The last in NY Times writer David Barstow's devastating "When Workers Die" series appears today.

This article told the story of a group of California prosecutors, led by Roy Hubert Jr., whose mission is to go after employers whose workers die in their workplaces. The case discussed here was an all-too-common confined space incident: A worker is sent down to unclog a sump in a manure pit. He is overcome by hydrogen sulfide and methane fumes. Another jumps in to rescue him. Both die, drowned in the manure. (Ed. Note: I wrote about this here.

The incident and the resulting prosecutions raise a number of issues.

First, most employers sent to jail for killing workers are "not bad people." They're not the drug addicts, thieves, or murders that you generally find in jail. And the last thing they ever wanted to do was kill one of their employees.

"These are not evil people," [Hubert] said. "They are not people who hurt for the sake of hurting. They are not bad people. This is good ol' Pat, good ol' volunteer fireman Pat. He feels terrible. He's devastated. I get a lot of that. Well, good. So are the widow and the mother and the father and sister and brother. Just imagine the incredible despair and anguish as you're drowning in manure."

A friend of Patrick Faria, the company's owner, reflects a common attitude around these tragedies.

"This is a hazardous job," said Mr. Xavier, who has worked on the Faria dairy. "Nobody told them, `Stick them down a hole. They're going to die.' What those guys did, I've done 10 times. If I had been there that day, I'd have gone down in that hole."

A few years ago, Mr. Xavier's father was killed on another Gustine dairy farm, crushed under a bale of hay. "It was a freak stupid accident," he said. "It's just one of these things. It's like being in the Twin Towers the day those planes hit. Hey, it was his day. That's just how life is."

But confined space deaths are not freak accidents. It is common knowledge among those in these businesses that manure or sewage generate toxic gasses that can kill workers in a confined space. In fact, Mr. Hubert

had evidence that Pat Faria knew all about those dangers and safety laws. For one thing, he had been taught them as part of his volunteer-firefighter training. Mr. Hubert subpoenaed the man who had trained Mr. Faria in "Confined Space Awareness" in a four-hour class for firefighters in 1999.

The trainer explained how he had taught Mr. Faria the dangers of gases in confined spaces, including how hydrogen sulfide is common in spaces where there is wastewater. The trainer said he also taught Mr. Faria about how no one should enter a confined space without an air test, safety harnesses and respirators.

Mr. Faria had been tested on the class material. In fact, his answer sheet was given to the grand jurors.

He passed, the trainer said.

Even worse,

As if to underscore the urgency of the safety situation, in August 2002 another man died at another Gustine dairy farm under similar circumstances. He was overcome by hydrogen sulfide and drowned while working in a sump pit of a manure lagoon. And there had been other such deaths, in California and in other dairy states, like Michigan, where five dairy workers died in one manure pit in 1989. As Roy Hubert saw it, it was high time that the dairy industry stopped using "fate" as a way of avoiding a problem.

Now let's take a short political break. At the end of yesterday's article, Barstow quoted John Henshaw's view of legislation that would make it easier to file criminal prosecutions.

Mr. Henshaw made it clear that he saw no need to change either the law or OSHA's handling of these worst cases of death on the job.

"You have to remember," he said, "that our job is not to rack up the individual statistics that some people like to see. Our job is to correct the workplace."

The dominant ideology among the Republicans, the business community and far too many Democrats is that OSHA's previous "strong arm" tactics, it's Gestapo mentality, it's "command and control" philosophy, its punative fines, and -- God forbid -- criminal prosecutions, are all counterproductive. They just turn employers off, making them focus on useless, unfair, complicated regulations instead of "correcting the workplace." They hurt business so people can't even get jobs.

So far better to just provide information to employers. We don't need training funds for workers, just give information to employers who want to do the right thing. Workers are their most important resource, and often their friends and neighbors. We don't need any new regulations that hurt business and therefore hurt workers. Our job is to correct the workplace. Just spend time forming endless alliances where "OSHA and its allies work together to reach out to, educate, and lead the nation's employers and their employees in improving and advancing workplace safety and health."

So yes, Mr. Henshaw, we all want employers to "correct the workplace." The question is how.

How do we keep people from driving drunk? Education is good. Trying to persuade people that they might kill themselves or someone else is sometimes effective. But high fines, losing their license, and criminal prosecution if they kill someone -- even if they happen to be Congressmen -- are the real deterrents.

Does the same principle work for employers who let their workers die even though they may be the nicest, most caring people in the community?

According to Barstow, the evidence says YES:

On closer inspection, there are clear indications that something important and rare has occurred here. For all the resentment stirred by the prosecutor with the bow tie, the old moral lines have begun to shift.

On dairy farms across the valley floor, there has been a broad reassessment of safety. Farmers are hiring safety consultants, putting their workers through safety training, installing first aid kits and posting signs.

"It makes you concerned because you think, `Heck, he's a dairyman and I'm a dairyman, too,' " said Mark Ahlem, a young farmer in the valley.

Before the indictment, Mr. Ahlem said, "We were taking some baby steps toward setting up some regular safety meetings."

Since the indictment, though, he has hired a part-time safety director, insisted on frequent safety meetings and established a disciplinary system for safety violations.

Another dairy farmer, Frank Faria — no relation to Pat Faria — said the indictment was an "unfortunate wake-up call." He has since hired a safety consultant for his dairy operation, and feels much better for it.

The changes are not entirely the doing of this one indictment. Cal OSHA levied $166,650 in civil fines against the Faria dairy for the two deaths, a substantial penalty for almost any farmer. The agency also conducted a sweep of the valley's dairy industry, inspecting more than 160 farms, levying nearly $500,000 in fines and offering free consultations. The Western United Dairymen held several crowded training sessions about the dangers of confined space.

But in conversations with farmers here, it is clear that the prosecution made the deepest impression.

Labels: confined space hazards, Criminal Prosecution