You may have forgotten but, almost six months ago, two work-place incidents resulted in three deaths:

At the Linden NJ industrial laundry “North East Linen,” on Dec. 1, 2007, Victor & Carlos Diaz, a truck driver and a laborer, died while cleaning a 20,000 gallon dilution tank without respiratory protection or supervision. (As I read the facts, their employer apparently knew about the violation of OSHA rules see prior reports, below).

In New York City, at the East 62nd Street, Solow Residential Tower, window washers Alcides & Edgar Moreno fell 47 storeys when the permanent scaffold from which they worked collapsed. Edgar Moreno was killed on the scene, but his brother Alcides, survived the fall.

For some earlier reports click here, here, here, and here

I remind you of these now somewhat ancient tragic tales because six months is the total time the Federal Occupational Safety & Health Administration gives itself to investigate a case. Before six months, OSHA won’t comment. After six months, OSHA still may not comment, but enforcement actions, if any, will be announced. One outcome of this policy of silence is that people following the issues lose track of them. So here are three related updates: one hopeful, one business-as-usual for Mayor Bloomberg’s Buildings (all-fall-down) Dept., and one concrete proposal for improving OSHA criminal enforcement.

The Good News After a difficult two-year struggle, the workers at North East Linen and New England Linen (its New Haven, Ct. based sister plant) are represented by the laundry workers division of Unite-Here . For a report of the events at the New Haven plant (together with a celebratory video) click here . Unite-Here speaker Eric Sharfstein confirmed that in “both locations workers are negotiating their first contract and Unite-Here is working in both locations to ensure the safety of every worker”

The Bad News The fall of the Moreno brothers fell under the jurisdiction of more than one agency. One of them, I am sad to say, was the New York City Buildings Department which licenses scaffold operators and whose rules require that the scaffold in question be operated under the supervision of a Licensed Master Rigger. As I reported here, my search of the DOB records showed no licensed rigger on scene . The first few times I called the Buildings Dept, I was told they had no comment because the incident was under investigation. Now, almost six months later , Mr. Bloomberg’s Building Dept, ostensibly under new management, failed to return any number of calls. As I was typing my notes, DOB sent me an email stating they were cooperating with another investigation, referred me to the NYC Dept. of Investigation which had no comment. Barbara Thompson of the Manhattan DA's office confirmed an investigation declined further comment. Hold your breath not.

A Good Idea University of Michigan Law Professor and former career environmental crimes prosecutor David L. Uhlmann , reports in Tuesday’s New York Times, on a vast hole in the law enforcement arsenal of the Occupational Safety & Health Act .

Prof. Uhlmann begin with a tale as harrowing and appalling as that of North East Linen, in my opinion:

On a hot August morning in 1996, Scott Dominguez reported to work at Evergreen Resources, a small fertilizer manufacturing plant in his hometown, Soda Springs, Idaho. The workday began like any other, with gruff commands barked out by the owner of the company, Allan Elias, who was a Wharton graduate, a lawyer and one of the most notorious violators of environmental and worker-safety laws in the state.
Mr. Elias wanted his workers to clean out a 25,000-gallon tank that contained cyanide waste. He refused to test the air or the waste inside the tank. He ignored the pleas of his workers for safety equipment. When the workers complained of sore throats and difficulty breathing, Mr. Elias told them to finish the job or find work somewhere else.
Mr. Dominguez, a 20-year-old high school graduate, wanted to keep his job. Wearing just jeans and a T-shirt, he used a ladder to descend into the tank. Two hours later, covered in sludge and barely breathing, he was removed from the tank, a victim of cyanide poisoning at the hands of a ruthless employer who would blame his “stupid and lazy” employees for the incident.
Mr. Dominguez suffered severe and permanent brain damage. He now has the rigid body movement and stammering speech found in patients with Parkinson’s disease.

What Mr. Uhlmann discovered as the Justice Dept prosecutor is that OSHA violations – even grievous ones described above-- not resulting in death are not crimes under the Act. Even where death results, the crimes are minor.

My colleagues and I were shocked to learn that an employer who breaks the nation’s worker-safety laws can be charged with a crime only if a worker dies. Even then, the crime is a lowly Class B misdemeanor, with a maximum sentence of six months in prison. (About 6,000 workers are killed on the job each year, many in cases where the deaths could have been prevented if their employers followed the law.) Employers who maim their workers face, at worst, a maximum civil penalty of $70,000 for each violation.

I suggest you read Prof. Uhlmann’s column. It’s long past time to plug this leak

Bookmark/Search this post with:

| | | | | | | |