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 3 of 17)
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and who, incidentally, is going to be serving a 3-year prison sen-
tence, but also from a plant manager at the film recovery plant
who pled guilty to involuntary manslaughter and who received 2
years in State prison, and also to a plant foreman who received a
probationaiy term and home detention. That is one case that illus-
trates the met that you need to have the ability to go after man-
agers where appropriate.

We have another case currently pending, referred to on page 6
of my statement, in which we had a corporation indicted for man-
slaughter in Los Angeles County earlier this year, a case that is
now pending and has not yet come to a jury trial. The Corporation
is not even based in the United States. The corporate officers and
directors are in a different country, and for that reason, we named



16

the plcint manager in Los Angeles County, who we felt had been
inculpated by his knowledge and statements made to him — ^he had
a worker who died after inhaling hydrogen sulfide gas in confined
space; a worker who was given no respiratory equipment, no life-
line, no adequate measures for his safety £md who died as a result.

So it seems to me it is long past time for the Doig rationale to
be legislatively overruled, and I would support the language in this
bill that would do so. I would also echo the comments of Mr. Gould
relating to preemption. Preemption is an issue, despite Chicago
Magnet Wire, that still bedevils us on the State level; we still hear
those defenses, and several courts around the country have found
the preemption argument one that they thought was compelling. So
I would like to see in this bill a clear legislative statement that
there is no preemption of the State police power.

It is a pleasure to be here, Senator Metzenbaum, and we fully
support S. 575.

[The prepared statement of Mr. Delaney follows:]

Prepared Statement of Michael J. Delaney

Mr. Chairman and committee members, my name is Michael J. Delaney. I am the
Head Deputy District Attorney of the Environmental Crimes/OSHA Division, and
am appearing on behalf of Los Angeles County District Attorney Gil Garcetti. I
would like to take this opportunity to describe our program to reduce the number
of unsafe and unhealthy workplaces which needlessly take the lives or health of
workers In Los Angeles every year, and to recommend strengthening the criminal
penalty provisions of the Federal Occupational Safety and Health Act to better en-
able Fed/OSHA and the Department of Justice to utilize the deterrent of criminal
prosecutions in worker death and injury cases.

Each year in Los Angeles County there are approximately 100 occupational
deaths. While a portion of these are a result of long term exposures to substances
such as asbestos, the vast majority are traumatic deaths, resulting from explosions,
electrocutions, death by crushing or tearing, falls, and other unnecessary workplace
deaths.

These deaths are only the most serious portion of the problem. In Los Angeles
County, there are thousands of serious injuries each yean amputations, bindings,
hearing losses, disfiguring bums, and other disabling injuries. There are also thou-
sands of exposures to carcinogens and reproductive hazards, and to substances, such
as lead, that have either acute or chronic toxic efTects.

Los Angeles is obviously not alone in this experience. In every major urban area,
and in rural communities as well, workers toil in dangerous and unsafe conditions.
Multiple deaths grab the headlines while serious injuries often go unreported. The
General Accounting Office reported in 1990 that while there is little good data on
iiyuries and illnesses, it appears that the number of work days lost because of inju-
ries has significantly increased, i For every sweatshop, and callous employer who
cuts comers on safety to cut costs, there are hundreds of employers who fail to pro-
vide a safe workplace simply because safety is not a priority.

Historically, workplace deaths have been treated as accidents. Under California
law, however, many deaths are not accidents, but rather are crimes.

There is no single way to prevent occupational deaths and injuries. Employer and
employee awareness, and effective regulatory agency action are essential. However,
we Delieve that aggressive prosecution of appropriate cases is an important element
of an effective emorcement strategy. The Los Angeles District Attorney established
the first occupational safety and health section m a local prosecutor's office in the
country. An increasing number of prosecutors around the country have followed suit
end have assigned attorneys to develop and prosecute occupational safety and
health cases, often relying upon traditional criminal law as m Ulinois v. CNeil
(Film Recovery Systems), and People v. Pymm (Pymm Thermometer Corporation).

The linchpin of our prosecution effort is what is known as our "roll-out" program,
under which a deputy district attorney and an investigator are on call to respond
24 hours a day, 7 days a week to the scene of traumatic occupational fatalities or



lU.S. General Accounting Office, Occupational Safety and Health: Options for Improving Safe-
ty and Health in the Workplace, August 1990, GAO/HRD 90-66BR.



17

serious injuries in Los Angeles County. We are typically notified by law enforcement
or by the coroner's ofTice. When we arrive at the scene, our task is to assure that
the necessary physical and testimonial evidence is taken. Based upon our experi-
ence, we know that it is critical to obtain witness statements as quickly afler the
incident as possible. In these cases, there is more to lose thaji just a witness' mem-
ory. In most cases, key witnesses continue working for the employer who may have
been respK)nsible for a coworiiers death. As time passes, the locus of concern may
move from grief for the death of a co-worker to concern about their own job security,
or perhaps their inunigration status.

We have investigated hundreds of workplace deaths since establishing our pros-
ecution program. The victims are usually young and inexperienced. Manual labor
in Los Angeles is often done by young male Latinos, and language difficulties can
heighten the risks for such workers, particularly if safety training takes place only
in English, as it sometimes does.

We nave prosecuted over 50 cases, the vast mtyority of which involve individuals
as well as corporate defendants. Several other cases have been filed by local city
attorneys based upon investigations that we conducted. A number of defendants
have been charged with involuntary manslaughter, because the conduct that led to
the death of a worker constituted gross negligence under our Penal Code. The re-
maining cases are typically filed under Califcmia Labor Code Section 6423(a), which
makes it a misdemeanor to knowingly or negligently violate an OSHA regulation
when that violation is serious, or Caliiomia Labor Code Section 8425, which msJces
it a misdemeanor to willfully violate an OSHA regulation when that violation re-
sults in death, permanent or prolonged impairment. A new tool in California is the
Corporate Criminal Liability Act, which became effective in January of 1991. That
law requires managers and corporations to warn workers (or others who are ex-
posed) when they have knowledge of serious concealed dangers.

To give you a sense of the types of cases we view as appropriate for criminal pros-
ecution, I would like to describe the type of the deaths which have resulted in crimi-
nal prosecution in Los Angeles.

Our first involuntary manslaughter prosecution was against the president of a
small drilling company who sent a worker down a 33 foot hole that was only 16 to
18 inches in diameter. The worker was lowered into the hole, which was being
drilled for an elevator shaft with his foot in a sling. He had no safety harness, the
air was not tested, and the sides of the well were not encased. When the worker
went into seizures and the rescue personnel responded, they were told they could
not pump oxygen into the hole because the sides of the wall mi^t collapse. By the
time they were able to remove the victim, he was dead.

We prosecuted a contractor and a building owner when our investigation revealed
that tney had been repeatedly warned that bricks could not be removed from an
unreinforced building for purposes of installing a new entry way without proper
shoring. They proceeded without shoring, saving a few hundred dollars. When the
building collapsed, one worker was killed, and his brother was seriously injured.

Three of our prosecutions have involved grisly deaths because employers tailed to
deenergize equipment, to use lock ouL'^locK out procedures, or to use other means
to prevent inaavertent machinery movement during cleaning or maintenance. In
Golden State Foods, an employee was literally ground up in a meat blender when
he went in, as was part of their regular practice, to clean out meat stuck at the
bottom. In Star Scrap, the uncle of the victim started a scrap baler, not knowing
his nephew was cleaning the machine, thus cutting his nephew in half. In California
Poultry, the victim was crushed to death In a large poultry mixer, which should not
have been allowed to operate when open.

We charged Reliance Steel and Aluminum end several of its managers sJier a
young worker was assigned to operate a machine that normally requires 30 days
of training for new operators, was given a mere three hours of training, and then
left with a Spanish-speaking helper. The victim did not speak Spanish. A regular
part of the operation was inserting ceirdboard at the pinch point of steel rolling at
approximately 150 feet per minute onto the steel recoiler. Apparently the victim's
glove got caught when he was trying to insert the cardboard, and he was pulled in
and crushed to death. Aft^r executing a search warrant, we found that Reliance's
Insurance company had given numerous warnings related to reauirements for
guarding the device, and for training. In addition, another employee nad previously
been injured while inserting cardboard on a similar piece of equipment.

Earlier this year, we obtained a grand jury indictment in Los Angeles charging
manslaughter and felony violations of the California hazardous waste control law
in connection with a worker death due to inhalation of hydrogen sulfide gas. A pulp
and paper plant of)erator in Los Angeles County and the manager of the plant are
the aefendants in that case, which is currently pending in our Superior Court. We



18

have alleged that the worker did not receive adequate training and was not
equipped with a lifeline, respirator and other safety eauipment, although the com-
pany and Its management were on notice of the need for same when workers were
exposed to potentiadly fatal hydrogen sulfide. This case vividly illustrates the need
for the availability of felony criminal sanctions against corporate managers as well
as officers.

We have obtained jail time for six individual defendants in OSHA cases thus far.
In most cases, officers or other individual defendants in the corporation are placed
on probation, with conditions requiring the implementation of comprehensive mjury
and illness prevention plans, substantial fines imposed, and other probationary con-
ditions tailored to the circumstances. In a number of cases, we have required de-
fendants, as conditions of probation, to contribute funds for development of edu-
cational progrsmi to reduce the likelihood of violations by other employers. In a re-
cent prosecution for illegal lead exposures, we obtained in our case settlement the
funds necessary to employ an occupational epidemiologist, industrial hygienist, and
a public health educator, in order to worii on an 18 month occupational lead project
under the supervision of the County Health Department. The goal of the project was
to visit and inspect approximately 100 high risk lead users, and help achieve compli-
ance with our govemmg lead standard.

We believe tnese types of prosecutions have a substantial deterrent effect that
cannot be achieved through any other mechanism. Civil penalties can all too often
simply be passed on as part of the cost of doing business. For a corporate officer
to face even a few days of jail time is generally of greater consequence than long
prison sentences for most criminals. Our belief that the threat of jail time is an im-
portant deterrent Is confirmed by the statements of many safety and health profes-
sionals. Employers are noticing increased enforcement activity, and are in most
cases taking the recommendations of safety engineers and industrial hygienists seri-
ously. Also, the effectiveness of our program is illustrated by the pleas of defense
attorneys who often urge that their corporate clients pay civil penalties far in excess
of available criminal fines rather than race the stigma of criminal conviction.

The success that our office and numerous other prosecutors around the country
are having could be matched by the Federal Government. Thus far, however, that
potentifiJ has not been realized. While hundreds of cases have been prosecuted in
the State of California since the state OSHA Act was passed in 1973, it was recenthr
reported that only 13 cases have been prosecuted criminally nationwide by the Fed-
eral Government since 1971. More Importantly, jail time has been imposed only
once in a Federal case. Referrals from Fed-OSHA to the Justice Department are ex-
tremely rare. 2 «. o /-^

Why does this disparity exist between State and Federal enforcement efforts? One
reason is the lack of an effective criminal investigative unit in Fed-OSHA such a
unit In Fed-OSHA, modeled afler that existing in Cal OSHA, would significantly in-
crease the likelihood of successful prosecution in appropriate cases. Another problem
Is the lack of timely Investigations. The law shoula be amended to reduce the time
for an employer to report a death to OSHA. Notification by the police or firefighters
who are usually quicily called to the scene, should be legislatively required, or at
least uniformly sought by Fed-OSHA. Federal OSHA personnel must respond imme-
diately to workplace deaths, and trained criminal investigators should be Included
in the process whenever there is reason to believe a crime may have been commit-
ted. A commitment for such action should be sought from Fed-OSHA, and adequate
funding must of course be provided for staffing.

Most importantly, the law should be strengthened to broaden the scope of its cov-
erage beyond willful violations that result in death, and to impose effective criminal
sanctions. Under existing law, only a willful violation resulting in death may be
prosecuted. Even if a conviction is obtained, the maximum term of imprisonment
18 six months. This is a sharp contrast to other health and welfare statutes, such
as the Resource Conservation and Recovery Act of 1976, where the punishment for
knowingly disposing of hazardous wastes that places another person in an imminent
danger of deatn or serious bodily Injury is up to five years in prison. ^

S. 575 extends the coverage of tne Act and strengthens its sanctions. This wiU
increase the prophylactic effect of the Act, and assure that consequences flow from
the action, or failure to act, of the employer, rather than the fortuitous fact there
was no death. S. 575 also increases penalties to a level so that a violation will be
treated seriously by courts and prosecutors.



»The failure to efTectively use criminal sanctions at the Federal level was well described in
a 1988 House Report aptly entitled "Getting Away with Murder In The Workplace: OSHA's
Nonuse of Criminal Penalties for Safety Violations," H. Rept. 38, Oct. 4, 1988.

3 42 U.S.C. Sec. 6928(a).



19

Most importantly, increased penalties will send a message to employers who are
weiring tneir potential liability against their financial bottom line when deciding
whether to invest in safety.

And, contrary to the arguments of some, providing significant criminal penalties
will not, in my view, undermine OSHA by making employers unwilling to cooperate
in departmental inspections. This has not been our experience in California, nor
that of the Federal agencies involved in the enforcement of environmental laws.

In the long run, deterring unsafe working conditions by providing meaningful
sanctions is not only the fair thing to do, but it is also cost effective. I look forward
to seeing the Federal law appropriately strengthened, and I add my voice to those
testifying in support of S. 575.

Senator Metzenbaum. Thank you very much. I do have a few
questions, but I must tell you that every time I attend one of these
hearings on the failure to prosecute employers for willful causing
of death or injury to an employee, or total disregard for the safety
of the individual, I remember an earlier hearing that I chaired. For
9 years, OSHA had been working on a "lockout tagout" standard,
but they still had not issued it. I heard testimony from the wife of
a worker who was crushed by an elevator he was working on be-
cause that standard was not in place.

I remember then asking an OSHA representative, don't vou have
a sense of embarrassment? How could you go home and face your
family that night, knowing that you had not done anything for 9
years?

But I must tell you that I have a sense of embarrassment that
this administration is not here, demanding we pass this legislation.
That is where they ought to be.

Ms. Eilar, OSHA's records indicate that before the incident in-
volving your brother, American Bumper had disconnected the wir-
ing to the stamping press monitor. Why would the company have
disconnected a safety device and, if you know, what effect did it
have on your brother's safety?

Ms. EiLAR. Sir, the brake monitor is a safety device, a safety
valve, and when it detects problems within the brake lining or the
brake clutch, it will shut the press off; it will cycle one or two times
in production and then shut it off automatically.

They override or "jump" that monitor, and they allow employees
to run production in danger. They know that the monitor is detect-
ing that there is a problem, and they are forbidding it from doing
its intended purpose, which is to protect the workers.

Senator Metzenbaum. What has American Bumper done to
make sure this kind of accident never happens again, if you know?

Ms. Eilar. I do not think they have done anything. It is obvious
from its subsequent violations that the problems still exist and that
management condones that type of behavior; that they instruct
their employees to endanger themselves to put out more parts.

Senator Metzenbaum. Mr. Rodriguez, I do not know if your
health makes it possible for you to respond, but how is your health
today, and are you able to work?

Mr. Gould. I will answer that on his behalf He appears not able
to respond. As part of the prosecution case, he was taken up to
Harvard; he was examined there, and he was found to be perma-
nently brain-damaged. The mercury poisoning which is in his body
has given him permanent tremors. He has permanent pain
throughout his body. He cannot walk any longer.



20

This man may look considerably older to you, but he is only in
his early 50's, and his life is just devastated. He almost destroyed
his relationship with his family because of the "mad hatter" syn-
drome; he became violent, and he needed psychiatric care. His con-
dition, Senator, is awful.

Senator Metzenbaum. If the Federal Government could pros-
ecute for serious bodily injuries do you think the Pymm brothers
would be walking free today?

Mr. Gould. Absolutely not. If the law is enhanced with the legis-
lation that you and Senator Kennedy have proposed that is before
this committee, we will see proper prosecution of these cases.

The State laws are not sufficient. I also urge you, Senator, to
consider the fact that in order for people like Vidal Rodriguez to
live any kind of a life after they have been severely damaged, they
cannot live on workmen's compensation benefits. We need Federal
legislation that preempts the State exclusivity to workmen's com-
pensation benefits. They should at least be entitled to be com-
pensated the same way as a victim of an automobile accident is
compensated. Why put them in a special category because they are
honest American working people and say, well, you were not hurt
on the highways. You were hurt on the job, so you have to live on
a pittance — even if it was due to willful conduct on the part of your
employer. We are not suggesting anything other than in those
cases where there is a successful criminal prosecution. Federal law
should preempt the exclusivity of the workmen's compensation ben-
efits so that Mr. Rodriguez and his family can try, with the help
of the money that is recovered for them, to lead some kind of a life.

Senator Metzenbaum. Mr. Delaney, the Chamber of Commerce
claims that if we strengthen OSHA's criminal provisions, employers
would hesitate to cooperate with OSHA, and inspections would be-
come much more adversarial. With your strong criminal enforce-
ment program in Los Angeles, have you found that to be the case?
How many inspections has your department participated in, and
how many times has an employer demanded a warrant?

Mr. Delaney. Mr. Chairman, I have heard that argument ad-
vanced by the Chamber and by others, but I must tell you that our
experience, which now spans more than 8 years in Los Angeles, is
that that is a very rare occasion indeed. I believe there has been
one instance in wnich a question arose about access following one
of our "rollouts," as we call them, where an investigator goes out
when there is a worker death or a serious traumatic injury, and
we seek access to a plant or facility so that we can initiate our in-
vestigation, because frankly, we have found that it is a lot more ef-
fective if we can get people's statements immediately and if we can
see the site, and so on. But I must tell you that has not been our
experience in Los Angeles. I think this may sound good in theory,
but I think it was Justice Holmes who said that, 'The life of the
law is experience," and our experience has not been that.

Besides which in your opening statement, you referred to the en-
vironmental regime which EPA enforces. I think everyone in the
regulated community knows about RCRA, knows about the crimi-
nal enforcement provisions of the Clean Air Act and the Clean
Water Act, and yet on very rare occasions I daresay is it that in-



21

specters cannot gain access because of concerns about criminal
prosecution.

So I think that is, not to put too fine a point on it, a myth, a
chimera, if you will, that would not be realized in practice.

Senator Metzenbaum. Thank you, Mr. Delaney.

Senator Wellstone.

Opening Statement of Senator Wellstone

Senator Wellstone. Thank you, Mr. Chairman.

I asked the chairman if he would yield for a moment because
first of all, Ms. Eilar, I want to apologize for not being here in time
to hear your testimony. Colin McGinnis, who works for me, says
that it was eloquent and powerful, and Grod knows it should be im-
portant. And I quite agree with Senator Metzenbaum, and I am
sure that I am at least a cosponsor of this legislation. I am a little
newer to the Senate, but I have a lot of admiration for the work
that Senator Metzenbaum does, and I think this administration
should make this a priority.

That sounds like rhetoric. Everybody in politics always talks
about making something a priority. But the point is, I am quite
sure if it were the sons and daughters of professional, upper middle
class, upper income Americans who were working under these
kinds of conditions, there would be, Mr. Chairman and hue and
cry, and immediately — immediately — we would pass the kind of
legislation we needed to pass to provide protection.

I guess I just want to make a comment above and beyond thank-
ing each of the panelists, since I have to go to a gathering on edu-
cation that I made a commitment to 1 month ago. It strikes me,
listening to this, that the problem with modest civil penalties, Mr.
Chairman, is that it is just from the point of view of some busi-
nesses — let us not lump everyone together, but unfortunately, to
some management, it is just another cost of doing business. That
is all it is. And really, the only way to make some of these compa-
nies think twice is when we have some real teeth, and that means
some criminal penalties. I mean, there is simply no other alter-
native. We want to reward companies that are good managers and


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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 3 of 17)