Tuesday, Feb 21, 2006
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Posted on Sun, Dec. 11, 2005


OSHA: Discounted lives VIDEO

Workplace deaths can devastate families, but government fines often modest — if employers pay at all

The Kansas City Star

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.

When James’ mother learned of the amount, she wept. “That’s nothing for taking my son’s life,” said Donna Frailey of Warsaw, Mo.

Low fines for workplace deaths or injuries are common even when OSHA cites employers for a serious violation, The Kansas City Star found in an examination of the agency’s inspection database for the metropolitan area.

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.

However, OSHA’s regional administrator in Kansas City, Chuck Adkins, said that the agency was more interested in improving safety than in collecting money.

“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,” 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.

Adkins, whose jurisdiction includes Kansas and Missouri, acknowledged that OSHA fines cannot make up for a family’s loss.

“The penalty we propose is not intended to pay for that life,” he said, adding that it’s more important to remove workplace hazards and provide safety training to prevent accidents.

Adkins said OSHA sometimes reduces fines in exchange for companies making safety improvements. He noted that some fines also are reduced by OSHA’s lawyers in the Labor Department, who operate independently of the agency.

Low fines ‘appalling’

Certainly, OSHA has levied multimillion dollar penalties in high-profile accidents.

BP Products North America Inc. agreed to pay $21 million for a March 23 explosion that killed 15 workers and injured more than 170 others at its Texas City, Texas, facility. That fine, for numerous violations, was nearly double the next largest penalty, officials said.

OSHA officials said that since the agency’s inception in 1971, on-the-job deaths have declined more than 60 percent. Nearly 1,000 fewer workers died last year than in 1994. Fatalities last year totaled 5,703, or 2 percent more than the previous year, but total workplace injuries and illnesses were down slightly over the same period.

Agency officials attribute encouraging trends to its enforcement efforts, training programs and cooperative ventures with business. For example, OSHA has a program with Kansas City Power & Light Co. to make tree trimmers aware of electrical hazards.

Yet OSHA’s role is just one factor in the overall drop in fatalities in recent years, experts said. They maintain that deaths and injuries could be reduced even more with tougher enforcement.

Susan Baker, a professor of public health at Johns Hopkins University who has expertise in occupational safety, attributed some of the decline in deaths to fewer workers employed in dangerous industries, such as steel making and coal mining, and better emergency room treatment.

Baker is convinced, however, that higher OSHA fines would prompt many companies to correct serious safety hazards faster. Baker called The Star’s findings on low fines “appalling.”

“Until the fine for ignoring a hazard is bigger than the cost of fixing the hazard, a lot of employers won’t do anything,” she said.

Safety advocates also said OSHA needs to issue stiff fines because its inspectors check only a small percentage of businesses. Agency inspectors investigate workplace deaths and complaints, and focus on some high-hazard industries. But it would take inspectors many years to visit every workplace under their jurisdiction.

Given the agency’s relatively low profile, the threat of higher fines is not going to make businesses safer, a director with the U.S. Chamber of Commerce said.

“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.

In its database analysis, The Star reviewed more than 27,000 inspection records for thousands of area companies. From 1994 through early 2005, the newspaper found that OSHA issued at least one serious violation citation in 80 accidents that had killed or injured workers.

To be sure, the vast majority of businesses didn’t have a fatality, including some large employers such as the General Motors Fairfax assembly plant in Kansas City, Kan., or Hallmark Cards’ local production and distribution facilities.

Still, The Star found that more than 130 area workers have died on the job since 1994 and about half perished at construction sites. Roofing and utility construction were the deadliest industries.

Seventy-five workers were killed in accidents that resulted in serious OSHA violation citations for inadequate training, lack of equipment and deficient safety policies.

Among the victims was Guy Beller Jr., 44, an ex-Marine and father of two.

In August 1996, Beller, an employee of Allied Hydro-Blasters of KC Inc., was on a beam about 10 feet above the floor as he cleaned part of the GST Steel plant. Beller fell, became entangled in a rope and died of asphyxia.

Allied was cited for failing to provide fall protection such as a safety harness system, which the company said was more of a hazard, records show. Those often cost less than $300, safety experts said.

OSHA proposed a $1,500 fine. When it didn’t receive payment, OSHA turned the debt over to the Treasury Department, but it couldn’t locate Allied and the government gave up trying to collect in 1999, records show.

The Star, however, found Allied’s president in Florida after only one phone call.

Charles Boyd said the company was out of business. Boyd would not discuss the accident and said he was unaware of the fine.

When told Allied never paid the fine, Beller’s daughter was upset.

“They should be made to pay,” Misty St. Lawrence said.

Three fatalities

In the accident that killed Les James, OSHA cited Quality Window Cleaning Inc. for three serious violations, which carried maximum fines of $21,000.

But because of OSHA rules — particularly those regarding small companies — the agency proposed a fine of only $4,500. Then the company received a 40 percent reduction after settling the case for $2,700 with OSHA’s lawyers.

OSHA cited Quality Window for failing to provide James with a safety line or a guardrail and for not securing the window-washing rig to the roof. The company also was cited for failing to attach the window washers’ lifelines to a secure point on the hospital’s roof, separately from the rig.

At the time of the accident, Quality Window owner Brian Mannschreck told an OSHA inspector that he had not trained James, saying that was the responsibility of the other window washers, records show. The inspector found inadequacies in the company’s safety training.

Records also show that the accident wasn’t the first time that OSHA had found the company’s training deficient.

In 1996, a Quality Window worker died from a fall in Kansas City, and OSHA noted weaknesses then in the company’s safety and health training.

The agency issued four serious violation citations, but agency lawyers dropped two and reduced two others after Quality Window contested them and paid no fine. Mannschreck blamed employee error in the accident.

Two years after James’ death, another Quality Window worker died from a fall in Lenexa. Mannschreck again blamed employee error. OSHA found no violations in that accident.

But the company’s three deaths over a six-year period troubled OSHA’s regional director.

“Three,” Adkins said. “That’s terrible.”

Meanwhile, a union official said that new window washers such as James should never have been on a roof. “You don’t send a guy up there without experience,” said John Zarris of Local 1 of the Service Employees International Union in Chicago.

James’ widow has sued Mannschreck in Jackson County Circuit Court, alleging he put her husband to work without training. Mannschreck’s lawyers have denied the allegation. In its settlement agreement with OSHA, the company did not admit to any wrongdoing. Such provisions are common in OSHA settlements.

“It’s been our position all along that Mr. Mannschreck did nothing wrong,” said his attorney, Jeff Stigall.

In court records, Stigall had argued that Missouri’s workers’ compensation law shields him from the lawsuit and that James and one of the injured window washers were negligent.

‘Unclassified’ deaths

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.”

It certainly didn’t occur in a case involving Stephen Barber III, 26.

■ Barber worked at Kansas City Southern Railway’s facility in Kansas City. One evening in February 1999, Barber was walking along the track when a large industrial truck crushed him.

OSHA’s investigation led to a willful violation citation and a maximum fine of $70,000. The citation stated that union officials had repeatedly warned Kansas City Southern of the dangers.

Two years before the fatal accident, Kent Nelson, a United Transportation Union official, wrote Kansas City Southern: “I am very concerned that a tragic occurrence is (going to happen) without a doubt in the future.” Nelson suggested vehicles stop while yard crews were working.

Kansas City Southern, however, challenged the citation. In a settlement agreement, OSHA’s lawyers changed the willful violation citation to unclassified and lowered the fine by 40 percent to $42,000.

The action infuriated union leadership.

“This is truly a case of big business has its way,” Thomas Stoltz, a Brotherhood of Locomotive Engineers official, wrote in a protest letter to OSHA’s lawyer. Stoltz, a Vietnam War veteran, added: “In war, you expect to suffer casualties, but not in your workplace.”

Kansas City Southern told The Star it was “deeply saddened” by Barber’s death. Since the accident, the company prohibits vehicles from operating while train crews are working in certain areas of the rail facility. The company also requires crews to wear vests with reflectors and takes other precautions.

Barber’s mother, Mary Ann Barber, likened the negotiations between OSHA’s lawyers and the company to “plea bargaining.” His father, Steve Barber, said the pain of his son’s death has not faded.

“It’ll be seven years in February, and it doesn’t get any easier,” he said as he dabbed tears from his eyes.

■ OSHA also changed citations from willful to unclassified in an electrical explosion eight years ago that claimed the lives of three workers at Western Resources’ Lawrence Energy Center.

The company, now Westar Energy, contested the numerous violation citations. OSHA changed willful violations to unclassified and reduced the initial fine by 56 percent to $200,000. The utility promised to make safety improvements.

Westar officials said the utility had taken corrective actions and made further safety advancements.

■ OSHA’s lawyers also changed willful citations to unclassified after a flash fire killed a worker at Hodgdon Powder Co. in Shawnee in 1994. OSHA proposed a $108,850 fine, but its lawyers settled the case for $30,650 — a 72 percent reduction.

Records show Hodgdon Powder corrected the hazards. A company official declined to be interviewed.

Worker safety advocates criticized OSHA for its use of unclassified citations.

“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.”

Even after many years, workplace deaths still haunt families who lost loved ones.

On a recent fall day, the leaves at Mound Grove Cemetery in Independence were fading to yellow as Donna and Harold Frailey stood over the grave of their son, Les James.

There were warm memories about a young man who loved his three daughters, fishing and motorcycles. But there also was a deep sense of loss. And lingering anger over OSHA’s fine.

“Just peanuts,” Harold Frailey said, bitterly.

Samuel Mera

Died when trench collapsed

OSHA fine: $5,525

Guy Beller Jr.

Died after falling, entangling in a rope

OSHA fine: $1,500,

but it was not paid

Les James

Died in window- washing accident

OSHA fine: $2,700

See Les James’ parents talk about their son and his death.

To reach Mike Casey, call (816) 234-4305 or send e-mail to mcasey@kcstar.com.