Tropicana Penalty: Problem With OSHA, the Law or Both?

Last week OSHA announced citations against the contractors building the Atlantic City Tropicana parking garage that collapsed last October, killing 4 workers and injuring 21 others.

Engineers who studied the event concluded that the collapse was caused by the faulty installation of concrete floors after changes were made to the design to speed the job and save money. So it was not surprising that workers and the families were upset about OSHA's paltry $98,500 fine against the main contractor, Fabi Construction. The Fabi penalty included one willful citation for the deaths of four workers. OSHA made no announcement about whether or not it would seek a criminal prosecution.

The Philadelphia Area Project for Occupational Safety and Health (PhilaPOSH) and the New York Committee for Occupational Safety and Health (NYCOSH), called on the U.S. Labor Department to initiate the criminal prosecution of those responsible for the deaths of four construction workers in a building collapse last October 30. The groups also said that the size of the fines imposed by OSHA were unacceptably small.

"This is about as clear a case as you could imagine of a company knowingly ignoring the most basic safety rules," said Jim Moran, PhilaPOSH Executive Director. "Four workers are dead as a result, with 21 more seriously injured, some permanently disabled," he continued. "If a $70,000 fine and no criminal charges is the best that OSHA can do, it's telling us that workers are expendable, and that's just wrong."

NYCOSH and Philaposh sent a letter to OSHA last December calling for criminal prosecutions.

Meanwhile, in Atlantic City Saturday, thousands of workers, families, friends and activists marched in memory of the workers who died in the garage collapse. And they were angry:

"I call these deaths an incident, not an accident," Joseph J. Hunt, president of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers union, told the crowd. "An accident implies that it was inevitable.

"This was a fatal incident that could have and should have been prevented," Hunt said.

Fresh off their shifts, workers in helmets and boots gathered on the Boardwalk near the Tropicana garage at Iowa Street. Scott Pietrosante's family and friends wore blue shirts bearing his picture. His older brother John also had been at the garage that day, but survived.

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The culmination was the unveiling of a statue of a construction worker, helmet and work gloves in hand, pausing to look at a monument listing the names of 25 workers.

After the Tropicana accident, the statue was commissioned by the Atlantic-Cape May Counties AFL-CIO Central Labor Council to go with the memorial, which was built in 1998, and the four names were added.

The statue, sculpted by Thomas Jay Warren of Denver, was designed, cast and erected in record time - less than four months - at a cost of $155,000, which was also raised in that time.

What's The Story?

Only five months ago, David Barstow at the NY Times wrote about how over the past 20 years, the agency failed to seek criminal prosecution against 93 percent of the companies whose willful violations of safety rules caused workers to die. Legislation has been introduced by Senators Jon Corzine and Edward Kennedy that would raise the penalties for willful violations. So with the eyes of the country focused on whether or not OSHA will refer one of the biggest cases of the yaer to the Justice Department for criminal prosecution, the word from OSHA in its 6 paragraph press release is .... nothing. No mention of what the agency has decided to do or not do, or whether criminal prosecution is still under consideration. (I've heard that it is still under consideration, but you wouldn't know that from the OSHA Web Page.) Prosecutors still have the option of initiating a federal criminal prosecution for violating the Occupational Safety and Health Act or a state prosecution for homicide. So what's OSHA's plan? Who knows?

In addition to OSHA's failure to communicate its intentions regarding the criminal referral,

"The case shows how much damage the Bush administration has done to OSHA," said Joel Shufro, Executive Director of NYCOSH. "A year ago OSHA could have issued $280,000 in fines, $70,000 for each fatality. Now Bush's appointees have ruled that it doesn't matter how many workers are killed, one or one hundred, the maximum fine stays the same, $70,000."

Shufro is referring to OSHA's failure to impose an "egregious" (or violation-by-violation) penalty, where instead of one $70,000 willful citation against the company, the company could be fined$70,000 for each worker killed in the collapse.

From my reading of OSHA's directive (CPL 2.80) interpreting the court decisions, however, it turns out here that OSHA may be on solid ground. (Incidentally, although I play one on the web, I am not an attorney, so I would welcome any differing opinions from people with real law degrees.) Egregious citations were only permitted by the courts when the cited standard applies to individual employees. For example, if an OSHA standard says that each employee must be trained, and 27 employees were not trained, OSHA could impose 27 separate citations. Where there's a single violation that doesn't apply to workers as individuals (such as proper perimeter roof guarding, or, in this case, failure to erect, support and maintain the formwork for the garage), OSHA is prohibited from imposing egregious penalties.

Even had the contractor been cited for a standard where the egregious policy applied, a recent decision by Republican members of the Occupational Safety and Health Review Commission has, for now, eliminated OSHA's ability to impose egregious penalties.

So, regarding OSHA's failure to impose egregious penalties, what we have here seems to be more a failure of the current law -- and a failure of this administration and the Republican-controlled Congress to support strengthening the law -- than a failure of OSHA policy.

As the NYCOSH/Philaposh Press Release stated:

This case highlights the need for heavier federal penalties for willful violations of OSHA regulations," said Shufro. "Even if the contractor is prosecuted and found guilty of a criminal OSHA violation, the maximum penalty is six months in jail. There are now two bills in Congress that would increase the maximum federal penalty to 10 years for killing a worker through willful negligence. Both of the bills, the "Wrongful Death Accountability Act," (S. 1272 )sponsored by Senator Jon Corzine, and the "Protecting America's Workers Act," (S.2371) sponsored by Senator Edward Kennedy, would put employers on notice that negligence regarding safety is not acceptable."

Another troubling aspect of the case is the extremely light penalty OSHA imposed on the general contractor, who must have been in a position to see and understand how the concrete contractor was ignoring OSHA regulations.

The OSHA violations highlight the ineffectiveness of the OSHA law as it now stands. A total fine of $119,500 on four contractors is hardly a deterrent that would prevent any of the contractors from repeating the violations in the future. In fact, the concrete contractor was charged with a willful violation that killed a worker in 1995. The citation was later reduced to a serious violation.

Corzine's bill, introduced last June, would among other things, increase the maximum criminal penalty for a willful violation causing a death from six months to 10 years in prison.

Kennedy's bill would improve whistleblower protections, provide coverage for public employees, increase the penalty for a death caused by willful violation of an OSHA standard to $150,000, and increase the maximum penalties for a criminal conviction from 6 months to 10 years (or to 20 years in the case of a second conviction). Conviction for seriously injuring an employee due to a willful violation of an OSHA standard could bring a 5 year jail sentence. (Currently, you have to kill a worker to get jail time)

On May 12, Congressman Major Owens (D-NY), Senior Democrat on the Subcommittee on Workforce Protections, will hold a hearing to examine worker deaths. The Tropicana collapse and the plight of immigrant workers will be the main focus.

And where are the Republicans in Congress and the Bush administration on the Corzine or Kennedy bills? I already reported these responses:

Commerce Secretary Donald Evans called the Corzine-Kennedy proposal "just another policy to destroy jobs.'' House Majority Leader Tom DeLay, R-Texas, said the proposal would be "the worst thing that you could do - telling a small business person that they could go to prison over an OSHA violation.''

And what does Assistant Secretary of Labor for OSHA, John Henshaw, say? "We look forward to reviewing the legislation"

Personally, I'm not holding my breath.