United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 2 of 17)
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Frank Kelley. .„^„„. ,. . . ^

Officials of the Michigan Department of Labor and its MIOSHA division have said
privately that it Is entirely likely that the ALJ will eventually dismiss or greatly
diminish all fmes, abatements and other administrative actions against American
Bumper. They tell the Eilar family that American Bumper's phalanx of lawyers
bombards MfOSHA with reams of paperwork on the least minutiae contained in
MIOSHA citations and reports. And they say that their staff has undergone cuts
that make it difficult or impossible to intelligently respond to all of American Bump-
er's requests for information and demands for responses to their interrogatories.

One official of the Michigan Department of Labor said, "If this (the incident that
took my brother's life) had happened in Macomb County, the plant owner would
have been led away in handcuffs." But it didn't happen in that populous, progressive
county; it happened in Ionia County, a bastion of retropolitics, conservative farmers,
a captive media and business-friendly officials. The Ionia County Prosecuting Attor-
ney refused to even investigate the fatal incident. He has since been appointed by
Michigan Governor John Engler to head the Michigan Parole Board.

Perhaps the hardest pill to swallow has been the utter failure of the Michigan
Attorney General to bring criminal prosecution against the rapacious American
Bumper and Manufacturing Company. Our family has had numerous contacts with
the Michigan AG's ofTice and we have provided anecdotal information not available
in the official records. We arranged a meeting between an Assistant AG and several
employees oil American Bumper who were eager to relate previously undisclosed in-
formation on American Bumper's operations. And we beseeched the Michigan AG
to act within statutory deadlines so that this abominable company would be con-
strained to commit more mayhem upon its employees.

Allowing the benefit of doubt, it is probably safe to assume that the preponder-
ance of employers in the United States have a real concern for their employees' lives
and safety. It is probably also safe to assume that most firms will do their level best
to comply with federal and state safety laws. Nevertheless, there will be those
rogues who will seek to defy all authority and proceed recklessly to endanger their
workers' safety. These rogues are not moved by moral suasion or toothless laws that
try to hold them to humane behavior. Only when threatened with the loss of free-
dom to their top officers will these renegades grudgingly comply with restrictions
on their untrammeled freedom to behave as they please.

If OSHA reform is to ever translate into greater protections for working men and
women in America it must incorporate severe criminal sanctions against those per-
petrators who can not be moved by any other means; Nothing short of the real fear
of certain incarceration will motivate these unscrupulous operators to temper their
policies and begin acting in accordance with accepted and safe standards.



Provision should also be made for state authorities who, for whatever reason, fail
in their duty to prosecute malefactors. The message must be clear and unequivocal:
We will no longer accept this disgrace to human decency. All employers must be
held to the highest standards of accountability for maintaining sale work environ-
ments, and workers must be assured fair redress to their legitimate complaints of
employer non-compliance with the law.

In the name of humanity, £md for the safety and well being of workers in every
state of this great country, I urge you to adopt OSHA I reform and send this mes-
sage to America's woriters: We care for you.



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Senator Metzenbaum. Lisa, you are entitled to answers, and this
Senator is sick and tired of 12 years of getting no action in this
area, and this Senator is upset about the fact that the Department
of Labor of the CHnton administration is not here supporting this
legislation today. They need to get off their butts and come here
and support this legislation. I demand it of them, and I am not sat-
isfied with their position, and if my words are unclear, I will say
them three times over.

Let us hear from you now, Mr. Rodriguez.

Mr. Gould. Grood afternoon, Senator Metzenbaum. It is a pleas-
ure to appear before this committee representing Vidal Rodriguez.

Unfortunately, my client, Vidal Rodriguez, is not able to present
this testimony nimself, due to the severe brain damage and injuries
he suffered at the Pymm Thermometer plant in Brooklyn as a re-
sult of the criminal acts of his employer, the brothers Pymm and
Pymm Thermometer Corporation. He sits here next to me, and I
am going to present, with your permission, the statement which I
prepared for nim.

"I stand before you as living proof of the immense need for en-
hanced legislation to protect the workers of this country from seri-
ous injury as a result of the greed of their employers. The present
OSHA laws were inadequate to protect me from having my entire
life destroyed by my former employer, Pymm Thermometer Com-
pany."

"My employer, the brothers Pymm, were found guilty by a jury
of their peers in the New York State U.S. Supreme Court of expos-
ing me to dangerous levels of Mercury in their Brooklyn factory in
order to save themselves a few dollars."

It is important to note that that prosecution of the brothers
Pymm in State supreme court resulted in, first, the judge overturn-
ing the verdict of the jury on the basis that Federal law preempted
a State prosecution, Aft^r that was overturned by the appellate di-
vision and the court of appeals of the State of ^few York, the case
was sent back for trial. Further appeal was taken on the basis of
an improper entry on the jury verdict sheet that the judge gave the
jury, and the jury verdict and all the work of the State attorney
general and the Brooklyn DA's office was rendered to nothing, and
it was set aside and sent back for trial.

At the present time, I have heard from the district attorney that
they intend to enter into a plea bargain arrangement with the
brothers Pymm and that they might get community service.

'"The brothers Pymm and Pymm Thermometer had been warned
by OSHA inspectors that the exposure levels of their workers were
five times greater than normal and that such exposure could result
in serious neurological damage or death to their employees. With-
out any warning, I was required to work in an unventilated base-
ment, crushing broken thermometers to extract mercury. I was ex-
tracting mercury to add a few sheckles of silver to the earnings of
the brothers Pymm. As a result, I sustained serious neurological in-
juries including brain damage. Many other workers were also
caused serious neurological injuries."

"To date, the brothers Pymm have been able to squirm out of the
weak State laws under which they were prosecuted and have gone
essentially unpunished. I and my family, who have had so much



11

horror visited upon them by the criminal acts of the Pymms, have
even been denied civil compensation."

"You must protect the citizens of this country" — and I think the
President ought to hear those words, and I agree with the honor-
able Senator, chairman of this subcommittee, that it is absolutely
necessary that this administration understand that the workers of
this country will not put up without having legislation such as Sen-
ator Metzenbaum and Senator Kennedy have proposed.

'Tou must protect the citizens of this country by providing mean-
ingful penalties for employers' willful violations where serious in-
jury resulting in permanent disability occurs."

You see 265,600 deaths. How many seriously disabled are there
besides that? I would say probably easily another 50,000 to
100,000, of which Vidal Rodriguez is a prime example, sitting on
my right.

"Once you have strengthened enforcement authority, I would
urge that you also consider ensuring that workers who are perma-
nently devastated by the actions of their employer are able to be
compensated despite State workmen's compensation exclusivity
statutes."

We need Federal legislation preempting State exclusivity under
workmen's compensation for the very workers that you seek to pro-
tect now, so that they can have enough money to live after their
employers go to jail.

"I was destroyed as a human being, and the destroyers are able
to hide behind present laws, free of criminal penalty or just com-
pensation to me."

"The sad tale of the premature destruction of my life began in
1981, when I went to work for Pymm Thermometer Corporation as
a handyman. Mr. F^mm hired me personally, and I remained a
faithful employee, doing whatever I was told for 3-1/2 years, until
approximately July of 1984. If it were not for another minor injury,
I might have died before I learned I was a victim of mercury poi-
soning."

"I swept, fixed the lights, fixed the roof, anything that would
need fixing or replacing was my job. About 120 other people worked
with me in the thermometer factory. I did not know that mercury
was in any way dangerous. However, I did notice that my hands
got black when I tried to clean it up from the floors, and I re-
quested protective clothing. The only answer was — and I quote Mr.
Pymm — ^Whatever you want to wear, you have to buy out of your
own money.' No one in the plant had any protective clothing — no
gloves, no masks, no shower."

"The machines involved in the manufacture of the thermometers
were far fi-om perfect, and they dropped thermometers on the floor.
I was ordered to clean the floor up. It was never possible to clean
it completely. I specifically asked the boss,' Does the mercury make
damage to the people inside? Or something like that. Mr. Pymm
told me,' No.'"

"In April 1983, the brothers Pymm and Pymm Thermometer
built a poorly-constructed mercury reclamation system in the cellar
area of Pymm Thermometer Corporation."

Senator Metzenbaum. Mr. Grould, could you wind up?

Mr. Gould. Certainly, Senator.



12

'The existence of the cellar operation was concealed from OSHA
inspectors. As a result, OSHA reports on Pymm Thermometer Cor-
poration contained no information on the cellar area and contained
no analysis as to how safe the conditions in the cellar area were.
Finally, when people started getting sick, they were examined, and
the doctors found that approximately 90 of them became sick be-
cause of exposure to mercury in the factory. I started to get sick
6 months after I started working in the factory, but I did not know
why. My body itched all over. ^W mouth was dry. My eyes became
bloodshot. I nad pain in my back and pain in my head, and some-
times I got fever at night. My legs hurt, and I thought it was ar-
thritis."

"I finally left the job because I fractured my elbow. My doctor fi-
nally sent me to the board of health. They ran tests and had me
hospitalized immediately. I was poisoned already, but I did not
know I was poisoned. I developed asthma, and I felt like I was los-
ing my mind. I became abusive and even violent toward my family,
and I needed extensive psychiatric care."

That is known as the "Mad Hatter syndrome." We all remember
the Mad Hatter in Alice in Wonderland. How did the Mad Hatter
become mad? Hats were made by constructing the fibers with mer-
cury. That is why we have known this for vears. This employer
knew it for years. This employer devastated the life of this em-
ployee. He is unable to be compensated. He is unable to see his foul
employer, who knowingly did this to his life, properly punished, be-
cause there are no teeth to the tiger. Please, give the tiger teeth.

Thank you.

[The prepared statement of Mr. Rodriguez follows:]

Prepared Statement of Vidal Rodriguez

I stand before you as living proof of the immense need for enhanced legislation
to protect the workers of this country from serious injury as a result of the greed
of their employers. The present OSHA laws were inadequate to protect me from
having my entire life destroyed by my former employer, F^nmi Thermometer Com-
pany.

My employer, the brothers Pymm, were found guilty by a jury of their peers in
the New York State Supreme Court of exposing me to dangerous levels of mercury
in their Brooklyn factory in order to save tnemselves a few dollars.

The brothers Pymm and Pymm thermometer had been warned by OSHA inspec-
tors that the exposure levels of their workers were five times greater than normal
and that such exposure could result in serious neurological damage or death.

Without any warning I was required to woric in an unventilated basement, crush-
ing broken thermometers to extract mercury. As a result I sustained serious neuro-
logical injuries including brain damage. Many other workers also were caused seri-
ous neurological injuries.

To date, the brothers Pymm have been able to squirm out of the weak state laws
under which they were prosecuted and have gone essentially unpunished. I and my
family who have had so much horror visited upon them by the criminal acts of the
P*ynun8 have even been denied civil compensation.

You must protect the citizens of this country by providing meaningful penalties
for employers willful violations where serious injury resulting in permanent disabil-
ity occurs. Once you have strengthened enforcement authority, I would urge that
you also consider ensuring that woricers who are permanently devastated by the ac-
tions of their employer are able to be compensated despite state workmen's com-
pensation exclusivity statutes.

I was destroyed as a human being and the destroyers are able to hide behind
present laws, free of criminal penalty or just compensation to me.

The sad tale of the premature destruction of my life began in 1981 when I went
to work for Pymm Thermometer Corp. as a handyman. Mr. Pymm hired me person-
ally and I remained a faithful employee doing whatever I was told for three and



13

a half years, until approximately July of 1984. If it were not for another minor in-
jury I might have died before I learned I y/as a victim of mercury poisoning.

I swept, fixed the lights, fixed the roof, anything that would need fixing or replac-
ing was my job. About About 120 other people worked with me in the thermometer
factory. I started out at $3.35 an hour and was given a $1 an hour raise each year.
At the end I was earning about $194 a week after taxes.

I didn't know that mercury was in any way dangerous. However, I did notice that
my hands got black and I requested protective clothing. The only answer was,
"whatever you want to wear, you have to buy." No one in the plant had any protec-
tive clothing. No gloves, no masks, no shower.

The machines involved in the manufacture of the thermometers were far from
perfect and they dropped thermometers on the floor. I was ordered to clean the fioor
up. It was never possible to clean it completely. I specifically asked the boss "Does
the mercury make damage to the people inside for something like that?" Mr. Pymm
told me "No".

In April 1983 the brothers Pymm and Pymm Thermometer built a poorly con-
structed mercury reclamation system in the cellar area of Pymm Thermometer Cor-
poration. This mercury reclamation system produced hazardous health conditions
within the cellar area. I was made the principal employee who operated the rec-
lamation equipment. As a result, I sufiiered serious physical injury and the health
of other workers was endangered.

The brothers Pymm and Pymm Thermometers profited by committing these felo-
nies. The necessary modifications to the system which would have allowed for rec-
lamation of mercury without any threat to the health of workers would have cost
between $56,500 and $87,000. By eliminating the cost of installing these modifica-
tions, the brothers Pymm saved this money. By not disposing of broken thermom-
eters, the brothers Pymm and Pymm Thermometer saved an additional amount be-
tween $90,000 and $145,000. By reclaiming the mercury and using it in new ther-
mometers, Pymm further avoided buying new mercury and thus saved $21,951. Ac-
cordingly, by their illegal conduct, the brothers F*ymm and Pymm Thermometer
saved a total of at least $167,951.

As a result of installing this unsafe system, which endangered the workers, and
concealing the system from OSHA, the brothers Pymm and Pymm Thermometer
committed the felonies of Assault in the first degree (New York State Penal Law,
Section 120.10 (6)), Assault in the Second Degree (New York State Penal Law, Sec-
tion 120.05 (2)) and Falsifying Business Records in the First Degree (New York
State Penal Law, Section 175.10) and related misdemeanors.

The existence of the cellar operation was concealed from OSHA inspectors. As a
result, OSHA reports on Pymm Thermometer corporation contained no information
on the cellar area and contained no analysis as to how safe the conditions in the
cellar area were.

Finally when people were getting sick they were examined and the doctors found
that approximately 90 of them became sick because of exposure to mercury. I start-
ed to get sick 6 months after I started working in the factory, but I didn't know
why. My body itched aU over. My mouth was dry. My eyes became bloodshot. I had

fain in my back and my head and sometimes I got fever at night. My legs hurt and
thought it was arthritis.

I finally left my job because I fractured my elbow. My doctor sent me to the Board
of Health. They ran tests and they had me hospitalized immediately at Bellevue
Hospital. Soon I couldn't walk and I was given a cane. Actually, I started using a
cane on my own in 1983 because my legs hurt so much. I was poisoned already but
I didn't know I was poisoned. I developed asthma and I felt like I was losing my
mind. I became abusive and even violent toward my family and I needed extensive
psychiatric care.

Before my employer ruined my life I enjoyed social activities with mv wife, I en-
joyed sports, I played baseball. I got along well with my children and my family.
Because of the poisoning, I lost my children. I could not have marital relations with
my wife and I almost lost her.

Present OSHA laws are inadequate. OSHA is a toothless tiger. Robert Abrams,
the Attorney General of the State of New York chastised OSHA for failing to force
a cleanup of the Pymm plant. Mr. Abrams stated that OSHA had been "severely
derelict" and had failed to protect the health and safety of workers at Pymm. Mr.
Abrams expressed surprised that OSHA had permitted "extremely dangerous condi-
tions to remain unabated for almost 4 years."

Only by enacting the proposed legislation can OSHA be expected to prevent trsige-
dies such as my own from occurring.



14

Senator Metzenbaum. Thank you very much, Mr. Gould, and
thank you very much to your cHent, Mr. Rodriguez, for being with
us. I am indeed sorry to learn the facts of this case, very sorry,

Mr. Michael Delaney, head deputy district attorney, environ-
mental crimes/OSHA division, district attorney. County of Los An-
geles.

I am a little unclear. You are a State employee and not a Federal
employee?

Mr. Delaney. County of Los Angeles.

Senator Metzenbaum. County, OK Thank you very much.

Mr. Delaney. Mr. Chairman, Senator Wellstone, it is a pleasure
to be here. As you indicated in the introduction, I am a State pros-
ecutor for the County of Los Angeles, and my perspective obviously
is that of a career prosecutor. And like you. Senator Metzenbaum,
I believe in deterrence through the prospect of criminal prosecution
where it is warranted.

I know there has been a critique that the OSHA statute is reme-
dial, is regulatory in nature, and so it is. And for most businesses —
and I know you have a background yourself in private business —
for most businesses, compliance counseling is and should be the
norm; but I think it is also a truism of human nature that there
are always going to be those businesses that are prepared, out of
greed or out of laziness, to cut comers and jeopardize their work-
ers. And that is when the role of prosecutors is, to my mind, a criti-
cal one.

I think the scope of the problem is amply illustrated by your
chart. That one employer who received a jail sentence, as I recall,
received 45 days in jail several years ago. That is the high water
mark for criminal prosecution under the OSHA Act at the Federal
level. It seems to me that even if you net out the chronic injuries
and deaths, if you take out the vehicular accidents and other trau-
matic injuries, just yesterday reported in the Wall Street Journal,
you had Department of Labor statistics that some 40 percent of the
traumatic worker deaths were attributable to injuries occasioned
by equipment, by crushing injuries, by electrocutions, by falls, ex-
plosions, fires, and so on. And given the scope of that problem, it
seems to me that it is critical that you have a component that is
going to involve criminal prosecution. And it is because, at least in
part, of the void that we felt existed at the Federal level that, some
8 years ago, the Los Angeles district attorney formed the OSHA en-
forcement unit. We have had eight defendants convicted of man-
slaughter, receiving jail sentences in all of those cases but one, and
that is in one county, albeit a populous county, in this country.

Our program has, I think, been a bit of a model for others
around the country, and I know there have been other prosecutions
that have acquired fame, or perhaps "notoriety" is the word, includ-
ing Film Recovery Systems, which I want to come back to in a mo-
ment. But I am here to say. Senator Metzenbaum, that the Los An-
geles district attorney's office is here to support S. 575. We support
the felony provisions. It seems to me it is long past time when we
should have felony provisions for willful actions that occasion work-
er deaths and serious injuries.



15

It seems to me a 6-month misdemeanor trivializes the traumatic
injuries and the kinds of horrible accounts that this committee and
others have heard, such as those you heard from Ms. Eilar.

I also would suggest that the serious bodily injury" language in
the bill is salutary. The mere fortuity of death not occurring should
not be critical. If you have a willful violation, if someone is dis-
abled, if someone suffers as grave injury, there ought to be a felony
provision in the arsenal.

Finally, I would like to address the manager and supervisor li-
ability, which attempts to legislatively overrule the Doig case from
the 7th Circuit. As you may know, in Los Angeles, in California
generally, we have the ability to go after managers and super-
visors, and we use that ability. It seems to me that that is a critical
provision that must be in the law. Doig creates, I can tell you from
a prosecutor's perspective, a genuine dilemma in the sense that
Doig limits you to officers and directors of a corporation, when in
many cases your best evidence, the most critical evidence inculpat-
ing individuals in a firm, is going to be against the lower-level offi-
cials, those who are on the scene, those who have in many cases
heard repeated worker complaints and ignored them, those who
have knowledge of the facts but, for whatever reasons, have chosen
to ignore the dangers inherent in those facts. And under United
States versus Park and under Dotterweich, the critical cases for
employer liability being visited on corporate executives when a cor-
poration commits crimes, there is a defense available to those cor-
porate executives if they can claim that they were not in a position
to affect the action, they could not have known, they could not have
done anything. And it seems to me that by way of the language
that you have proposed in S. 575, you are going to be able to reach
managers and supervisors, foremen, who really have in many cases
more culpability than do the corporate officers.

Let me just give you two vivid examples. Film Recovery Systems,
the notorious case from Cook County, Illinois, which resulted in
murder convictions and 25-year prison sentences in 1985, is famil-
iar I suspect to everyone in the room. Most people also know that
that case was reversed on narrow technical grounds because there
were inconsistent jury verdicts. But what is not generally known
is that in the last month, in September of 1993, because of aggres-
sive action by the Cook County State's Attorney's office, that case
was again set for trial, and manslaughter pleas were taken not
simply from Mr. O'Neal, who was the president of the corporation


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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 2 of 17)