Sunday, December 19, 2004

Dallas, We Have A Problem: Renegade Construction Company Kills Worker

This is one of those stories that starts out making you mad. Then furious. Then you just want to scream.

As I'm reviewing this week's Weekly Toll, I noticed this unfortunately common story:

Worker's body found in trench

Jose Cruz Morales left his Pleasant Grove home early each morning for work so he could send money back home to his mother and two sons in Mexico.

On Wednesday, the 47-year-old construction worker died while digging a trench for the sewer line of a new residential subdivision in Melissa.

The 15-foot trench collapsed, dropping a boulder, stones and dirt onto Mr. Morales.

So what else is new? Just another Hispanic worker killed in a deep unprotected trench.

Big deal.

Then there's this article reporting that Site Concrete, the company that killed employed Mr. Morales "has set up a fund for one of their employees, Jose Cruz Morales, who was killed on the job last week."

Oh, isn't that nice of them? Very caring. I'm touched.

NOT! Excuse my French, but no fucking way!

Reading further down the first article, one discovers that the Site Concrete Inc. of Grand Prairie, Texas, has been cited for at least 16 violations since 2001. Last year, Site Concrete was fined $98,000 for violating trenching and shorting standards. According to the October 30, 2003 OSHA press release:
At the time of the inspection nine workers were in a 14-foot deep trench installing storm sewers.

"This company has had eight inspections within the past three years resulting in penalties totaling almost $58,000 for similar trenching violations," said John Giefer, area director of OSHA's Corpus Christi area office. "Exposing workers to possible cave-ins is unacceptable and will not be tolerated."

The alleged serious violations include failing to adequately train employees on the hazards of working in confined spaces, failing to provide training on how to avoid trenching hazards, failing to provide hard hats for their workers and for allowing their employees to work with damaged ladders. A serious violation is one in which there is a substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

The alleged repeat violations include failing to conduct regular safety inspections, failing to adequately train employees on the hazards of possible cave-ins, failing to provide safe egress from a trench and not providing adequate protection from possible cave-in hazards. Workers should install a ladder or ramp for easy access and egress. A repeat violation is defined as a violation of any standard, regulation, rule or order where, upon reinspection, a substantially similar violation is found.
And it gets worse. First, the announced fines were before they were negotiated down, significantly in some cases. I checked out Site Concrete on OSHA's web site and this is what I found.(All are for trenching violations, except where otherwise noted):

  • Issuance Date 12/18/2000 (Inspection Number 303907364): Original violations totalled $15,000, reduced to $4,200.

  • 12/10/2001 (Inspection Number 304268071): Original violations totalled $8500 (no trenching), reduced to $1,950

  • 3/25/2002 (Inspection Number 304269038): Original violations totaled $13,500($12,000 trenching), reduced to $4,500

  • 3/22/2002 (Inspection Number 103628186): Original violations totaled $7500, reduced to $3500

  • 3/28/ 2003 (Inspection Number 305463465): Original and final violations totaled $5,000.

  • 1/13/2003(Inspection Number 304272826): Original violations totaled $35,000, reduced to $5,000).

  • 4/08/2003 (Inspection Number 305465023): Original violations totaled $25,000 reduced to $5,000.

  • 10/21/2003 (Inspection Number 306690165): Original violations totaled $96,800 ($74,400 trenching) reduced to 37,560 (Two were repeats)

  • 12/17/ 2003 (Inspection Number 305466856): original violations, totaled $29,000, reduced to $8,700 (one was a repeat).
Now, all of this raises a number of questions:
  1. After years of trenching violations and numerous repeat violations, why hasn't OSHA handed down a single willful citation?

  2. Why did OSHA significantly reduce the penalties over and over again despite clear evidence that the company was not cleaning up its act?

  3. Why are the owners of this company still walking the streets as free men?
Maybe the company has "good" legal Dallas attorney Tom Fee.

In setting up the fund, Site Concrete's attorney, Tom Fee, "said the company is 'devastated' by Mr. Morales' death." No doubt. But probably not quite as devastated as Mr. Moralis's wife, brother, mother, two sons and four stepdaughters.

Fee then "declined to comment further, citing the ongoing investigation and possible litigation. He said previous fines against the company are not related this incident."

Oh come on! They've been cited for every trenching standard violation in the book, the OSHA investigation has just begun, Mr. Morales's body is barely even cold, but world-renowned trenching expert Mr. Tom Fee has already determined that the "previous fines against the company are not related this incident."

Thomas W. Fee, by the way, is lead partner at the Fee, Smith, Sharp and Vitullo in Dallas, a lawfirm that specializes in defending corporate clients against OSHA citations and consumer lawsuits, a number of which are too slimy to even talk about on this web site.

Now let's revisit for a moment the statement quoted above by OSHA official John Giefer: "Exposing workers to possible cave-ins is unacceptable and will not be tolerated." Sounds like these unacceptable activities have already been tolerated for quite some time. But if we're really not tolerating them any more, what can we expect from this latest fatality? A criminal prosecution of the owners of Site Concrete, or just another fine that will be reduced to insignificance?

And if Mr. Giefer is speaking on behalf of the entire agency, can we expect the Bush admnistration to put its "political capital" where its mouth is by sponsoring legislation to put business owners in jail who willfully kill employees by placing them in situations they know to be hazardous?

Any legislators out there (in Washington D.C., or even in Austin, Texas) interested in introducing a bill into Congress calling for mandatory jail sentences for anyone cited for the willful death of a worker in a trench collapse? Anyone?

Site Concrete is also on the Texas Department of Transportation's Prequalified Contractors list which nets them lots of business. The main qualification seems to be an audited financial statement, but applicants also have to fill out a confidential questionairre in which they must certify that "the bidder’s firm and all persons associated therewith in the capacity of owner, partner, stockholder, director, officer, principal investigator, project director, manager, auditor, or any position involving the administration of any part of the firm’s operations ... have not been indicted, convicted, or had a civil judgement rendered against it or any person indicated above by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past 3 years."

I'm not sure whether a civil or criminal conviction for willfully killing workers would be considered "fraud or official misconduct," or a reason for disqualification. But it should.