Dispatches From the Front Lines of Workplace Health and Safety: Short Stuff

DispatchesCriminal Conviction Upheld: DNRB, a Missouri warehouse construction contractor (doing business as Fastrack Erectors) was confirmed to be criminally liable for the fatal fall of an employee, according to the Eighth Circuit, affirming a previous guilty verdict. 22 year-old Eric Roach died July 25, 2014, after falling 30 feet from a building under construction. Roach had requested fall protection equipment on his first day on the job and even searched company vehicles and gang boxes for such equipment.  DNRB was convicted under the Occupational Safety and Health Act. Unfortunately, under the OSHAct, a criminal conviction has a maximum fine of $500,000 and is considered to be a misdemeanor. The court rejected arguments that there was not sufficient evidence at trial or that the punishment did not fit the crime.

OSHA had originally fined the company 511,000 in 2015, issuing seven willful and three serious safety violations and placed the company in the Severe Violator Enforcement Program. OSHA’s inspection found that Fastrack Erectors violated its own safety manual and a signed contract with the site’s general contractor, ARCO National Construction-KC Inc. The contract required subcontractor personnel who worked at heights higher than 6 feet to be provided with adequate fall protection.

And in other criminal news: SSC High Rise Inc., a New York contractor, has pleaded guilty to manslaughter in the death of carpenter Juan Chonillo, 44. Chonillo, a Queens father of five, fell 29 stories to his death on Sept. 21, 2017 while working at a luxury high-rise tower near the South Street Seaport in southern Manhattan. OSHA fined the company $23,282 for two serious violations. The manslaughter charges were brought by the Manhattan District Attorney’s office. OSHA can only bring criminal prosecutions for work-related deaths that result in a willful violation.  SSC High Rise also admitted to stealing more than $500,000 in overtime pay from 50 employees under-reporting $2 million in payroll according to the DA. The company “previously cut a deal in Manhattan Supreme Court and agreed to pay $842,000 in restitution, plus $10,000 in fines. The money will be returned to the cheated workers and to the New York State Insurance Fund.” The $10,000 fine is the maximum allowed by the law. DA Cyrus Vance Jr is calling for increased penalties to provide meaningful, practical deterrence…to end these dangerous and unlawful practices.”

Tragedy on the Docks: Eli Wolfe of Fair Warning has written an article describing the January 3 death of Phillip Vargas, a 54-year-old stevedore and member of the International Longshore and Warehouse Union (ILWU) Local 29 in San Diego, CA, who was killed in a forklift incident. Wolfe notes that Vargas was the seventh SSA Marine Inc. employee killed on the job in the last decade. CalOSHA cited the company last week, issuing issued six citations for a total of $205,235 in penalties.   The article notes that multiple safety devices on the lift that Vargas was driving had been disabled and the long, and describes the long tragic history of long shore workers employed by the company.

Kentucky’s War Against Coal Miners: Kentucky’s lawmakers passed a law that may soon hinder miners’ ability to obtain workers’ compensation benefits, despite data showing that “Kentucky is at the center of what experts are calling the worst black lung epidemic on record,” according to Arielle Duhaime-Ross at Vice News. “The new law bars federally certified radiologists from assessing coal miners’ X-rays in state black lung workers’ compensation claims. Instead, the state will require that only pulmonologists, physicians whose focus is lung disease, be allowed to judge X-rays for benefit claims.” The problem is that after the law comes into effect, there will only be 5 doctors in the state certified to examine X-rays, and of those, three have acted as expert witnesses on behalf of coal companies or their insurers. According to experts, there’s no science behind favoring pulmonologists over radiologists. The article goes into the entire recent history of the black lung epidemic, mining companies falsifying records and the difficulty miners have getting compensation.

It’s Not Nice to Lie to Federal Regulators: And continuing the depressing news about the Kentucky mining industry, Dave Jamieson reports in the Huffington Post that eight former supervisors and safety officials for Armstrong Coal in Kentucky were indicted “on charges that they lied to or misled federal regulators about the amount of harmful coal dust workers were exposed to.”  According to Russell Coleman, the U.S. attorney for the Western District of Kentucky, Armstrong officials submitted phony records to MSHA in order to downplay the amount of coal dust in two of its mines, and at the same time downplay actual risk to its miners of developing black lung disease. Miners were allegedly pressured by the company to “wear their dust pumps for only a fraction of their shift, thereby collecting a misleadingly low amount.”

This is a good thing, according to attorney Tony Oppegard who represented Parkway miners who reported the dust fraud to MSHA: “This is a widespread practice; it’s certainly not confined to Armstrong Coal Company,” he said. “I think it does send a message to all operators and all employees who are responsible for conducting the dust sampling at their mines: They better not falsify those records or submit bogus samples.”

Inquiring Congressman Wants to Know: I wrote last month about a National Employment Law Project report on the decline in OSHA’s “Enforcement Units” which weigh the significance of OSHA enforcement cases, rather than just counting the raw numbers of inspections. I have also written about the effect of the extended OSHA hiring freeze on the effectiveness of OSHA’s enforcement program. Now Congressman Keith Ellison (D-MN) has written a letter to Labor Secretary Acosta requesting data on the resources that OSHA is dedicating to enforcing workplace safety standards, the decline in enforcement units and low average penalties for serious violations and violations related to fatalities.  “These cutbacks are not excusable as an attempt to reduce bureaucratic inefficiencies. The high number of workplace injuries and the significant increase in workplace fatalities demonstrates the need for the Department to dedicate the proper resources to OSHA’s efforts.” Ellison wants information about OSHA’s hiring history, the decline in enforcement units, especially for workplace violence, heat, ergonomics, chemical exposures and process safety management, the size of penalties, and other information.

Burned, blinded and crushed:  “The meat and poultry processing industry had the eighth-highest number of severe injury reports of all industries in 2015,” according to a report covered in the the LaCrosse Tribune, citing a Government Accountability Office report.  The paper reports that “Wisconsin poultry processors reported eight serious injuries since 2015, according to OSHA, including two finger amputations and one person who possibly succumbed to heat.” Sharp knives used in close quarters, slippery floors, chemical exposures, musculoskeletal disorders, along with inconsistent worker training practices, language barriers lead to crushed fingers or hands, amputations, burns or blindness.  The story was produced for the Midwest Center for Investigative Reporting by students in a Spring 2018 investigative reporting class at the University of Missouri School of Journalism.

Short Stuff

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