We wrote last week about the tragic workplace heat death of sanitation worker Ronald Silver II who died of heat stroke after picking up trash in temperature exceeding 100 degrees. Silver’s death followed several reports of abysmal working conditions in Department of Public Works facilities including foul bathroom and non-functioning air-conditioners, broken ice machines and water fountains. Water, Gatorade and toilet paper were often unavailable for DPW workers or were stored in locked closets. Workers have also characterized the DPW culture as toxic and report frequent cases of retaliation when workers complain about working conditions.
Michael Stanley, an AFSCME 3 union stewards and employee who picks up trash around the harbor, said supervisors have a “bullying approach” toward their subordinates.
“If you don’t do things, they find a way to punish you,” Stanley said.
Following Silver’s death, the Mayor promised an independent investigation of the incident and the working conditions that DPW workers endure.
So imagine everyone’s surprise when the City announced that it had hired the pro-business, anti-OSHA lawfirm Conn Maciel Carey LLP to investigate Silver’s death and issue recommendations. The Mayor’s office stated that it hired Conn Maciel to develop a review and recommendations that “will support the department’s efforts to develop a comprehensive occupational health and safety program to protect DPW employees.”
But the law firm is known for taking positions that weaken OSHA standards, leaving city workers and unions skeptical about the effectiveness of any recommendations the firm may issue. There is no federal heat standard, but federal OSHA is working on a national standard that is not expected to be issued within the next two years. The state of Maryland is also working on a standard which should be issued sooner.
“Supervisors have a ‘bullying approach’ toward their subordinates. If you don’t do things, they find a way to punish you” — Michael Stanley, AFSCME union steward and sanitation worker
Most recently, Conn Maciel provided comments on OSHA’s proposed heat standard. The comments were submitted last year before OSHA’s official proposal, and opposed the inclusion of indoor workers (stating that they should be covered in a separate standard.) The law firm claimed that an OSHA standard would be economically burdensome and urged OSHA to focus on training. They argued that OSHA’s heat standard should have a more “performance based” approach, leaving providing general guidance, but leaving specific requirements to the discretion of employers.
Conn Maciel has also organized the Employers Heat Illness Prevention/Protection Coalition, a group of businesses who oppose as strong OSHA heat standard.
Why Chose an Industry Law Firm?
Given the obvious need for a strong heat program, it is a mystery why Baltimore hired Conn-Maciel.
All three Baltimore news media — the Baltimore Sun, the Baltimore Brew and the Baltimore Banner wrote about the controversy shortly before the Baltimore City Council held a hearing on Silver’s death and the working conditions in Baltimore’s DPW facilities.
“My question is why the city of Baltimore would hire them?” said Jordan Barab, who served as a deputy assistant secretary at the federal Occupational Safety and Health Administration (OSHA) between 2009 and 2017.
“There’s got to be hundreds of good, decent consulting firms you could hire that aren’t in the middle of the political controversy over the weakening of federal standards,” said Barab, who now writes a newsletter about workplace safety and labor issues.
Given that there’s no mystery about how to protect workers against heat, and that Maryland OSHA is investigating the case, it’s not clear what the Mayor’s goal was
The performance-based approach that industry lobbyists are calling for may be reasonable for refineries or chemical plants “with very complex processes,” Barab said, but it makes no sense when it comes to protecting workers from sweltering hot conditions. “With heat we know what’s needed: water, shade, rest, acclimatization, and a training and emergency response plan,” he said. “Those five are the basic elements that everybody knows.”
Scott Schneider, who has worked as an industrial hygienist with labor unions for 40 years, said the opposition to heat standards amounts to a “reflexive antagonism to any kind of standards, no matter how beneficial or common sense.”
“You have to let people get used to the heat. That saves lives,” said Schneider, a member of the National Council for Occupational Safety and Health. “But the industry view is that everybody should work 110% every day.”
Employer resistance to indoor workplace heat standards, he argued, is also beyond the pale.
“You can’t tell me that people that work in restaurants, in laundries, in boiler rooms and even teachers in buildings without air conditioning aren’t very uncomfortable. Are they going to die from distress? Yeah, someone will.”
City Council Condemns the Selection
The Baltimore City Council held a hearing yesterday to explore the conditions at DPW and Silver’s death. The leaders of AFSCME Council 3 and the City Union of Baltimore (an affiliate of AFT) who represent DPW workers condemned the choice of the law firm and question why the City selected them.
Union leaders and former Occupational Safety and Health Administration officials have raised concerns about the firm’s selection given its history of representing employers in their efforts to weaken OSHA regulations. One AFSCME leader likened the firm to the fox guarding the henhouse.
Council members joined the chorus of opposition Thursday, expressing exasperation over the firm’s selection. [Councilman Antonio] Glover, who worked at DPW before serving on the council, demanded to know who selected the firm and why.
Stephen Salsbury, Baltimore deputy solicitor, said he chose the firm because of its experience with occupational safety and because the firm allegedly has “niche technical expertise” in heat illnesses and injury prevention. Union leaders and Council members were not buying it. Salsbury pointed out that one of the lawyers at Conn Maciel was also an industrial hygienist who had once worked for Michigan OSHA.
Glover asked why the city did not convene a committee that included frontline officials to conduct the review.
“We are the experts. We’re telling you what we want. It feels like things are falling on deaf ears,” Glover said to applause from a large crowd of DPW workers and union officials in council chambers.
Councilman Zeke Cohen asked Salsbury if he could cancel the contract. Salsbury responded only promising that the City Council and the unions would be able to review the law firm’s recommendations after the report is issued.
Silver’s family, represented by former mayoral candidate Thiru Vignarajah, was also not pleased.
The family and Vignarajah held a news conference Thursday morning where they questioned why the city opted to hire outside counsel to complete the report rather than conducting an internal review as it did after a mass shooting last summer in the city’s Brooklyn neighborhood.
Silver’s mother, Faith Johnson, addressed the council Thursday flanked by other family members. She implored the body to not play politics with her son’s death.
“I’m angry. I’m devastated, but we as a family will turn that pain into purpose,” she said. “That purpose has to be to do what needed to be done before my son died.”
Bottom Line
It’s a mystery why city chose Conn Maciel for this job, and little about the reasoning for the city’s hiring decision was revealed at yesterday’s City Council hearing.
As I told the Baltimore media outlets, figuring out how to prevent heat-related illness and death is not rocket science. The elements of an effective program are well known, and have been well known for decades: water, shade, rest, acclimatization, training and an emergency rezones plan. Maryland OSHA is currently investigating the death. Because there is no heat standard, MOSH will likely issue a General Duty Clause violation, providing a list of measures the city can take to prevent heat-related illness. If the City wants a more in-depth evaluation of the Department’s problems, it has only to look at the recent reports of DPW working conditions. And there are any number of workplace safety and health consultants (as opposed to corporate-oriented law firms) that can provide the city with an effective heat program.
“If this city was really interested in reviewing their safety policies, they should bring in a true safety professional, not a law firm focused on fighting back against OSHA protections and hoping to weaken safety rules,” — Debbie Berkowitz, former OSHA chief of staff
OSHA’s proposed heat standard would be a good place to start.
As I wrote before:
Had Maryland’s heat standard been in effect (or a federal standard), it is likely that Ron Silver would be alive today. He would have had access to water and rest breaks. If he had gotten sick anyway, his trained co-workers would have immediately recognized the signs of heat illness and implemented the emergency response program. Once Maryland finalizes its program, workers in 44 states will still labor every day in the heat without the simple protections that could save their lives.
“If this city was really interested in reviewing their safety policies, they should bring in a true safety professional, not a law firm focused on fighting back against OSHA protections and hoping to weaken safety rules,” said Debbie Berkowitz, chief of staff at OSHA from 2009 to 2014.