Dispatches From the Front Lines of Occupational Safety and Health

Mine Employee and Company Convicted of Falsifying Coal Dust Sampling

Walter Perkins, a coal dust examiner in Harlan County, KY, will be going to jail for lying about fake coal dust samples sent to federal regulators. The Black Diamond Coal Company was also found guilty of violating Mine Safety and Health Administration regulations that require accurate coal-dust sampling in underground coal mines. Miners continue to die of black lung disease and mine operators are required to control the dust levels. The problem is that they take the dust samples themselves and send them into the Mine Safety and Health Administration quarterly. When they cheat, workers inhale too much dust, increasing their chance of getting disabling and fatal Black Lung Disease.

The U.S. Attorney’s Office said Black Diamond was sentenced to pay a fine of $200,000 and two years probation. It was also ordered to pay $400 to any miner who is no longer employed in the mining industry to pay for black lung screenings.

“This restitution for miners exposed to unknown respirable dust levels, after a company falsified the dust-sampling, is the first of its kind,” the U.S. Attorney’s Office said.

Perkins, 45, was sentenced to a 12-month split sentence, with six of those months to be served in prison and the other six to be served in home detention. He will be placed on one year of supervised release following his sentence.

At its best, the system is flawed. The so-called “safe” levels are way higher than needed to protect miners from coal dust and silica. The testing frequency is too long. And, as we have seen, mine operators can cheat. In this case, “inspectors said they found the company’s continuous personal dust monitor running on the surface in a first aid trailer, which is supposed to be worn by a miner underground during their normal shift to accurately sample coal dust underground.”

MSHA’s Missing Silica Standard

Meanwhile, Grist Magazine highlights the delay in MSHA’s issuance of a silica standard to address the sharp rise in an especially virulent form of black lung disease afflicting miners.

Experts point to the increasing prevalence of crystalline silica in the mines as a cause of this change. Silica is often found in quartz, which is embedded deeply within the sandstone that surrounds coal. It is ground to fine dust and kicked into the air by the machines that cut coal from ground, then settles deeply in the lungs, scarring the tissue and making it increasingly difficult to breathe. As mining companies have exhausted high-quality seams of coal, they’ve increasingly turned to inferior veins with larger volumes of other minerals, making silica exposure more likely.

MSHA has been working on a silica standard since 2011, but the proposal seems to be stuck in White House review with diminishing hope that it will be issued in final form by the end of Biden’s first term. The United Mine Workers union recently cited MSHA’s failure to issue a silica standard as one reason they are refusing to endorse Biden for re-election at this time. Mine operators are opposing the standard. They also fight compensation for afflicted miners and often manage to offload compensation costs on the taxpayers.

OSHA: Protecting Workers From Workplace Violence

OSHA may be slower than molasses in issuing its long-awaited workplace violence standard, but it has been aggressively using the General Duty Clause to address workplace violence problems. Earlier this month, the agency cited Wekiva Springs Center, a Jacksonville behavioral health and substance disorder facility, for a “shocking” incidence of “workers assaulted, confined by patients, and suffering broken bones and concussions and wounds from being scratched, bitten, punched and kicked.” OSHA cited “182 alleged incidents in 2022, nearly 70 percent of which required police response in a six-month period, and 10 alleged violent incidents in less than two months in late 2022” and proposed $15,625 in penalties.

Last month, OSHA cited two children’s hospitals, Texas Children’s Hospital in Houston, TX and Nationwide Children’s Hospital in Columbus, OH. The Texas citation was for for exposing employees who worked with patients with behavioral health issues to physical threats and assaults. “On Nov. 10, 2022, an aggressive patient pulled a security officer to the ground by the hair and kicked them repeatedly in the chest and abdomen. The officer, who was responding to an alert, lost consciousness, was taken to the emergency room and hospitalized.” The Columbus citation was for failure to “protect its employees from violent incidents involving the hospital’s patients in which nurses and mental health staff suffered concussions, lacerations, contusions and sprains.”

And in January, OSHA reached a settlement with Shands Teaching Hospital and Clinics Inc, a Gainesville, FL, psychiatric and substance abuse hospital, after a proposed a $14,502 penalty for failing to protect employees from workplace violence after a series of incidents left employees with serious injuries. Shands agreed to implement a workplace violence program, including worker participation, personal panic alarms, and providing employees with information about patients’ recent history and their potential for violence during admission, before all shift changes and in post-incident debriefings to increase staff awareness.

Over on the west coast, CalOSHA has cited two employers in Half Moon Bay where a mass shooter killed seven employees last January at a mushroom farm.

Cal/OSHA cited California Terra Garden, Inc. for 22 violations, including five classified as serious and one classified as serious accident-related for failing to have a plan or procedures to immediately notify employees of an active shooter threat and instruct them to seek shelter. Total proposed penalties are $113,800. Concord Farms Inc. was cited for 19 violations, three of them serious, including failure to address previous incidents of workplace violence and develop procedures to correct and prevent this hazard. Total proposed penalties are $51,770.

Meanwhile, in Michigan, bills are moving through the legislature that would increase penalties for assaulting a health care worker or volunteer. The two-bill package aims to address the rise in violence directed at hospital staff during the pandemic

How to Protect Workers from the Next Pandemic

We don’t know many workers died of COVID-19 contracted in the workplace, but it was many thousands. We also know that male, black and Latino workers had the highest rates of death. With no OSHA standard and few unions, most workers were on their own. Former OSHA head David Michaels, and former MSHA official Greg Wagner and Lillian Ryan have written an article in the Journal of the American Medical Association about how we can protect “essential” workers who could not work remotely in the next pandemic.

To protect workers, the authors focus on the hierarchy of controls: keeping infected workers out of the workplace by providing sick leave; using engineering controls like better ventilation, filtration and disinfection; administrative controls to separate workers; and finally personal protective equipment like respirators. The authors also suggest that OSHA issue a pandemic preparedness standard so that employers will be ready for the next pandemic. And we can’t leave worker protection to an under-resourced OSHA alone. CDC and local public health authorities must also protect workers and the federal government needs to adequately stockpile respirators and other supplies.

Meanwhile, a study publish in the American Journal of Industrial Medicine looked at high COVID infection rates in meatpacking plants.

Our results suggest current processing plant designs made rapid transmission of the virus during the pandemic’s early days almost inevitable, and implemented worker protections during COVID-19 did not significantly affect the spread of the virus.

Cramped workspace, frigid temperature, poor ventilation, and long working hours with short, largely indoor breaks put meatpacking workers at a higher risk of contracting COVID-19. More than 50,000 meatpacking workers were infected, with some 250 deaths across 38 states.

The authors recommended urgent action, including increased ventilation and better OSHA rules.

Bad, Lying, Penny-pinching Employers

The owners and operators of Taqueria Garibaldi have been sentenced to pay $140,000 in back wages and damages to 35 employees, as well as $5,000 in civil money penalties after being found guilty for committing “an array of work violations against their employees, including getting a fake priest to fish for confessions of workplace “sins” by staff.”

The “priest” asked employees if they had stolen from the company, been late for work, did anything to hurt the company, or if they had bad intentions toward the organization. According to the Department of Labor, “Federal wage and hour investigators have seen corrupt employers try all kinds of scams to shortchange workers and to intimidate or retaliate against employees but a northern California restaurant’s attempt to use an alleged priest to get employees to admit workplace ‘sins’ may be among the most shameless.” This may not be their final judgement. I have a feeling God will not be amused.

And then there’s this contractor who claimed that his employee died after falling off a nearby bridge. But actually,

Instead of falling near a bridge, the employee fell from the roof of a home at the contractor’s construction site in the Town of Northampton, according to authorities. The contractor didn’t have worker’s compensation for the job, police said. The contractor was arrested June 12 on charges of falsely reporting an incident, tampering with physical evidence and effect of failure to secure compensation, according to the release.

Finally, an employer was fined for retaliating against a worker who complained about the company’s failure to send a final paycheck. “After complaining about not receiving his final paycheck of $915, a man discovered 91,500 oily pennies dropped off in his driveway by his boss, the owner of a Georgia auto shop, according to federal labor officials. A pay stub with an expletive written on it was left on top of the pile of copper coins that were coated with oil, McClatchy News previously reported.” After the worker filed a complaint accusing the employer of retaliating against him, the company was forced to pay $39,934 in back wages and liquidated damages to nine employees.

Killer Employers

It seems like common sense that people shouldn’t stick their arms or head into a machine before making sure it’s turned off — and preferably locked out. But common sense falls victim to profit when employers refuse to stop a production line just to protect workers. That’s why OSHA has a Lockout-Tagout standard that requires employers to de-energize, or lock out machinery before workers repair it. Unfortunately, instead of complying with OSHA standards, too many employers rely on luck to keep their workers safe. But too often that luck runs out as it did for 29-year-old Leily Lopez-Hernandez, a sanitation worker working as a temp for Miracapo Pizza Co.

OSHA inspectors determined the woman — a temporary worker provided by XCEL Staffing Solutions LLC in Waukegan — was using compressed air to clean a spiral conveyer as it moved to cool pizza when her head became caught in the machinery. The agency found that temporary workers had not been trained or given the authority to stop equipment from moving before cleaning.

And it’s not like the company didn’t know what it was doing. According to OSHA, “The tragedy occurred just weeks after a November 2022 incident at the same facility in which a worker performing maintenance on a sauce depositor suffered an amputation,” resulting in $290,191 in proposed penalties.

OSHA issued a $2.8 million penalty against the company with 16 willful egregious violations, as well as one willful violation and 12 serious violations. OSHA also issued a $334,839 citation against the cleaning contractor, GDI Services Inc. for two willful and two serious violations for failing to lock out equipment while cleaning food processing machines, failing to train workers in a language they understand on safety procedures, not providing hardware necessary to lockout or tagout equipment, and failing to provide effective information and training regarding hazardous chemicals.