OSHA Betrays Dead Man’s Family
December 21st, 2003 by Hal
After OSHA concluded that Linda Moeves', owner of Moeves Plumbing, willful inherent disregard of safe work practices led to the death of 22 year-old Patrick E. Walters when he was buried alive in the cave-in of a trench, OSHA then negotiated away the willful designation, reduced the fine, and set-back safe work practices in the process. The New York Times thankfully has taken up the cause. In the first of three articles in the series When Workers Die, David Barstow reveals the collusion and ineptitude of the federal agency chartered to protect workers from unscrupulous and irresponsible actions of employers. You must read this article and return each day for the following two articles.
The article describes the inspectors' actions to bring about training and safe practices at Moeves Plumbing. I don't understand what training is necessary. The information is readily available and understandable to all in OSHA's Construction Industry Digest. Here's the relevant text from pages 26 and 27:
Each employee in an excavation shall be protected from cave-ins by an adequate protective system except when:
- Excavations are made entirely in stable rock, or excavations are less than 5 feet (1.5 meters) in depth and examination of the ground by a competent person provides no indication of a potential cave-in. 1926.652(a)(1)(i) through (ii)
- Protective systems shall have the capacity to resist, without failure, all loads that are intended or could reasonably be expected to be applied or transmitted to the system. 1926.652(a)(2)
Employees shall be protected from excavated or other materials or equipment that could pose a
hazard by falling or rolling into excavations. Protection shall be provided by placing and
keeping such materials or equipment at least 2 feet (0.6 meters) from the edge of excavations,
or by the use of retaining devices that are sufficient to prevent materials or equipment from
falling or rolling into excavations, or by a combination of both if necessary. 1926.651(j)(2)Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions. An inspection shall be conducted by the competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazard increasing occurrence. These inspections are only required when employee exposure can be reasonably anticipated. 1926.651(k)(1)
Where a competent person finds evidence of a situation that could result in a possible cave-in, indications of failure of protective systems, hazardous atmospheres, or other hazardous
conditions, exposed employees shall be removed from the hazardous area until the necessary
precautions have been taken to ensure their safety. 1926.651(k)(2)A stairway, ladder, ramp, or other safe means of egress shall be located in trench excavations that are 4 feet (1.2 meters) or more in depth so as to require no more than 25 feet (7.6 meters) of lateral travel for employees. 1926.651(c)(2)
Patrick E. Walters did not have to die. Nor do over 1,200 other people who die in construction-related incidents each year. Swift prosecution is the only thing that will have company managers take their responsibilities seriously. OSHA knows that and doesn't do it.
In a page from OSHA's website OSHA Saves Lives they describe an incident just like Patrick Walters. They make no mention of levying fines.
"Get out of that trench," OSHA Inspector Robert Dickinson ordered a worker in an unshored, unsloped, unsafe trench by the side of the road near El Paso, Texas. Good thing El Paso Assistant Area Director Mario Solano had spotted the trench earlier on September 13, 2001 and sent Dickinson and Elias Casillas to check it out. Because 30 seconds after the employee left the trench, the wall near where he had been standing collapsed. Heeding the compliance officer's warning and order to leave the trench kept the worker from experiencing a serious, perhaps life-threatening injury.
It read's like OSHA believes it's own PR. OSHA inspectors are not there to prevent an injury. They are there to see that systems and practices are in place for preventing all injuries. Nothing has changed just look at the numbers: 2002 (1,121), 2001 (1,225), 2000 (1,155), 1999 (1,191), 1995-1999 Avg (1,115) (collected from US BLS 2000, US BLS 2001, US BLS 2002).
Please join David Barstow and the New York Times bring about a reform at OSHA. Link to the article. Link to this posting. Write Russell B. Swanson, OSHA's Director of Construction, at bswanson@dol.gov, John L. Henshaw, Assistant Secretary of Labor OSHA, at this form, or Elaine Chao, Secretary of Labor at this form. And write members of congress.
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December 23rd, 2003 at 12:51 am
Hal,
Do you really believe that prosecution is the best way for managers to take their responsibility seriously ? The industry is its own worst enemy and workers keep engaging in dangerous practices though ignorance. Workers need to educated to the risks associated with their daily work and they need to be encouraged to do so. Get the OSHA to take a proactive role rather than an enforcer. Do you preach carrot or stick ?
BTW love the site, keep up the good work !
December 23rd, 2003 at 2:21 pm
I believe that it is not the workers who principally are responsible for the injuries on the worksite. The system is broken or obsolete. There is a way of working that will bring about safety records that approach an injury-free workplace.
Regarding prosecution, it’s not a carrot or stick situation. Willful disregard of safe work practices is already punishable by law. I am complaining about OSHA. It needs to do the job it is there to do. Take the offenders to court for each loss of life. Take away their businesses if they are found guilty.
The construction industry has to change. Help me.
May 17th, 2006 at 3:26 pm
Mario Solano was recently sentenced to two years in prison for using promised reductions in fines to steer employers to a training company that was giving him kickbacks. This sheds a different light on cases involving Mario Solano such as the one above. A little harder to feel confident that the reduction was made because it was the right thing to do.
Safety rules for excavations have been around for over two decades. Practically every excavation industry trade magazine has a half dozen references to OSHA in every issue. It’s unfathomable that any excavation company would need more information!
Why would an employer encourage his people to ignore the well-known safety rules? Because he thinks he can get away with it and save money, period. In almost every case, it’s not the owner of the excavation company that dies in the cave in, it’s some poor guy trying to make a living. The owner pays a little fine and it’s all over in a few months and back to business.
OSHA is the only entity out there trying to stop employers from doing these reckless things. If companies want to ask OSHA questions, they certainly can get all the help they want. But having worked in an OSHA office, I can assure you practically all the calls come from employees with safety concerns, not the boss.
May 17th, 2006 at 3:33 pm
I should also add that one of the compliance officers involved in this inspection, Elias Casillas, pleaded guilty to referring companies to Solano for the bribes and was given four years probation.