week to Exel do not address the underlying causes of the hazards that led to the workers' injuries. Exel was cited for failing to record those injuries, but nothing in the citations compel the company to address the root of the problem. That's because OSHA doesn't have any standards on the books requiring employers to reduce or eliminate injury-causing repetitive motions, awkward postures, excessive line speed or other risk factors associated with musculoskeletal disorders. When OSHA issued a regulation in 2001 at the end of the Clinton Administration to address these hazards, Congress voided the rule.

Despite the heavy toll on workers' health and livelihood from work-related musculoskeletal disorders, the Labor Department hasn't been very aggressive in using OSHA's "general duty clause" to address ergonomic hazards or in proposing a new standard. The best OSHA could do in this Exel case with respect to the hazards themselves was send a letter to Exel urging the firm to take action. OSHA's area director for the Harrisburg, PA office wrote:

"Based on a review of work practices and illness and injury data at your facility we have identified potential ergonomic risk factors. The below listed tasks were identified that may be contributory in causing back and upper extremity disorders:

(1) Lifting boxes from pallets sitting directly on the floor and having to bend at the waist to either retrieve or stack product.

(2) Reaching to the back of pallets to retrieve boxes of product.

In the interest of workplace safety and health, I recommend that you voluntarily take the necessary steps to materially reduce or eliminate your employees' exposure to the conditions listed above." [emphasis added]

Exel has 15 working days to notify OSHA whether it intends to contest the citations, and an Associated Press report says Exel already plans to fight them. For the workers involved and with the continued support from the National Guestworkers Alliance, perhaps the willful violations can be used to leverage meaningful injury prevention efforts, and not just corrections to make sure injuries are recorded after they occur.

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