April 29, 2006
Workers Memorial Day 2006
By Jordan Barab, Reprinted from Confined Space
Yesterday was Workers Memorial Day; a day dedicated by the labor movement to “pray for the dead and fight for the living,” in the words of fabled labor organizer Mother Jones. This year we’re hoping that while the praying goes forward as usual, the fight for the living may be making more headway.
The focus of this year’s commemoration is the Sago mine explosion in which 12 West Virginia coal miners died last January, as well as the subsequent Alma Aracoma fire that killed two miners. As traumatized as Americans were by the deaths of these men, the revelations of the Bush administration’s weak enforcement efforts, low fines and withdrawal of proposed regulations that could have saved the lives of the Sago and Alma miners have prompted citizens, labor advocates and politicians to take a serious look at this nation’s waning commitment to ensuring safe workplaces.
Mineworkers President Cecil Roberts, speaking at the AFL-CIO Wednesday evening, reminded us that only one Sago miner was killed in the initial explosion; the other 11 died from lack of oxygen. If they had had enough extra air or a means to communicate, the 11 miners would still be alive today. If the Bush administration hadn’t withdrawn a proposal to make coal belts fireproof, the two Aracoma miners would be alive today. This country created the Mine Safety and Health Administration, Roberts continued, because mine owners were not ensuring the safety of miners. Now, however, the Bush administration has handed MSHA back to the mine owners. And they’re not doing a very good job. Twenty-six coal miners have been killed so far this year, compared with 22 for all of 2005.
But Sago was not an isolated event. Few Americans realize that if the 12 miners who died at Sago were the only American workers to die on the job that day, it would have been a good day in the American workplace. Every day in this country, more than 15 workers are crushed in trench collapses, shot in convenience stores, mangled in machinery, killed in vehicle accidents, or fall to their deaths from scaffolds and cell towers. And the problem is getting worse. The number of workplace fatalities has risen in each of the past two years and the national workplace fatality rate rose in 2004 for the first time since 1994. The rate also rose for manufacturing, construction and Hispanic workers.
But the workplace dead are largely invisible souls. You can find the names, birthdates and hometowns of every American killed in Afghanistan or Iraq with only a few moments of web searching, but no amount of searching will identify more than a fraction of the almost 6,000 Americans killed in the workplace every year. Most die one at a time, noted only by their families, friends, co-workers, and possibly, a small article in the local paper.
Despite the rising workplace death rate, the Bush administration boasts about the falling number and rate of injuries and illnesses. “Only” 4.3 million injuries and illnesses were reported in the private sector in 2004, compared with 4.4 million in 2003. But in fact, no one really knows how many workers are injured or made ill in American workplaces. A recent study published by Michigan State University researchers confirms previous research showing that the federal government may miss up to two thirds of all workplace injuries and illnesses. Does anyone find it curious that the number and rate of workplace deaths is rising while the number of injuries and illnesses is allegedly falling? Could it have something to do with the fact that dead bodies are harder to hide than back injuries, cuts and burns?
Most of these deaths, injuries and illnesses could, of course, have been prevented if employers had simply complied with workplace safety standards issued by MSHA or OSHA. But the message has gone out from the Bush administration that employers don’t have to worry about OSHA or MSHA anymore. The overt hostility and unceasing attacks from the business community and Republican politicians has turned OSHA into a shadow of the tough enforcement agency originally envisioned by Congress. One of the first actions of the newly elected President George W. Bush and the Republican-controlled Congress was the repeal of OSHA’s ergonomics standard in March 2001. That standard, which would have addressed the largest health and safety problem facing American workers, had been ten years in the making. Today, one-third of workplace injuries and illnesses still come from ergonomic problems, and despite the administration’s promises to take ergonomics seriously, the agency has issued only three guidelines and 17 General Duty Citations over the past five years.
In fact, OSHA has issued only one other major standard since Bush took office – covering the cancer-causing chemical hexavalent chromium -- and that was done under court order. The standard was issued with permissible exposure limit (PEL) five times what was originally proposed by the agency; a level exposure which by OSHA’s own admission will leave workers at a significant risk of developing cancer. Only one week before, a study reported that the chromium industry had covered up evidence that the chemical caused cancer at extremely low levels. Meanwhile, standards to protect workers from silica, beryllium, noise and confined spaces in construction, and a requirement that employers pay for employees’ personal protective equipment make little progress at the agency. “New” issues like pandemic flu and other communicable diseases, stress, workplace violence and thousands of unregulated, uncontrolled chemicals are not even on the drawing table.
And OSHA isn’t even doing a very good job enforcing the standards it has on the books. American employers who are well aware that they are far less likely to be inspected by OSHA at work than they are to be pulled over for speeding on the way home from work. The AFL-CIO has found that it would take 117 years for OSHA to visit every worksite in those states covered by federal OSHA. Even if a workplace is inspected and violations are found, the fines levied by OSHA or MSHA are often absurdly small. Although the maximum penalty for a willful violation of an occupational safety and health standard is $70,000, most penalties are far smaller – even when a worker is killed. An exhaustive review of OSHA enforcement actions by Mike Casey of the Kansas City Star last year found that in 80 fatal and injury accidents, half of the fines Kansas City area employers paid were $3,000 or less. Even where fines are large, they are rarely high enough to present an effective deterrent. BP North America was fined $21.3 million for the 2005 Texas City refinery explosion that killed 15 workers and injured 170, but even that record penalty comes to only a few hours of profit for the giant corporation.
But Republican administrations and business hostility toward tough enforcement are only part of the problem. Most experts think that even with the most pro-worker administration, available resources and current penalties are not sufficient to force employers to take workplace safety more seriously. The Republican solution to this problem is to be less confrontational and leverage OSHA’s limited resources by promoting more partnerships, technical assistance, alliances and other voluntary programs under the theory that if you provide employers with relevant health and safety information, they will naturally do the right thing. Instead of an ergonomics standard, OSHA has formed 70 voluntary Alliances with industry associations ranging from he National Chicken Council and National Turkey Federation to the International Society of Canine Cosmetologists. Yet ergonomics remains the biggest problem facing American workers.
OSHA persists in expanding these voluntary programs despite a 2004 Government Accounting Office report that revealed that there is no evidence that these programs are effective in improving the safety of American workplaces. Further, the GAO warned, the growth of these expensive programs threatens to reduce the share of OSHA’s static budget pie dedicated to enforcing the law.
The continuing carnage in our nation’s workplaces proves the bankruptcy of the Republican voluntary approach. Labor unions and workplace safety advocates may have a better idea. Backed by studies that show that holding corporate heads personally liable for workplace crimes can be much more effective than monetary fines, they are arguing for more aggressive criminal prosecutions of employers who knowingly put workers in deadly environments.
Although rarely used, OSHA has the ability to criminally prosecute employers when a willful violation of a standard leads to the death of a worker. (“Willful” means violations in which the employer knew that workers’ lives were being put at risk.)
OSHA was embarrassed in 2003 by a New York Times investigation that revealed that from 1982 to 2002, OSHA declined to seek criminal prosecution in 93 percent of more than 1200 cases where a worker was killed due to a willful violation of an OSHA standard. At least 70 employers willfully violated safety laws again, resulting in scores of additional deaths. Even these repeat violators were rarely prosecuted. Fewer than 20 employers have ever gone to jail despite well over a thousand cases involving work deaths that involve “willful” OSHA violations over the past twenty years.
The problem is that a conviction under the Occupational Safety and Health Act is only a misdemeanor with a maximum penalty of six months in jail. By comparison, the penalty for harassing a burro on federal land is one year in jail. In fact, a chemical release that kills fish and crabs draws a much larger penalty from the Environmental Protection Agency than killing workers. Although the agency has signaled renewed interest in pursuing criminal convictions following the New York Times series, the small penalties make federal prosecutors reluctant to dedicate the energy and resources to prosecuting cases unless the workplace death can be linked to the violation of an environmental law that carries higher penalties. Edwin Foulke, the new head of OSHA, has indicated that the administration has no interest in strengthening the laws criminal penalties, even for the worst violators.
But there is a small glimmer of hope that change may be on the way -- if not in Congress or at OSHA, then at the local level.
Last November, New York prosecutors charged a Staten Island construction company owner, Ken Formica with second degree manslaughter for the 2003 death of his employee, Lorenzo Pavia who was crushed to death under tons of earth when a 15 foot deep unprotected trench collapsed on top of him. Pavia was then decapitated in the rescue attempt. Formica had received a trenching citation nine months before Pavia's death. OSHA fined the company $15,000 for Pavia’s death. But if convicted of manslaughter, Formica faces 15 years in jail.
In Arizona, the Far West Water and Sewer Company was found guilty last year on five felony charges filed against it by the state prosecutors office. The company was found guilty of violating a safety standard causing the death of an employee and two counts of endangerment in the deaths of James Gamble, 26, and Gary Lanser, 62, who were overcome by toxic sewage gases while working on an underground sewer tank. The conviction resulted in a $1.8 million fine. The OSHA citation was only $31,000. Far West president Brent Weidman will be tried for manslaughter, aggravated assault and endangerment at the end of April.
Some prosecutors, like New York State Attorney General Elliot Spitzer, aren’t even waiting for workers to die before jailing employers who put workers at risk. A Bronx jury recently found John Chiapperino and his company, Bronx Auto Venture, guilty of one count of Endangering Public Health, Safety or the Environment in the Second Degree, a felony, and two counts of Endangering Public Health, Safety or the Environment in the Fourth Degree, a misdemeanor, for sending one of its employees, Anselmo Alfaro to clean out pipes in a tank containing thousands of gallons of automotive petroleum waste products released during vehicle dismantling and crushing, without any protective equipment. Alfaro, who had objected to going into the tank, passed out and had to be rescued by the fire department. OSHA had fined the company $750, later reduced to $562.
What Is To Be Done
How can we make employers and the Bush administration take workplace safety and health more seriously. We could (and often do) go on all night coming up with ideas, but in the short term, there are two areas on which we can focus. First, let’s make every workplace fatality a “teachable moment.” Write a letter to the newspaper, or call the local T.V. station if they don’t report about how a workplace death could have been prevented.
Talk to local prosecutors about filing manslaughter charges. Talk to the press about talking to the prosecutors. If you’re not a family member, get in touch when the time is appropriate. Talk to them about how workplace deaths can be prevented, and how they can talk to the medial and local politicians.
Second, get the families who have experienced workplace tragedies involved. As a result of the "Weekly Toll" which lists workers who have died on the job in the previous two weeks, I hear from a lot of people who have lost loved ones to needless, preventable workplace tragedies. They're angry that the death of their son, daughter, husband, wife, mother or father could have been prevented. Their one wish is that somehow the death of their loved one will help to prevent similar tragedies from ever happening again. But, most of all, they're frustrated that nothing is being done, that the news media has glossed it all over with a short article implying that it was just a terrible freak accident, that OSHA has handed down an insignificant fine, that this tragedy that changed their lives forever had no impact, that it teaches no lessons. There's a lot of energy there to be harnessed and channeled into the political process. Let's not lose it.
Third, we’ve got an election coming up. Candidates will be crisscrossing their districts from now until November to talk to potential voters. Well, let’s make sure we talk to them. Workplace safety may never be a major issue in a national election, but it also doesn’t have to be a dead issue. If a politician hears once from an angry worker or family member who has lost a loved one, it’s a fluke. The second time, their ears may perk up. By the third or fourth time, they’re asking their staff for a report on who all these people are and what the hell do they want?!
And the same goes for union members who don’t feel their unions are doing enough about workplace safety and health conditions. Stop muttering to yourself and start nagging and complaining to your elected officials. They'll start nagging and complaining to headquarters.
As flawed as many of our institutions are, we still live in a democracy. Squeaky wheels eventually get greased – if they squeak enough.
Go forth and squeak.
Posted by Jordan Barab at April 29, 2006 07:44 PM