Hazardous Trenches, Good Luck and Bad Journalism

Eric Moreno is an extremely lucky guy. He was running some sewer pipe down in an unshored 7-8 foot deep trench last week when it collapsed on top of him. He could only breathe because the brim of his hard hat created a small pocket of air that separated his face from the dirt.

But even a breathing pocket often isn't enough to save the life of a trench collapse victim. A cubic yard of soil weights about 2700 pounds, the weight of a mid-sized automobile. A trench collapse may contain three to five cubic yards of soil. Do the math. Even if you're only buried up to your waist, successful rescue is unlikely; you're probably going to die. I've written before about workers, like Mike Morrison and Willie Hodge who both died as a result of trench collapses, even though they were only buried up to their waists.

My beef here is with the articles about Moreno's lucky escape. Not one of them (here, here, here, and here) mentioned that there is an OSHA standard that requires trenches deeper than 5 feet to be shored.

As I've written before, it wouldn't have taken the reporter too much time to add some valuable information to this article that might have gone beyond the human interest/shit happens/what-a-lucky-guy focus. If she couldn't spend 15 minutes on the web, she might have even called OSHA for some general information about trench collapses.

And then the readers (and construction workers) would have known that:

a) This tragedy was preventable
b) The employer was probably breaking the law.
c) Trench collapses are not to be taken lightly; most workers don't come out alive.

But Moreno's a tough guy:

Despite what was clearly a traumatic experience, Moreno said he is not afraid to continue working, and intends to return to work next week.
Moreno works for Gregg Electric Inc. of Ontario, a subcontractor for Oltmans Construction Co. of Whittier, a general contractor.
"I don't think I'd hesitate to get right back in," Moreno said. "I don't think I have any fears about that."

But if he's being sent down into unprotected 8-foot deep trenches, maybe he should have some fears. Maybe he and others working in unsafe workplaces should have been trained about the hazards of trenches and the laws that are meant to control those hazards.

Is It Possible To Provide Less Information?

Need I say any more about the problems with media reports of workplace injury and death?

Tyson worker dies at Emporia plant

The Capital-Journal
Published Saturday, January 06, 2007

EMPORIA — A male employee at the Tyson Fresh Meats plant in Emporia died after he suffered an undisclosed injury Thursday evening, according to Tyson spokesman Gary Mickelson. The man hasn't been identified.

Mickelson said the employee walked into the plant's health services department at about 5:30 p.m. Thursday and reported that he suffered an injury while preparing an animal for slaughter. The man was taken to a hospital, where he was pronounced dead.

Mickelson said Tyson continues to investigate the incident. The Occupational Safety and Health Administration also has been informed.

Meatpacker's Treatment of Workers and Animals: Not Kosher

Something's not Kosher in Iowa.

Kosher beef is not only tastes better, according to many meat eaters, but it is good for the soul as well, because Jewish law requires that animals be killed quickly and humanely, and the processes must be approved by supervising rabbis.

Unfortunately, at least in one Kosher meat processor, AgriProcessors Inc in Iowa, not only are the cows allegedly not killed humanely, but the human workers aren't treated humanely either, according to a long article in last May's Forward:

One of those workers — a woman who agreed to be identified by the pseudonym Juana — came to this rural corner of Iowa a year ago from Guatemala. Since then, she has worked 10-to-12-hour night shifts, six nights a week. Her cutting hand is swollen and deformed, but she has no health insurance to have it checked. She works for wages, starting at $6.25 an hour and stopping at $7, that several industry experts described as the lowest of any slaughterhouse in the nation.

Juana and other employees at AgriProcessors — they total about 800 — told the Forward that they receive virtually no safety training. This is an anomaly in an industry in which the tools are designed to cut and grind through flesh and bones. In just one month last summer, two young men required amputations; workers say there have been others since. The chickens and cattle fly by at a steady clip on metal hooks, and employees said they are berated for not working fast enough. In addition, employees told of being asked to bribe supervisors for better shifts and of being shortchanged on paychecks regularly.

"Being here, you see a lot of injustice," said Juana, who did not want her real name used because of her precarious immigration status. "But it's a small town. It's the only factory here. We have no choice."

Now, the Washington Post reports that two Conservative Jewish organizations have created a task force to investigate the problems at the plant:

A month after the [Forward] piece ran May 26, the Rabbinical Assembly and the United Synagogue of Conservative Judaism launched a fact-finding study to find out what wrongs, if any, are being committed at the plant in Postville, Iowa.

Workers report being treated like animals:

On Manuel's first day, he said, he found himself slicing up chicken carcasses without even receiving the hour-long orientation that other workers had described.

"There's no training," he said. "You learn by getting chewed out."

Now, Manuel arrives each day at 4:45 a.m. Although the Supreme Court decided last year that meatpacking plants must pay their workers for donning and doffing — dressing and undressing before and after work — Manuel and the union organizers who lived in Postville said that the workers are not allowed to punch in until they take their positions on the line. Rubashkin responded by saying that the company did change the rules when the Supreme Court ruling came down.

Manuel works 10-hour days in the chicken department. Lunch breaks are 30 minutes, but after taking on and off the bloody smocks and masks at the beginning and end, there is closer to 15 minutes' time left for eating. Dozens of workers on a shift share the cafeteria, and the workers say there are only three microwaves, which short-circuit when used simultaneously.

"I've said, 'Why do you treat us like this?'" Manuel said. "We're human beings, not animals."

And People for the Ethical Treatment of Animals allege that the animals aren't treated very well either:

People for the Ethical Treatment of Animals has also campaigned against the slaughterhouse in recent years, alleging that workers, including rabbis, ripped the tracheas and esophagi out of the throats of fully conscious cows, which were left trying to stand three minutes after their throats were slit.

PETA cites a 2004 videotape it says was obtained by an undercover cameraman for the group. In the video, cows that have had their throats slit are shown writhing on the ground of the plant in pools of their own blood. AgriProcessors denied charges of inhumane slaughter then, telling PETA that its practices complied with kosher law.

Temple Grandin, a designer of livestock handling facilities and the author of several books on animal handling, welfare and facility design, saw the PETA tape but has not been allowed to visit the facilities.

"During my career I have visited over 30 kosher beef plants in the U.S., Canada and other countries . . .," she writes on her Web site. "Kosher slaughter without stunning can be done with an acceptable level of welfare when it is done correctly. When shehita [Jewish ritual slaughter] is performed correctly with the long knife, the cattle appear not to feel it. This tape shows atrocious procedures that are NOT performed in any other kosher operation."

OSHA also isn't pleased with the company's treatment of workers:

When it comes to outside regulatory agencies, the Occupational Safety and Health Administration have tagged AgriProcessors this year with six violations. That amounts to more than half the violations in all Iowa meatpacking plants during that time, according to OSHA statistics.

And the Agriculture Department isn't very happy about the plant's treatment of animals:

In March, the U.S. Department of Agriculture released a report finding that AgriProcessors had indeed violated provisions of the Humane Slaughter Act. The USDA did not, however, pursue criminal charges.

More On The Death Of Francisco Alejandro Garcia

We have a little more about the poorly-reported death of Francisco Alejandro Garcia. You may recall that I was rather upset at the lack of information in the article about his death.

First, Mary Vivenzi whose boyfriend Kevin Noah was killed, falling from Golden Gate Bridge in 2002 while working on an earthquake retrofit project, sent a letter to the WBDJ who ran the original story.

I would like to inquire on what do you base the importance of your journalistic efforts when deciding what or what not to give a story.

Because it is personally offensive that when reporting such a tragic event as a workers death you would not allow your journalism to extend itself further than a whole paragraph I fail to understand why this article seemingly failed in comparison next to that of your article Radford student gets big chance on Price Is Right which somehow managed to merit the importance of a full page story. It makes me angry and it makes me sick and once again gives merit to my belief that there are those who come to work for the love of what they do and others who only show up for the check.

Its a sad thing when the public is forced to rely on passionless journalism as a source of information. And sadder still to imagine how hard your lack of compassion affects those who need you most.

And the station's response?

Our information was based on a brief news release from the Henry County Sheriff's Department sent to us Saturday evening. That was all the information available to us all weekend. We passed along all we had regarding the circumstances both on the air and on the Internet.

Perhaps you are upset we did do more on this story Monday, although by then, the events were three days old. And we have learned over and over that grieving family members resent media inquiries as they prepare to bury a loved one.

But that does not mean we are done with the story.... we will request a copy of the state or federal safety inspection report.

Nonetheless, we regret that you find our response to be inadequate, and we do not pretend to be perfect in our decision-making process. Please let us know what elements to this story we failed to present that you believe are important and deserve our further attention.

What elements you failed to present? How about what happened? What safety standards might have been violated? What other workers had to say about working at the plant? The company's safety record? You know, "journalism." And it's not always necessary to invade the privacy of grieving families to get some useful information -- especially, as we shall see, there most of the grieving family wasn't even there.

And speaking of journalism, Cathleen in the comments brought our attention to the local newspaper, the Martinsville Bulletin, which has done some decent coverage of the story (but is apparently too small to show up in Google.)

It seems that Garcia was working for a contract company, National Service Co. of Mt. Pleasant, Iowa, that cleans industrial equipment. Garcia was on a platform above a processing machine, hosing off the moving blades with a water hose when he fell in. No one observed him fall, but he apparently either slipped or the hose got tangled in the blades. (Guardrails? Lockout?)

The result was not pretty:

The State Medical Examiner's Office in Roanoke completed an autopsy of Garcia on Monday. Dr. William Massello, assistant state medical examiner, said Garcia's cause of death will be listed as multiple injuries from body fragmentation. He said it would be accurate to say Garcia's body was pulled into pieces when he was caught in the machine.

Sadly, Garcia's wife and child were on their way from Mexico to visit him when he was killed:

A week and a half ago, Alejandra Jimenez Arias was a happy young wife and mother with a promising life ahead of her. She had left Mexico with her 2-year-old daughter, Zuemy, on a week-long, 3,000-mile journey, expecting a joyous reunion with the husband and father they had not seen for 10 months.

She arrived in Martinsville on Monday as a widow.

When Arias reached the Mexican/American border late Friday night and called her husband to tell him that they were nearly here, her brother-in-law answered. Julio Cesar Alejandro Garcia broke the news to her that 19-year-old Francisco Alejandro Garcia had died that evening when he fell into a processing machine at the Knauss Snack Food plant.

The community is taking up a collection from Hispanic stores and Mexican restaurants throughout Virginia and South Carolina where many of their townspeople and distant relatives live. They're trying to raise the $6,800 it will take to send his body back to Mexico for burial.

Garcia's brother-in-law said that "neither he nor anyone in the household has been contacted by Knauss or National Service since the accident, and he has not known how to reach appropriate authorities to make inquiries."

A Life Gone In 60 Words

What is this? Journalism? I think not.

This is the entire article:

Martinsville man dies on the job in Henry County

Martinsville, VA -- Local and federal authorities are investigating a fatal industrial accident in Henry County. It happened around 8:00 p.m. Friday, March 17 at Knauss Snack Food in the Beaver Creek Industrial Park. Officials say 19-year-old Francisco Alejandro Garcia fell into a processing machine and died. Garcia was a contract employee responsible for cleaning the machines that night.

He fell in "and died?"

What, a heart attack? Natural causes? Or is this perhaps a lockout incident? Was he crushed in moving machinery that wasn't de-energized? Or did Garcia fall into an opening and hit his head? Or maybe he was electrocuted. Was he working alone? Are there OSHA standards that may cover this incident? Any witnesses?

But wait, answers to these questions might actually take a bit of work and research, some actual interest in why this man died. Anyway, he was probably just an immigrant, most likely "illegal."

Are we ever to hear more about Francisco Alejandro Garcia? Probably not.

(Thanks to Coit Smith for seeing the obvious.)

NY Times Again Picks Up OSHA Impersonation Story

Well, there's one thing you can say about the New York Times: their journalists -- particularly labor reporter Steven Greenhouse -- read the right blogs.

The Times again picked up on Tuesday's Confined Space story (which was picked up from a story in Inside OSHA), about the Immigration and Customs Enforcement bureau's insistence on continuing to impersonate OSHA officials in order to nab undocumented immigrant workers. ICE officials invited workers to a mandatory OSHA training last July at Seymour Johnson Air Force Base in North Carolina, where they arrested 48 workers. ICE is a bureau within the Department of Homeland Security (DHS).

The raid came under fierce criticism from labor unions and immigrant rights officials who argued that immigrant workers, who have a much higher injury and death rate than US-born workers, would be afraid to report dangerous safety conditions to OSHA, or even seek information, if they feared being deported. North Carolina and Federal OSHA officials also opposed the tactic

OSHA officials repeated yesterday the stance they took after the July raid, saying the agency worked to build trust with Hispanic workers. They also said they did not condone using the agency's name in this type of ruse.

But despite a statement last October by DHS Secretary Michael Chertoff that impersonations using health and safety were not appropriate, ICE officials are defending use of the ruse.

[ICE spokesman Dean] Boyd said the employment of illegal immigrants at sensitive facilities like military bases posed a serious threat to domestic security. He said that, given their illegal status, they might be vulnerable to exploitation by criminals or terrorists.

"That's why we're aggressively targeting these types of workers at sensitive facilities," Mr. Boyd said. "We've got an obligation under the law to do what we need to do to remove those people immediately from a position where they could do potential harm."

He promised to "coordinate" with OSHA if they use the tactic again (whatever good that will do...)

AFL-CIO officials disagree with ICE's tactics:

Ana Avendano, a lawyer with the A.F.L.-C.I.O., also criticized immigration officials for not providing the assurances that safety advocates were seeking.

"We told them that the population of workers that we're dealing with is suffering the highest mortality rate and highest injury rate on the job," Ms. Avendano said. "If immigration officials are going to use OSHA as a ruse, all they will do is reduce the trust of workers to go to OSHA with concerns about safety problems."

On a personal note, I find it amazing how many hostile notes I've gotten from people asking me why I allegedly support illegal activity on the part of undocumented immigrants, but oppose illegal activity by employers who violate health and safety laws? And how can I criticize any tactic that nabs lawbreakers?

The simple answer is that illegal immigration may be, well, illegal, but the penalty is not death or serious injury. And, as one of my [more supportive] commenters points out, one crime is more akin to trespassing, while the other is more like negligent homicide.

The whole immigration issue isn't a simple one and I won't go through all of my arguments again here, but if you're interested in the debate, you can check out my discussion here. And feel free to join in.

Related Stories

• 'Illegal' Workers: "They Get What They Deserve?", February 8, 2006
  
• mmigration Officials Refuse To Stop Impersonating OSHA, February 7, 2006
  
• APHA Letter To Homeland Security Protesting Fake OSHA Sting, August 23, 2005
• Immigration Scam Causing Concern in Texas, August 6, 2005
• OSHA or Immigration? How To Tell The Difference, July 17, 2005
• NY Times Covers OSHA Impersonation Story, Saturday, July 16, 2005
• Betrayal in North Carolina: Unions Condemn OSHA Impersonators, July 14, 2005
• Stupid and Deadly: Undocumented Workers Lured into Arrest With Promise of Safety Training, July 11, 2005

The Press and The Truth At Sago

I need to write a bit about the "miscommunication" problem at the Sago mine. Clearly everyone -- the company, the press or government officials -- made serious mistakes. And while it's hard to untangle that web of mistakes, it's important to understand the, in the spirit of learning lessons for the inevitable next time.

The coverage of the mine disaster coverage is quite interesting. As might be imagined, blame gets apportioned to all parties. The Columbia Journalism Review is amazed that so many newspapers -- including the "venerable" Washington Post and New York Times could have reported the bad "good news" without any mention of sources beyond emotional family members. Was it fatigue, the strong wish for good news?

Certainly, the decision not to immediately correct the rumors helped the story leap to the front pages. But what is equally obvious is that reporters at the scene did not do enough to verify the truth of what they were being told by happy family members. They then produced articles, like the Post's and USA Today's, that almost unbelievably failed to offer any sources.

Washington Post blogger Howard Kurtz, noting that the company and the governor screwed up, also puts primary blame on his journalistic brethren "for not instinctively understanding that early, fragmentary information in times of crisis is often wrong."

Some in the press, including the Associated Press absolved themselves of blame:

“AP was reporting accurately the information that we were provided by credible sources — family members and the governor,” Mike Silverman, the news agency’s managing editor said in the story. “Clearly, as time passed and there was no firsthand evidence the miners were alive, the best information would have come from mine company officials, but they chose not to talk.”

One clue to the problem may be in observing what was different about this disaster from previous mine disasters:

During the entrapment of nine miners in the Quecreek mine flood in July 2002 in Pennsylvania, state mine safety experts and U.S. Mine Safety and Health Administration officials took part in regular media briefings.

At the Sago Mine, Gov. Joe Manchin frequently briefed reporters. MSHA had at least two public affairs officials at the mine site, but never briefed the press. Top MSHA officials, as well as the agency’s press officers, have generally not returned phone calls and have declined to answer most questions about the accident, the rescue operation and their investigation plans.

Throughout the more than 40-hour incident, company officials from mine owner International Coal Group handled most of the task of informing the public through the media.

So what was the problem here?

Former MSHA Public Affairs Official and Mine Safety Watch blogger Kathy Snyder, who has been the press officer at mine disasters notes that in the past MSHA would handle the communication, effort -- including rumor control -- when the company didn't want to handle it or was unable to handle it. And they sent people who had enough experience to avoid many of the problems that were experienced the other night. But things change, especially in this administration:

We knew that when accurate information is lacking, rumors will run wild. So rumor control was part of what we had to do.

We also knew that communicating critical news by walkie-talkies or cell phones can lead to unintended interceptions and mistakes. The rescuers in the Virginia emergency understood this and discussed new findings only by land-line or in person until the families knew. In this way, we made sure that the miners' families always got announcements first -- and accurately.

***

In Upshur County, as soon as it was known that the miners' families were reacting to a false rumor, someone should have stepped in at once to give them the truth. If no one else was willing, MSHA should have done it.

Public information on mine safety is part of the federal mine agency's job -- a part it has less and less enthusiastically embraced under the Bush administration.

For instance, MSHA has cut back on what it gives out under the Freedom of Information Act, dumbed-down news releases, and pushed career professionals out of public roles.

Ellen Smith of Mine Safety Report (via Kevin Drum) fills in a few more details about how MSHA's role has changed:

In this case, MSHA sent down Dirk Fillpot from Labor Dept. headquarters. Although Fillpot is not to blame for the horrific miscommunication that led families to believe for three hours that their loved-ones were alive, he has absolutely no experience in dealing with mine disasters, unlike two highly qualified and seasoned press people — Rodney Brown and Amy Louviere — who sat back at MSHA headquarters in Arlington twiddling their thumbs. And who was in charge at headquarters? Suzy Bohnert — another person with absolutely no experience in dealing with mine disasters and the confusion that the situation brings, and who in fact, has given out incorrect information in the past due to her lack of knowledge of MSHA policies and past practices.

I cannot imagine that Amy or Rodney would have let this incorrect information go unanswered for so long. In the past, MSHA has stepped up to the plate when the company failed in communications during past disasters. It's time for the agency to recognize its role in this media and family nightmare.

So what's the right answer? I'd have to go with Door Number 3: Blame MSHA and the Bush administration cutbacks.

When all else fails, the responsibility for communication should fall to the party that has the most knowledge and experience, and the least emotional stake in a "good" outcome. Company officials may be too emotionally involved and too inexperienced in handling disasters. Whereas MSHA officials may have handled many similar situations, most company executives will (hopefully) only experience one in their entire careers, at most.

A United Mineworkers official, Dennis O'Dell, who was at the site helping to coordinate the rescue effort, discovered the truth about the dead miners at the same time the company did. His experience illustrates the problem when the communication effort is left to the company:

O'Dell said he assumed the information would be passed on to the families shortly after midnight.

He said he first found out false rumors were still circulating about 1 a.m. when he called his wife in Virginia to tell her the miners were dead.

She told him national news sources still were reporting all of them were alive.

O'Dell said he immediately contacted on-site officials with both the state of West Virginia and with the U.S. Mine Safety and Health Administration to see who should correct the mistake.

He again was told the matter was being left up to the coal company.

"Morally, I felt like I or someone should, but legally the company has to do that," O'Dell said. "We can't do that. Who was I to the family members? They've been communicating with the company all night, and if I went down there as someone they'd never seen before and told them this, what would they think? What would they do?

"It was sickening," O'Dell said. "Your stomach was in knots. It was just nauseating."

Add to that the fact that the press these days seems to be more interested in pushing news out as quickly as possible and worrying about accuracy later, you have the makings for a mess. It may be coincidence, but this was the first big mine disaster where MSHA did not have the capability on the ground to handle potential communications problems.

And one thing on which I think everyone can agree: it didn't go very well.

Top Ten Workplace Health and Safety Stories of 2005

Another year has gone by, OSHA and MSHA continue to do a heck of a job protecting the nation's workforce and once again it's time for the eagerly awaited Top Ten Health and Safety Stories of the past year.

1. BP Amoco Explosion: An explosion ripped through BP Amoco's giant Texas City refinery on March 23, 2005, killing 15 workers and injuring 170. Faced with evidence that alarms and meters hadn’t been functioning correctly and that the plant had experienced previous similar incidents that had not been adequately investigated, the company took full responsibility by blaming the workers and firing six of them. All of the fatalities were in or near office trailers that had been placed too close to the unit that exploded.
   
   OSHA fined BP $21.3 million, the largest fine in OSHA's history, sending shockwaves through the company when it was discovered the fine amounted to just over 2 hours of BP profits. BP has established an independent panel to review safety systems at all BP facilities in the United States, at the request of the US Chemical Safety Board, which is conducting an thorough investigation of the explosion.



2. Alliances and Voluntary Programs: Courageously confronting the rising number of workplace deaths, disproportionately high rates of workplace fatalities among immigrant workers, its growing budget problems and a monumental (if un-noticed) health and safety crisis among dog groomers, OSHA took the bold step of forming an alliance with the International Society of Canine Cosmetologists.
   
   Moving from the ridiculous to the tragic, in August, OSHA granted the prestigious "Star" Voluntary Protection Program (VPP) status to corporate killer W.R. Grace which was indicted earlier this year for knowingly exposing thousands of workers and community residents to deadly asbestos dust.
   
   Finally, the agency decided to lend a helping hand to the financially struggling American Chemistry Council by forming an alliance with the chemical manufacturers association that seemed intended to help the association bolster its plummeting membership numbers.
   
   And what, you may be asking, is OSHA in effect saying to the General Accounting Office which warned the agency in 2004 that there is no evidence that these costly programs are effective in reducing health and safety problems?
   
   "Bite me."



3. Elimination of the AFL-CIO Health & Safety Department: After accusing the rival "Change to Win" coalition of attempting to rip the guts out of the AFL-CIO, Federation President John Sweeney ripped the guts out of the AFL-CIO himself by eliminating its highly touted Safety and Health Department, cutting half of its staff and moving the remainder into the Legislation Department. The bone-headed elimination of the department was allegedly intended to put more resources into organizing, although by weakening one of the major reasons for workers to join unions, it is more likely have the opposite effect.



4. New OSHA and MSHA Directors: Suddenly remembering that OSHA and MSHA had been lacking permanent leadership for almost a year, President Bush finally got around to nominating a permanent director for both agencies on the same day: Edwin G. Foulke for OSHA and Richard Stickler for MSHA.
   
   Foulke’s chief claim to fame was his term as Chair of the Occupational Safety and Health Review Commission during the Bush I administration, but his years since those glory days have been spent heading up the OSHA practice at Jackson, Lewis, a huge law firm notorious for its aggressive union busting practice, and heading up the Greenville, South Carolina Republican Party in his spare time.
   
   Foulke will replace acting Assistant Secretary Jonathan Snare, a Texas Republican political operative who, before coming to Washington, played a major role in the infamous Texas re-redistricting and made money defending Metabolife, whose main product, ephedra, was finally banned by the FDA after killing more than 150 people.
   
   Meanwhile, Stickler, who was most recently head of mine safety in Pennsylvania during the Quecreek Mine near-disaster, was notable chiefly for managing coal mines that had injury rates that were double the national average.



5. Health and Safety Journalism: Although American journalists inexplicably failed to pick up on the crisis in the canine cosmetology industry, 2005 did produce a number of great workplace safety media stories. One of the best was the disturbing Sacramento Bee series by Tom Knudson and Hector Amezcuaon on the Pineros, the immigrant workers who work the pines, but end up paying the usual price in injuries and abuse, all under the watchful eye of the federal government. The series has already led to proposals for sweeping changes to better protect the Pineros from injury and abuse on the job.
   
   The Kansas City Star ran an excellent series by Mike Casey on the sham that this nation's attention to workplace safety has become while Dan Frosh penned an informative piece in AlterNet on the rising number of deaths in the steel industry.
   
   Unlike most articles about trench deaths, Heidi Shrager's article about a fatal Staten Island trenching fatality actually explored in-depth the employer's conscious decision to violate OSHA's trenching standard, sending an immigrant worker to his death. I don't know if Shrager's article gets the credit, but the case has resulted in manslaughter charges.
   
   And finally, that radical anti-capitalist publication known as the Wall St. Journal had a couple of good pieces on the failure of U.S. programs to regulate exposure to toxic chemicals, and corporate influence on the science that determines chemical regulations. If only the WSJ editorial staff would actually read their own newspaper...



6. Hurricanes and the Unlearned Lessons of 9/11: A number of important lessons were learned from the cleanup operation following the destruction of the World Trade Center towers which left thousands of workers with serious long-term health problems. Reports over the past several years have faulted OSHA for failing to enforce OSHA standards at the World Trade Cener site, neglecting to ensure proper use of appropriate respirators and ignoring the health and safety problems of mostly low-paid immigrant workers who were exposed to toxic dust while doing cleanup work outside the main WTC site.
   
   With those lessons under its belt, OSHA then responded to the Hurricane Katrina disaster by failing to enforce OSHA standards, neglecting to ensure proper use appropriate respirators and ignoring the health and safety problems of mostly low paid immigrant workers working with toxic molds and other hazards for employers who were not under FEMA contracts.



7. Chemical Plant Security Legislation: After spending $13 gazillion, causing the needless deaths of over 2,000 American soldiers and tens of thousands Iraqi civilians without finding a single weapon of mass destruction, Congress and the Bush administration have failed for the fourth straight year to pass legislation that would address the 15,000 weapons of mass destruction littered around the United States. Faced with action by some states, a "compromise bill has been introduced into Congress that would impose new security requirements on the plants, but fails to include a requirement that they seriously consider the use of inherently safer technologies, which would not only reduce the threat of terrorism, but also reduce the threat of home-grown Bhopal-like "accidents."



8. OSHA Deform Legislation: Responding to rising number of workplace fatalities, paltry penalties and skeletal budgets that would take OSHA 108 years to visit every American workplace, Senator Michael Enzi addressed the problem by introducing a conglomeration of OSHA bills that ease the "burden" on small business. One of the most important provisions would give busy small businessmen a "get out of jail free" card if they misplace their OSHA citations and miss the 15 day deadline for filing an appeal. While automatic extensions in the case of lost homework win the support of my kids, few experts expect it to have much impact on the workplace death rate. At the last minute, Enzi removed an planned provision that would have increased OSHA penalties, muttering under his breath, "Now, where the hell did that come from?"
   
   And apparently greatly impressed by OSHA's resolution of the health and safety crisis in the Canine Cosmetology industry, Enzi's bills would also encourage OSHA to increase its voluntary activities.
   
   And finally, Enzi's bills would allow OSHA for the first time in its history to penalize employees for not wearing personal protective equipment like hard hats and gloves. Neither OSHA nor Senator Enzi seem to be aware that by failing to issue OSHA's long awaited standard that would require employers to pay for workers' personal protective equipment, the agency is now penalizing employees for actually using the safety equipment.



9. Penalties -- Carrying a Bigger Stick: Facing the fact that Congress refuses to deal with the problem of ridiculously insigificant OSHA penalties, more creative minds are dealing with the problem in other ways. Local jurisdictions are filing manslaughter and homicide charges against companies that willfully kill employees. In Arizona a water and sewer company was convicted of negligent homicide, aggravated assault, violating a safety standard causing the death of an employee in a confined space. A Michigan construction company was found criminally responsible for the death of an employee in a trench, and put "on probation," which meant that it could not bid on state contracts until 2013. Meanwhile, manslaughter charges were filed against a Staten Island construction company for the death of a worker in a trench collapse.
   
   On the federal level, prosecutors at the Justice Department have been indicting business owners using environmental laws that carry much stronger penalties than the OSHAct. W.R. Grace & Co. and seven of its current or former executives and department heads were indicted in February for attempting to hide the fact that toxic asbestos was present in vermiculite products at the company’s Libby, Montana plant. Grace had not only exposed workers at its plant, and the entire community of Libby, but also workers at plants across the United States where the vermiculite was processed.
   
   Following a puny $175,000 fine against Motiva Corporation for the 2001 death of Jeffrey Davis who was killed when a tank full of sulphuric acid exploded, the Justice Department fined the company an additional $10 million last year for knowingly putting workers in danger. (The company was aware that the tank was leaking explosive vapors.) The size of the fine was a result of enforcement under environmental laws that permit EPA to cite companies if employers knowingly commit environmental violations that also endanger or kill a worker. (Fish were killed in the acid spill). The lesson: If you're a worker who's going to die on the job, make sure you take a bunch of fish with you.



10. LabourStart Launches Health and Safety Newswire: In a never-ending struggel to make the public aware that workers really do face serious health and safety problems on the job, LabourStart, the trade union news service and Hazards Magazine (edited by Rory O’Neill, the International Federation of Journalists’ health, safety and environment officer) launched a new newswire that provides health and safety news updated every 15 minutes. Check over on the upper right column of Confined Space for a sample. Click here for information on how to put it on your website.

And that's all for 2005 folks. Now on to the 2006, which I had hoped would be a better year until a little coal mine in West Virginia has sadly given us the first health and safety story of 2006.

Kansas City Star Clobbers OSHA

It's a delightful, but all-too-rare occurence when reporters (and not just lonely bloggers) actually see the sham that this nation's attention to workplace safety has become.

Only hours after starting his first day on the job, Les James was dead.

The 25-year-old father of three was working on a window-cleaning crew in July 2000. Suddenly, the window-washing rig fell off the roof of Research Medical Center, catapulting James to his death 84 feet below. Two other window washers were seriously injured.

That morning, the Occupational Safety and Health Administration launched an investigation. OSHA cited the Holden, Mo., window-cleaning company — which had a fatal accident only four years earlier — for serious safety violations in James’ accident, records show.

The company’s fine: $2,700.

So begins a Kansas City Star series on OSHA and workplace deaths, focusing on the low penalties for workplace deaths. I'm officially nominating Star reporter Mike Casey for Confined Space Journalist of the Year. Instead of just regurgitating the usual "on one hand...on the other hand" debate, Casey and Star staff analyzed 27,281 Kansas records in the Occupational Safety and Health Administration’s inspection database from July 1972 through January 2005, looked at trends in average fines and industries with the most fatal or serious injury accidents, interviewed more than 100 people and reviewed thousands of pages of records for these stories. And with the National Institute for Computer-Assisted Reporting in Columbia analyzed the 3.3-million record OSHA database for the United States and its territories

What has emerged is a tragic indictment of this country's commitment to ensure a safe workplace for every American worker, a story that would be news if it were actually news. Unfortunately, as the Star found, James's story is just business as usual for the agency charged with protecting the health and safety of American workers:

The Star found that in 80 such fatal and injury accidents, half of the fines Kansas City area employers paid were $3,000 or less. Regulators and OSHA lawyers reduced employers’ initial fines by nearly 60 percent. Adjusted for inflation, fines last year averaged less than they were in 1972.

And in three accidents that killed five area workers, OSHA changed its most serious citations from willful violations to “unclassified” — removing the word “willful” in describing the violations — and then significantly reduced the fines.

Nationwide, fines were even lower in the last decade. Half of the fines employers paid were $2,500 or less in fatal and injury accidents involving at least one serious violation.

Many experts said low fines were a symptom of the agency’s weakness, even when taking enforcement action in the worst accidents.

But the current administration defends the "penalties," having discovered new laws of human nature: people actually don't respond to fines or punishments -- I guess because they really just wanted to do the right thing all along:

“As far as we’re concerned, the amount of the penalty is incidental to the accomplishment that we get as the result of that inspection,” [OSHA Regional Administrator Charles] Adkins said.

But even former OSHA administrators decried the low fines.

“Fines are not a deterrent,” said Charles Jeffress, who led the agency in the Clinton administration. “The level of fines that Congress has authorized is an insult to the American worker.”

Jerry Scannell, an OSHA administrator in the administration of President George H.W. Bush, said: “It’s almost like chump change with some companies.”

OSHA’s own policies state that penalties should be “sufficient to serve as an effective deterrent to violations.”

But the agency is limited by law to maximum civil fines of $7,000 for each serious violation and $70,000 for each willful violation. Those maximums have not been raised since 1991. And OSHA’s policies allow it to reduce fines for companies with fewer than 251 employees and for other factors.The rest of the article joins the debate over whether OSHA fines do any good. Advocates of stronger penalties argue that because OSHA can visit relatively few workplaces every year, big penalties are needed to set an example. But even the Star doesn't realize how few workplaces OSHA is able to visit, claiming that "It would take inspectors many years to visit every workplace under their jurisdiction."

Years? Not even close. Actually, according to the AFL-CIO, on a national basis, it would be closer to a century for OSHA inspectors to visit every workplace in the country.

Interestingly, opponents use the same facts to argue against higher penalties:

“A lot of employers … are never going to see an OSHA inspector, and that fear is never going to motivate them,” said Marc Freedman. “I’m not convinced employers look at the OSHA citation situation in deciding whether they’re going to do the right thing in protecting their employees.”

Indeed, some businesses said the fear of workers’ compensation costs is a bigger factor in eliminating safety hazards than OSHA fines.

Actually, if anyone thinks that either fines or workers comp is an adequate deterrent, I have a 15 foot deep unshored trench I'd like you to climb down into.

Susan Baker, a professor of public health at Johns Hopkins University who has expertise in occupational safety, argues that “Until the fine for ignoring a hazard is bigger than the cost of fixing the hazard, a lot of employers won’t do anything.”

Well, OSHA has a long way to go before its penalties are that high.

The Star also discusses an OSHA innovation -- the "unclassified penalty."

About 15 years ago, OSHA began changing some of its willful safety violations — its most serious charge — to “unclassified.”

The reclassification does not change OSHA’s findings, but it removes the words “willful,” “repeat” or “serious” in describing the nature of the violations, OSHA’s Adkins said.

OSHA records show that the agency uses the unclassified citations as a “settlement tool” to correct safety hazards quickly and avoid lengthy litigation. The change also allows employers to avoid the stigma of being labeled a willful violator, records noted.

But the newspaper found that changing willful violations to unclassified in at least three local fatal workplace accidents also was accompanied by dramatically lower fines.

Adkins said the agency has a policy of collecting at least 80 percent of a proposed penalty in settlements that involve unclassified violations, but he acknowledged, “That doesn’t always occur.”

Indeed. Casey goes on to cite three cases where OSHA penalties were reduced from 40% to 72% after the penalties were downgraded from "willful" to "unclassified.

“I think it’s really outrageous,” said Peg Seminario, director of safety and health for the AFL-CIO. “There should be no unclassified citations, particularly in the case of fatalities.”

Oh, and by the way, don't waste a lot of time looking for "unclassified penalties" in the OSHAct -- because they don't exist. Congress must of overlooked the benefits of helping employers avoid the stigma of being known to their friends as willful killers.

And then there's this old news:

Killing Workers Is A Misdemeanor, according to the OSH Act

That fact is nothing new to Confined Space readers, but I'm thinking most Americans would be shocked. As Clinton Administration OSHA director Charles Jeffress says: “By saying, ‘It is a misdemeanor to willfully kill a worker’ just underscores the lack of value put on a worker’s life by Congress.”

“They’ve gotten out of the standards business.”

So says Eula Bingham, who led the agency in the Carter administration. Even Jerry Scannel of the Bush I administration agrees:

“Standards development has been slow — slower than it should be.” Scannell suggested that Congress or the Labor Department could require the agency to establish safety and health standards within three years.

Hmm, interesting idea. I wonder what current OSHA leadership thinks about that suggestion?

The Star requested an interview with acting OSHA Administrator Jonathan Snare to discuss standards, but he declined. A Labor Department spokesman said it was inappropriate for Snare to comment while the nomination of Edwin Foulke Jr. as OSHA administrator was pending before the Senate. Foulke also declined to be interviewed.

In a written statement, OSHA said the Bush administration had issued some standards, but not ones that would have wide economic impact.

As usual, this excellent series leaves me with mixed emotions. Although it's great that the Star invested so much inand resources developing this series, it also points out how pathetic most of the rest of the media is in this country. There's no reason to believe that the situation in Kansas is unique. There should be reporters in every state busy writing similar articles. And readers should rise up and force politicians to try and defend the underfunding and understaffing of OSHA. They should be forced to go before the parents, spouses and children of those who gave their lives so cheaply to earn a living and defend their refusal to strengthen OSHA's penalty structure.

And anyone who whines about how oppressed small businesses are by evil OSHA regulations, or dares to support the shameful legislation in Congress that further weakens OSHA should be kicked unceremoniously out of office.

Oh, and one more thing, Mr. Casey. For your next story you might want to look into a group of Kansas workers who are in even worse shape than the employees you just covered: public employees in Kansas (and 26 other states) who have no OSHA protection. Another story that shouldn't be news.

Kansas City Star Series

• OSHA: Discounted lives
• The prism of partisan politics offers contrasting views of OSHA’s role
• Four other deaths leave lasting pain
• About the Occupational Safety and Health Administration
• How the project was done
• Glossary

Manslaughter Charges In Trench Death

A Staten Island, New York, construction company owner, Ken Formica, owner of Port Richmond-based Formica Construction, was charged with manslaughter yesterday in the 2003 death of a Mexican laborer, Lorenzo Pavia. Pavia was crushed to death under tons of earth when a 15 foot deep unshored trench collapsed on top of him and then decapitated in the rescue attempt.

What is significant about this is that the prosecutor used manslaughter laws instead of the Occupational Safety and Health Act which carries much lower penalties. Until the OSHAct is changed to allow stiffer penalties that will effectively deter these types of preventable tragedies, we need to strongly support aggressive prosecutors who apply tougher criminal penalties to workplace incidents.

I wrote about this first tragedy last May, basing it on an excellent article by Staten Island Advance reporter Heidi Shrager, who went far beyone the usual "trench collapsed, worker died, terrible accident, everyone's sad, one of those things, move on" stories that we see by the dozens every week.

According to yesterday's indictment,

Formica allegedly knew the 15-foot-deep, waterlogged trench that he helped dig was deadly when he directed Lorenzo Pavia, 39, to descend into it, according to the seven-count indictment unsealed yesterday.

"No worker, regardless of his or her job, should be exposed to the dangers posed by an unshored trench," said District Attorney Daniel Donovan during a press conference after Formica's arraignment in state Supreme Court, St. George. "The lives of construction workers in our community are not a dispensable commodity. Failure to protect workers in this way is a crime and will result in your prosecution."

In addition to second-degree manslaughter, Formica was charged with criminally negligent homicide, first-degree reckless endangerment, and third-degree assault.

In New York, "A person is guilty of manslaughter in the second degree when...He recklessly causes the death of another person."

Formica's attorney said it was just an accident:

"We believe this was a tragic accident," said Joseph V. Sorrentino, Formica's defense lawyer. "This is a guy with a stellar safety record who cooperated from the beginning of the investigation. There was no attempt here to cover up or to run from responsibility."

Formica, the "guy with a stellar safety record," had received a previous citation nine months before Pavia's death. In that case, an inspector from the city Department of Transportation ordered one of Formica's workers out of an unsafe trench, and warned Formica to follow safety regulations.

Formica faces 15 years in jail. OSHA had previously fined the company only $15,000 even though there were 14 serious and one willful violation. Had OSHA sought a criminal prosecution under the OSHA Act, the charge would have been a misdemeanor with a maximum of 6 months in jail. This case, is therefore, particularly significant:

"Indictments are extremely rare," said Jordan Barab, a former OSHA official who writes extensively about the issue on his worker safety Web log. "The real importance here, beyond punishing the management of the company itself, is the message it will send to other employers. They can't take shortcuts lightly. There is a major price to be paid for putting someone's life at risk just to do things more quickly, or make more money."

Under OSHA regulations, trenches deeper than 5 feet must be either shored or sloped. During his deposition after Pavia's death, Formica admitted to OSHA investigators that he made a mistake by leaving the trench unshored, and was at a loss as to why that was the case.

OSHA charged the company with 15 violations totaling almost $15,000. All the fines were deemed "serious" except for one: The charge of not shoring the trench, which was deemed "willful," the most serious kind of offense and the required classification in order to criminally prosecute under the OSHA Act. Still, prosecutors charging defendants with violating the OSHA Act can seek only a misdemeanor charge and a maximum penalty of six months.

Donovan's felony charge of second-degree manslaughter represents "a more creative way" to tackle the problem, said Barab.

Prosecutors are "drawing the parallel between killing someone in a bar fight and killing them in the workplace," he added. "They are taking a law used for other purposes and applying it to the workplace, which I think, given the weakness of the OSHA Act, is a very good thing."

OSHA, which is attempting to focus more on criminal penalties after being embarassed by a couple of NY Times series in 2003, assisted in this indictment.

Labor officials and advocates hailed the indictment as a huge step toward ensuring workplace safety, especially for undocumented immigrant workers like Pavia, who typically are ignorant of regulations, hesitant to report employer violations to regulators and speak little English.

While workplace fatalities are on the decline in the general population, they are soaring among Hispanic and immigrant workers, said Robert D. Kulick, the director of the federal Occupational Safety and Health Administration branch in Avenel, N.J., whose staff worked with Donovan's office in the indictment.

Bills have been introduced in the House of Representatives (by NY Congressman Major Owens) and in the Senate (by MA Senator Ted Kennedy) that would change the OSHAct to make corporate manslaughter a felony offense, with the possibility of sentences that might range from no time behind bars to up to 10 years in prison. Upon a second offense, the maximum sentence could be doubled.

God to Bill Moyers. Moyers to Journalists: Who Will Tell The People To Save The Earth?

I was lucky enought to be invited to do a panel and the annual Society of Environmental Journalists Conference in Austin, Texas, last weekend. The highlight of the day I was there was a luncheon speech by one of my heros, Bill Moyers. Part of the speech was the usual (and justified) criticism of the Bush Administration (and it's business cronies) for its destructive environmental policies

Wistfully remembering how Roosevelts of both parties challenged the power of corporations, Moyers notes that the bad times have returned:

But 100 years later mighty corporations are once again the undisputed overlords of government. Follow the money and you are inside the inner sanctum of the Business Roundtable, the National Association of Manufacturers, and the American Petroleum Institute. Here is the super board of directors for Bush, Incorporated. They own the administration lock, stock and barrel, and their grip on our government’s environmental policies is leading to calamitous consequences.

Once the leader in cutting-edge environmental policies and technologies and awareness, America is now eclipsed. As the scientific evidence grows, pointing to a crisis, our country has become an impediment to action, not a leader. Earlier this year the White House even conducted an extraordinary secret campaign to scupper the British government’s attempt to tackle global warming—and then to undermine the U.N.’s effort to stabilize greenhouse gas emissions. George W. Bush is the Herbert Hoover of the environment. His failure to lead on global warming means that even if we were dramatically to decrease greenhouse gases overnight we have already condemned ourselves and generations to come to a warming planet.

But Moyers didn't just curse the darkness. Using the story of Noah, he also attempted to light a candle to show us a way that environmental journalists might be able to reach the religious folk that the Republicans have gotten so good at catering to and taking advantage of:

Both scientists and Noah possess knowledge of a potentially impending global catastrophe. They try to spread the word, to warn the world, but are laughed at, ridiculed. You can almost hear some philistine telling old Noah he is nothing but a “gloom and doom” environmentalist,” spreading his tale of abrupt climate change, of a great flood that will drown the world, of the impending extinction of humanity and animals, if no one acts.

But no one does act, and Noah continues hearing the word of God: “You are to bring into the Ark two of all living creatures, male and female, to keep them alive with you.” Noah does as God commands. He agrees to save not only his own family but to take on the daunting task of rescuing all the biodiversity of the earth. He builds the Ark and is ridiculed as mad. He gathers two of every species, the climate does change, the deluge comes as predicted. Everyone not safely aboard drowns. But Noah and the complete complement of Earth’s animals live on. You’ve seen depictions of them disembarking the Ark beneath a rainbow, two by two, the giraffes and hippos, horses and zebras. Noah, then, can be seen as the first great preservationist, preventing the first great extinction. He did exactly what wildlife biologists and climatologists are trying to do today: to act on their moral convictions to conserve diversity, to protect God’s creation in the face of a flood of consumerism and indifference by a materialistic world.

And he issued (or re-issued) a challenge to journalists:

We are journalists first, and trying to reach one important audience doesn’t mean we abandon other audiences or our challenge to get as close as possible to the verifiable truth. Let’s go back for a moment to America’s first Gilded Age just over a hundred years ago. That was a time like now. Gross materialism and blatant political corruption engulfed the country. Big business bought the government right out from under the people. Outraged at the abuse of power the publisher of McClure’s magazine cried out to his fellow journalists: “Capitalists…politicians...all breaking the law, or letting it be broken? There is no one left [to uphold it]: none but all of us.”

Then something remarkable happened. The Gilded Age became the golden age of muckraking journalism.

***

The Gilded Age has returned with a vengeance. Washington again is a spectacle of corruption. The promise of America has been subverted to crony capitalism, sleazy lobbyists, and an arrogance of power matched only by an arrogance of the present that acts as if there is no tomorrow. But there is a tomorrow. I see the future every time I work at my desk. There, beside my computer, are photographs of Henry, Thomas, Nancy, Jassie and Sara Jane—my grandchildren, ages 13 down. They have no vote and they have no voice. They have no party. They have no lobbyists in Washington. They have only you and me—our pens and our keyboards and our microphones—to seek and to speak and to publish what we can of how power works, how the world wags and who wags it. The powers-that-be would have us merely cover the news; our challenge is to uncover the news that they would keep hidden.

Go forth...

Just Another Trench Death: Well Covered For A Change

A few days ago I wrote about a new federal program that was using violations of environmental and other laws to generate huge fines and jail terms against employers whose willful violation of OSHA regulations ended in the death of a worker. Laws other than the Occupational Safety and Health Act had to be used because the OSHAct itself doesn't allow for large enough penalties to deter serious and willful violations of OSHA standards.

But the question I asked at the end of that review was

Where does this leave the guys crushed in collapsing trenches or who fall two stories from an unsafe scaffold -- and no environmental law as violated? OSHA handed down 446 willful citations in Fiscal Year 2004 (compared with 607 in FY 1999). It is unclear how many of those involved the death or serious injury of a worker, but the handful of cases that OSHA is able to prosecute with the assistance of the EPA or Postal Service will mostly likely not apply to more than a small handful of these.

This is one of those stories, covered in an excellent article in the Staten Island Advance:


Lorenzo Pavia was buried alive in a West Brighton trench collapse 16 months ago. His oldest son is now head of the family:

Jesus was saddled with one intractable burden: facing the reality that the gruesome death of his father -- a 39-year-old Mexican worker who was buried under thousands of pounds of earth when a deep trench caved in because it was unshored -- will not automatically lead to jail time or a multi-million dollar settlement.

"My father never wanted to go in," said Jesus of the trenches that were a common part of his father's job for Formica Construction. Polite and soft-spoken, Jesus' eyes narrowed and his jaw clenched as he recalled the evenings his father would return from work complaining. "If they don't do the job, they don't get out of work. So what's my father gonna do?"

For Jesus, justice will likely amount to little more than $550 paid to his mother, Paula Pavia, every 15 days in workers' compensation. The yearly sum of $13,383 will come until she remarries or passes away.

An investigation by the federal Occupational Safety and Health Administration revealed that Ken Formica, the site supervisor and Pavia's employer, made a conscious decision to violate the safety standard that all trenches deeper than five feet must be shored or sloped.

"It was my mistake," Formica told OSHA in his deposition, two months after the accident.

Yet the company was fined just $14,000, about $3,000 less than what the city fines firms for posting signs without a permit.

The City of New York, as well as OSHA are increasing the amount of outreach and training they are doing to try to prevent trench collapses. But there are problems:

Experts say the agency lacks the manpower to widely enforce its rules. This is a problem since small construction firms trying to cut costs will often choose time over safety, they add.

For instance, the simplest, quickest type of shoring is a box that can be dropped into an open pit known as a trenchbox, said Jordan Barab, an ex-official with the federal Occupational Safety and Health Administration who writes extensively about the issue on his worker safety Web log.

But when there are multiple utility lines, as there were in the trench that killed Pavia, shoring becomes a much more painstaking, time-consuming process, said Barab. Workers need to install separate braces as they dig further down.

"There are a lot of little construction companies around, everyone's trying to underbid everyone else, time is money," he said. "Everyone thinks maybe my luck will hold out this time."

Ken Formica may have been relying on luck on a cold December afternoon in 2003, when he and his men set about hooking up a sewer main for new townhouses at the corner of Taylor Street and DeGroot Place. Lorenzo Pavia and a second man, John Paci, then 66, descended a 15-foot trench that was muddy at the bottom from heavy rain and snow that fell just two days before.

In his OSHA deposition, Formica said he often chose Pavia for trench work because he was "my most skilled." When asked what his policy was for excavation safety, he told the investigator, "Make it safe. Make a safe hole."

But when pressed for details, he revealed that his company had no written safety and health program, and that he lacked basic knowledge required to ensure a safe trench, such as soil types.

At about 3 p.m., the workers were done, and Formica, watching his men from the driver's seat of an excavator, told them to come out of the hole.

"They were walking towards the ladder, and that's when it collapsed," he told OSHA.

Horrified at seeing Pavia swallowed entirely by earth, Formica grabbed the wheel of the excavator. But instead of scooping out Pavia, the backhoe decapitated him. The autopsy showed that by that time, Pavia had already been asphyxiated.

Pavia's is not, of course, an isolated case:

The percentage of construction fatalities in which the victim was Hispanic more than doubled between 1993 and 2003, to 23 percent from 11 percent, according to the U.S. Dept. of Labor's Bureau of Labor Statistics.

"There's all these safety rules and regulations, and they're never followed," said Jeffrey Manheimer, a Manhattan-based personal injury lawyer who specializes in workplace injury cases among day laborers.

Citing the statistic that most fatalities happen on non-union job sites, he added that the workers "certainly don't have the clout to complain about any conditions."

Staten Island hosts its share of Mexican workplace tragedies. In September, 2003, Port Richmond resident Pedro Munoz de Leon was crushed and killed by the boom of a crane that snapped off, as he was working on dry dock in West Brighton. Not long before that, Librado Velasquez, a 44-year-old worker from Port Richmond, had his right arm and leg crushed in a forklift accident while working in New Jersey.

Lorenzo Pavia died in a notorious type of construction accident, a trench cave-in. In 2003, 15 of the country's 48 trench cave-in fatalities, or 31 percent, were Hispanic, according to BLS data. OSHA's analysis of internal investigations puts the percentage even higher, at 44.

Experts say trench cave-ins happen in part because people underestimate the soil's speed and power.

"It's like a car falling on you," said Scott Schneider, director of occupational safety and health for the Labors' Health and Safety Fund of North America. "It can collapse in about half a second. You don't have time to get out."

Finally, I want to extend some much deserved praise to the journalist who wrote this article, Heidi Shrager of the Staten Island Advance. You all know that one of my pet peeves is preventable trench collapses -- and the other is journalists who write short formulaic articles about workplace deaths that leave the impression that these "accidents" are somehow surprising, unexpected and just plain bad luck.

Those few journalists who take the time to talk to people and do the research necessary to show that most of these tragedies are preventable, and that the safeguards this society has established are not working effectively -- deserve our praise, our support and our thanks. I believe it was David Barstow's two series in the New York Times that forced the federal government to finally start looking for more creative ways to issue meaningful penalties against some employers. And if we have any hope of making more significant changes in this country,it will be journalists like Heidi Shrager writing similar stories in small papers around the country about the thousands of preventable deaths that happen every year.

Good journalism and organizing.

But with the demise of the AFL-CIO's health and safety department and total corporate/Republican control in Washington, the media may be our best hope for now.

.

Worker Advocates Win Journalism's Polk Awards

Two safety advocates whose articles have been covered in Confined Space have won Polk Awards awards for extraordinary journalism. The 2004 Awards will be presented at a luncheon on April 21, 2005.

Walt Bogdanich of the New York Times won the national reporting category, his fourth Polk award, for his series on how railroad companies were able to sidestep regulations.

Justin Pritchard, the AP's news editor for Southern California, won the labor reporting prize for his investigation into the high rate of work-related deaths among Mexican workers in America.

These are the kind of articles (along with David Barstow's articles on Death in the Workplace and Andrew Schneider's asbestos coverage) that you should be showing to your local reporters when they don't quite know how to handle a workplace accident. These journalists know how to investigate the root causes of these incidents and show how politics affects peoples' chances of staying alive and healthy. But they can also show other journalists the fame and awards that can be won by following up on these stories that are otherwise relegated to a few paragraphs in the back pages.

All of Bogdanich's original articles can be found here.

Confined Space articles that cover Bogdanich's investigations are here:

Blood On (and near) The Tracks

Head of Federal Railroad Administration Resigns Under Pressure

Behavioral Safety Comes To The Railroads

Look Both Ways -- And Then Pray

As If That Wasn't Bad Enough...More on Rail Safety

Links to Pritchard's orginal articles can be found at the Polk Awards webpage (scroll down). Confined Space stories based on Pritchard's articles can be found here:

What is OSHA Doing About Immigrant Worker Safety?

Mexican Workers in the U.S.: Impaled, Shredded in Machinery, Buried Alive


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Rights? What Rights? Hispanic Workers Continue to Die On The Job

The number of workplace fatalities among Hispanic workers dropped slightly last year, according to the Bureau of Labor Statistics, but their rate of fatalities among remains 25 percent higher than the rate recorded for all workers, and foreign-born Hispanic workers are more likely to die than Hispanics born in this country.

Two students at the Graduate School of Journalism at UC Berkeley have written an interesting article about the lives and deaths of Hispanic workers and why the problem remains. They write of the death of 27-year old Ignacio Calixtro, who had gone to the U.S. from Mexico to raise money to support his ailing mother. He was killed when an attachment on a forklift came loose and a wall fell he had been helpign to raise fell and crushed him.

They also write of the delemmas faced by those who work construction jobs every day in this country without even knowing their rights, much less being able to stand up for them:

In Contra Costa County ... where new housing developments stretch as far as the eye can see, immigrant day laborers can be found most mornings on Concord's Monument Boulevard, amid the tidy strip malls, hoping general contractors will hire them to work as roofers, to dig or to do odd jobs on construction sites.

One of those laborers, Francisco Cid, from Mendoza, Mexico, has been working on construction projects in the United States for eight months, sending whatever money he can spare home to support his wife and four kids. He usually makes $10 per hour, often working

10 to 14 hour days without overtime pay. He said the most dangerous jobs are the ones where he works up high, such as roofing and painting, and he rarely wears a harness.

"I'm scared sometimes, but I have to do it because I need the money," said Cid. "If you say 'I'm scared,' then (the bosses) say 'I'll find another.'

"If you die, the company doesn't have to pay anything," Cid said. Workers' rights advocates said that is a common misconception among Latino workers. California worker's compensation laws apply to any individual hurt or killed on the job, documented or not.

Day laborers like Albarado and Cid are often undocumented, as was Calixtro, but Flores says immigrant workers who are citizens or have the right to work in this country are as likely to be abused.

"Employers aren't honest. They don't tell workers their rights," said Flores.

Flores often works from the offices of the Instituto Laboral de la Raza in San Francisco's Mission District. The organization's bilingual staff helps immigrant workers file worker's compensation claims for injuries and back wages. Sarah Shaker, the organization's executive director, estimates "virtually none" of the 140 new workers that seek help each month are aware of their rights.

In other words, what we have is a group of workers who don't know their rights, who are willing to work long hours with low pay, under dangerous conditions and who are afraid to complain because they need the money. It's an old and all-too-common story, but one we shouldn't be living with in 2004 in the United States of America.

What is OSHA doing About Immigrant Worker Safety?

Warning: Long article. Printer Friendly Version is here.

John Henshaw is pissed off. Why? A couple of weeks ago, AP reporter Justin Pritchard published an investigation into the workplace deaths of Mexican workers in the United States. Pritchard had written that "The jobs that lure Mexican workers to the United States are killing them in a worsening epidemic that is now claiming a victim a day, an Associated Press investigation has found."

In a letter responding to the AP investigation, OSHA Director Henshaw wrote that the AP investigation was "full of mischaracterizations" and wrong from the first sentence. Mexican worker deaths, while sharply rising for a decade, had fallen by 8.3 percent in 2002. Henshaw credited "OSHA's effort" for the drop.

In a follow-up article, Pritchard notes that while Mexican worker deaths did fall in 2002,

the good news did not extend to the overall Hispanic immigrant population the department is trying to reach. Workers in that group -- which includes Central and South Americans, as well as Mexicans -- continued to die in record numbers in 2002, federal data show....

The decline in Mexican-born worker deaths came during the safest year on record for the overall work force in the United States. From 2001 to 2002, total on-the-job deaths fell from 5,915 workers to 5,524 workers -- an unprecedented 6.6 percent drop.

Deaths among U.S.-born Hispanic workers declined at an even greater rate in 2002. However, deaths among all foreign-born Hispanics rose that year over 2001, from 572 to 577. It was also the first year Mexican-born worker fatalities fell since 1994-1995, when deaths dropped from 213 to 206.

What's the Real Story?

Reflecting rising media attention, I have written frequently about the plight of immigrant -- especially Hispanic -- workers in this country. Despite the fact that the numbers for specific nationalities may vary from year to year, the overall trend in immigrant health and safety is tragically disheartening. OSHA claims to be making a serious effort to address this problem, and takes full credit for whatever favorable trends the data picks up.

With all of the media attention to this problem, and OSHA fighting back, it may be a good time to take a minute to look at the problem and OSHA's response.

What Is the Problem?

First, there is no doubt, whatever the trends in specific nationalities, that, as the AP investigation states, there is a worsening epidemic of workplace death among immigrants in this country. (I have posted recent items based on media reports here, here, here, here, here and here. And The Weekly Toll is always filled with stories of immigrant worker deaths.)

Most of the causes are also well known.

• Lack of Knowledge About Safety and Health Hazards: The jobs that many immigrants do are new and they are not familiar with the hazards of the jobs. Furthermore, they generally do not know about OSHA or their right to request and inspection and have their name kept secret
  
• Language Barrier: This goes deeper than inability to speak or understand English. Many immigrant workers are illiterate in their native language. Spanish language fact sheets don't help in that situation.
  
• Exploitation: Immigrant workers are frequently sent to do the most dangerous work.
  
• Intimidation: This is closely related to exploitation. Immigrant workers are much less likely to call OSHA -- assuming they know about their rights -- than American citizens. If they are illegal, In addition, they often fear government officials, even those who are there to help them. This stems not only from the fears imported from their own country, but also fear of the "migra."

What Has OSHA Been Doing? Is It Effective?

How has OSHA been addressing these issues? OSHA Director John Henshaw takes credit for any improvement in the working conditions of Hispanic workers

We launched a three-prong attack combining vigorous enforcement of health and safety standards, outreach to the Latino community and effective education.

A Departmental Hispanic Workers Task Force was created to coordinate this effort, and it is working, as evidenced by the 2002 drop in workplace fatalities among Hispanic workers generally and Mexican-born workers specifically.

Truth? Stretching the truth? LiesDistortions? Let's explore.

First, Henshaw points out that OSHA and other DOL agencies have been forming alliances with Hispanic organizations, including Mexican consulates, across the nation. And this is true. Some regional offices have initiated and joined into broad-based innovative coalitions designed to reach out to Hispanic workers. I wrote last October about the Justice and Equality in the Workplace, a coalition organized in July 2001 to help inform Hispanic immigrants about their rights as workers and to uncover illegal employment practices and discrimination.

The coalition is made up of the U.S. Department of Labor's Office of Federal Contract Compliance and Wage and Hour Division, Equal Employment Opportunity Commission, the Mexican, Colombian, Guatemalan and El Salvadorian consulates, the City of Houston, the Harris County AFL-CIO, the Catholic Diocese of Galveston-Houston, the Mexican American Legal Defense and Educational Fund, the Hispanic Contractor's Association in Houston, the Associated General Contractors of America's Houston chapter, the Houston Chamber of Latino Business Owners as well as OSHA. On the whole, it seems to be doing good work and spawning similar programs elsewhere.

Second, Henshaw claims that "More information than ever before is now available in Spanish about job safety and health via the Web, in publications and through specialized training courses." Umm, I have some serious problems with this assertion. First, technically, it is true that "more" information is available than ever before in Spanish. But that's not saying much. Check out the OSHA's Spanish language publications. There are about a dozen publications, many of which were published in previous administrations, some as far back as the 1980. There is also a new set of ten fact sheets that seem to be targeted at employers, including one on health and safety precautions for your new business, as well as fact sheets on asbestos, workplace violence and other topics. The Personal Protective Equipment fact sheet has no mention of who is supposed to pay for the PPE, a contentious issue for the agency. A standard has been on hold since the Clinton administration that would have required employers to pay for most PPE.

And it's true that there is more Spanish language material on the web, although I have serious reservations about how accessible this information is to the average immigrant worker.

Even written materials have their problems

"We are talking about a community that prefers to stay in the shadows," said Jenny Sarabia, executive director of the Indiana Commission on Hispanic/Latino Affairs.

"Translating brochures and signs into Spanish is not enough," she added, because many of the new Hispanic arrivals in Indiana are unable to read English or Spanish.

I have no idea what Henshaw means by "specialized training courses" in Spanish. There is not one Spanish language training course listed on the OSHA Training Institute Course Schedule. The only Spanish language training that I know of is being conducted by grantees under the Susan Harwood Training Grant Program which the Bush administration has been attempting to eliminate since it came into office. The $11.2 million Harwood program was refocused on immigrant worker outreach in 2000 during the Clinton Administration. The grants were extended from 1-2 year programs to 5 year programs.

The current administration cancelled the second round of 5-year grants, attempted unsuccessfully (thanks to Congress) to cut the first 5-year round (which concludes this year) and has proposed to eliminate the $11 million Harwood grants and replace them with a $4 million program that would depend on electronic (internet and CD-Rom) training instead of actually having classes with an instructor. Referring to the proposed training cuts, Henshaw argued

“I would not use the word ‘cutting',” Henshaw said referring to the proposed $6 million decrease in the training grant program. “We do not feel the training program should be based on one-on-one training. We are developing materials and technology to get information out to more people.”

How all of this amounts to "effective education" I'm not sure.

There is another troubling aspect to OSHA training. Ultimately, it is not OSHA, but the employer who is responsible for training its workers. Tom O'Connor, director of the National Council on Occupational Safety and Health, wrote a letter to the editor of the Raleigh News and Observer, responding to a article about two Hispanic workers that were killed in separate construction accidents less than an hour apart in North Carolina notes that

Your report stated that some fatalities have involved Hispanic workers who "worked for companies that did not have the resources to provide training in Spanish." That is not good enough. It is a law, not an option. There are resources in the private sector, among nonprofit organizations and within OSHA to assist employers with this critical training. Those employers who fail to provide such training and whose workers die as a result should be prosecuted criminally.

Third Henshaw claims that "More Spanish-speaking inspectors and outreach staff are being hired." More than what? Pritchard's research does not validate Henshaw’s contention:

Safety experts inside and outside OSHA say the agency's outreach efforts are well intentioned, but beset by limited funding and a lack of Spanish-speaking staffers.

Even California is having problems hiring Spanish speaking OSHA employees.

The non-English speaking workforce of California is estimated to be more than 6 million workers, over one-third of the working population. Yet CalOSHA has only 29 inspectors (or 16% of the total) who are fluent in a language other than English. Twenty of these speak Spanish.

North Carolina is having similar problems.

The state office charged with enforcing safety in North Carolina workplaces is fighting an uphill battle trying to find and keep employees who speak Spanish -- a key asset in the effort to educate and train more workers.
The Labor Department's division of occupational safety and health has only seven bilingual training and compliance officers in a staff of 240. Many times, Spanish speakers are lured to private-industry jobs that pay better. To alleviate the problem, the agency recently sent two people to immersion courses in Costa Rica and Mexico.

And federal OSHA is in sadder shape:

Even some of OSHA's own Hispanic outreach officers say they need to do more. Marilyn Velez, OSHA's sole Spanish-speaking outreach worker in the eight-state Southeastern region, isn't sure what caused the drop from 28 to 8 Mexican-born worker deaths in Georgia in 2002. But she doesn't think workers were taking fewer risks, or that bosses were more insistent on safety.

"We knew that it was not just because it was outreach," said Velez.

More troubling, she said, is that Hispanic worker deaths appear to have risen in Georgia again in 2003.

Finally, in addition to outreach, Henshaw argues that "More inspections are being targeted to industries with high injury rates that employ large numbers of Hispanic workers, such as construction and landscaping." I don’t have the statistics with me at the moment, but I think OSHA is generally trying to target these areas. The question is how effective that targeting will be if immigrant workers are not aware of what OSHA is, how it works or if they can be protected against retaliation by employers.

A recent study of immigrant workers in California, Voices From the Margins: Immigrant Workers: Perceptions of Health and Safety in the Workplace, by the UCLA Labor Occupational Safety and Health Program (LOSH) found that Hispanic workers were not familiar with governmental agencies which could assist them. Less than 10 percent had ever heard of Cal-OSHA and no workers surveyed had contacted CalOSHA for assistance. Some of the workers did not contact governmental agencies because of their immigration status and also because of experiences in some of their home countries which led them to perceive government as “unfriendly” to workers.

Finally, even if immigrant workers are aware of what OSHA is and what rights they have, how secure are they that OSHA will not turn them into “la migra,” or that OSHA will be able to anything to help them if their employer retaliates against them for exercising their health and safety rights?

And then there is the effect of the Supreme Court’s 2002 Hoffman Plastics decision which held that undocumented immigrants were not entitled to back wages – even after being illegally fired for union activity – because their job was “obtained in the first instance by a criminal fraud." The Department of Labor has stated that it will still enforce the Fair Labor Standards Act, even for undocumented workers, because the FLSA addresses wages for time actually worked, whereas the Hoffman Plastics decision addresses time that would have been worked had the employee not been illegally fired. Secretary of Labor Elaine Chao has stated that

Regardless of a workers immigration status, the Labor Department remains committed to the enforcement of all protections offered by the Fair Labor Standards Act, the Mine and Safety and Health Act, and the Department’s other core labor statutes. Safety has no nationality—and every worker in this country deserves a safe workplace.

How states handle the Hoffman Plastics decision and how it affects workers’ OSHA rights is not clear, according to the National Employment Law Project.

The California Department of Industrial Relations recently posted a statement on its website clarifying that it will “Investigate retaliation complaints and file court actions to collect back pay owed to any worker who was the victim of retaliation for having complained about wages or workplace safety and health, without regard to the worker’s immigration status.”

This all sounds good on paper, but what about the real world? First, there is nothing on the OSHA webpage, and no announcement or interpretation that I am aware of that clarifies what effect the Hoffman decision has on OSHA’s willingness to investigate retaliation against undocumented immigrant workers. I have heard reports that some OSHA regions take these cases, while other do not. And how does the federal government force an employer to re-hire an undocumented worker? What if the employer’s next action is to call immigration? Is OSHA going to rule that calling immigration is an illegal form of retaliation and demand that Immigration allow the worker to be rehired? It doesn’t make much sense. Nor does President Bush’s immigration proposal make workers more secure about exercising their health and safety rights because the proposal requires workers to be "sponsored" by their employer. What's to keep an employer from suddenly deciding that he has a few less openings to sponsor if a worker complains about safety and health conditions?

Can OSHA Take Credit?

So is John Henshaw right? Is the 2002 improvement in Mexican worker deaths due to OSHA’s efforts?

Probably not. (But it was a great letter, John. Thanks for playing.) First, OSHA’s Hispanic worker initiative wasn’t announced until the end of February 2002. An 8% drop in fatalities as a result of a 10 month-old program would be impressive, indeed.

Pritchard reports that experts at the federal Centers for Disease Control (NIOSH) and the National Safety Council are skeptical whether any improvements can be credited to OSHA’s recent outreach initiative:

Workplace safety experts at the federal Centers for Disease Control and the National Safety Council, a nonprofit public service organization, said no research substantiates a link between OSHA's fledgling outreach and the drop in Mexican worker deaths.

"It's not something that you throw a small amount of money at and issue some pamphlets and you're going to see dramatic changes," said David Richardson, a University of North Carolina-Chapel Hill professor of epidemiology who tracks worker deaths in the South. "It's a slow battle."

So why the decline in Mexican worker deaths in 2002?

According to work safety specialists, statisticians and even some federal outreach workers, there's no evidence any one effort is responsible for the improvement in 2002. Possible factors include the economic recession that followed the September 2001 terror attacks and changes in immigration and border security. Mexican-born workers have stayed longer in the United States, gaining experience and perhaps decreasing their willingness to take risks.

"It's good that they're doing outreach," says Dr. Sherry Baron, a lead CDC researcher on immigrant workers. However, "a change in one year, it's hard to conclude anything. Part of it is, we need more time."

So what is to be done?

What can OSHA and others do to improve the plight of immigrant workers in this country.

The UCLA/LOSH study had four recommendations. The first recommendation was to

Establish a multi-year capacity building grants program for community-based organizations, clinics, and worker advocacy groups that work with, or provide services to, immigrants. This will allow them to provide training and educational materials for immigrant workers and also serve as an extension of governmental workplace health and safety agencies by reporting possible labor law violations and injury/illness cases.

The main reason is trust:

When asked where they went for assistance or advice on health and safety issues, most responded that they consulted with co-workers and immigrant worker advocacy groups or labor unions. They seldom turned to employers for such assistance. Workers in each of the industries turned to the worker centers or unions for information on how to work more safely, personal protective equipment, or legal assistance when injured. They trusted these organizations and felt comfortable going to them because their staff spoke the workers’ language and they felt secure that these organizations would not turn them into the Immigration and Naturalization Service (“la migra”) if they did not have legal immigration or working papers.

Funding these organizations that immigrant workers trust and who can effectively reach out is essentially what OSHA’s Susan Harwood Grant program was beginning to focus on. The clear lesson is that OSHA’s Susan Harwood training grant program should be significantly expanded in both funding and scope, not eliminated. And the program needs to provide much more funding to labor organizations, COSH groups and other community organizations. Unfortunately, OSHA’s grant program is increasingly ignoring these groups.

LOSH also recommended more research, public hearings, and the establishment of

a Clearinghouse/Resource Center for immigrant worker health and safety education and information.…that could provide education and information on workplace health and safety for these community based organizations, clinics and worker advocacy groups that work with immigrants.

While community based organizations clearly provide the most bang for the buck, federal and state OSHA’s need to hire more compliance officers and other staff who come from immigrant communities, or who at least speak their languages. Over the past several years, OSH has hired over 70 “Compliance Assistance Specialists” in each of its area offices. Unfortunately, most of these positions were filled with current OSHA employees rather than recruiting from immigrant communities. OSHA should also work with other federal and local agencies and community organizations to expand its Justice and Equality in the Workplace coalitions.

The toughest nut to crack is the problem of preventing or punishing retaliation against immigrant workers who attempt to use their OSHA rights. OSHA needs to find creative ways to work through labor unions, COSH groups, churches and other trusted organizations to send a strong message to employers that it is not acceptable to take advantage of immigrant workers or to retaliate against them when they complain about health and safety problems or when they report injuries or illnesses. Fines need to be raised for health and safety violations and criminal prosecutions more aggressively pursued.

The bottom line, of course, is the bottom line. If OSHA and Congress want to get serious about addressing the deadly health and safety problems faced by immigrant workers, it will take some innovative programs, and more money. Significantly more training grant money should be allocated and funding should be dedicated for federal and state OSHA programs to hire more employees from immigrant communities.

As the Indianapolis Star argued

State and federal agencies have tried to counter that assessment with Hispanic outreach services, literature and Web sites. Some employers have seized the moment on their own, providing Spanish training and otherwise making sure no worker is left at risk by language or culture differences. More assistance is needed, and budgets must be adjusted to make more of it face to face. To say the money isn't there is to ignore the wealth-producing sweat of this generation of America's builders.