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2003-12-22 -- US Rarely Seeks Charges for Deaths in Workplace

New York Times, December 22, 2003

WHEN WORKERS DIE

U.S. Rarely Seeks Charges for Deaths in Workplace
By DAVID BARSTOW

Every one of their deaths was a potential crime. Workers decapitated
on assembly lines, shredded in machinery, burned beyond recognition,
electrocuted, buried alive - all of them killed, investigators
concluded, because their employers willfully violated workplace safety
laws.

These deaths represent the very worst in the American workplace, acts
of intentional wrongdoing or plain indifference that kill about 100
workers each year. They were not accidents. They happened because a
boss removed a safety device to speed up production, or because a
company ignored explicit safety warnings, or because a worker was
denied proper protective gear.

And for years, in news releases and Congressional testimony, senior
officials at the federal Occupational Safety and Health Administration
have described these cases as intolerable outrages, "horror stories"
that demanded the agency's strongest response. They have repeatedly
pledged to press wherever possible for criminal charges against those
responsible.

These promises have not been kept.

Over a span of two decades, from 1982 to 2002, OSHA investigated 1,242
of these horror stories - instances in which the agency itself
concluded that workers had died because of their employer's "willful"
safety violations. Yet in 93 percent of those cases, OSHA declined to
seek prosecution, an eight-month examination of workplace deaths by
The New York Times has found.

What is more, having avoided prosecution once, at least 70 employers
willfully violated safety laws again, resulting in scores of
additional deaths. Even these repeat violators were rarely prosecuted.

OSHA's reluctance to seek prosecution, The Times found, persisted even
when employers had been cited before for the very same safety
violation. It persisted even when the violations caused multiple
deaths, or when the victims were teenagers. And it persisted even
where reviews by administrative judges found abundant proof of willful
wrongdoing.

Behind that reluctance, current and former OSHA officials say, is a
bureaucracy that works at every level to thwart criminal referrals.
They described a bureaucracy that fails to reward, and sometimes
penalizes, those who push too hard for prosecution, where aggressive
enforcement is suffocated by endless layers of review, where victims'
families are frozen out but companies adeptly work the rules in their
favor.

"A simple lack of guts and political will," said John T. Phillips, a
former regional OSHA administrator in Kansas City and Boston. "You try
to reason why something is criminal, and it never flies."

In fact, OSHA has increasingly helped employers, particularly large
corporations, avoid the threat of prosecution altogether. Since 1990,
the agency has quietly downgraded 202 fatality cases from "willful" to
"unclassified," a vague term favored by defense lawyers in part
because it virtually forecloses the possibility of prosecution.

The Times's examination - based on a computer analysis of two decades
of OSHA inspection data, as well as hundreds of interviews and
thousands of government records - is the first systematic accounting
of how this nation confronts employers who kill workers by
deliberately violating workplace safety laws. It identified a total of
2,197 deaths, at companies large and small, from international
corporations like Shell Oil to family-owned plumbing and painting
contractors in quiet corners of America.

On the broadest level, it revealed the degree to which companies whose
willful acts kill workers face lighter sanctions than those who
deliberately break environmental or financial laws.

For those 2,197 deaths, employers faced $106 million in civil OSHA
fines and jail sentences totaling less than 30 years, The Times found.
Twenty of those years were from one case, a chicken-plant fire in
North Carolina that killed 25 workers in 1991.

By contrast, one company, WorldCom, recently paid $750 million in
civil fines for misleading investors. The Environmental Protection
Agency, in 2001 alone, obtained prison sentences totaling 256 years.

OSHA has often made itself an easy target for criticism. Labor scolds
the agency for taking years to write new safety rules. Business
ridicules it for nitpicking inspections. But no one disputes OSHA's
duty to deter employers from killing workers by deliberately violating
safety laws, and few object to the idea that OSHA should at least ask
prosecutors to look at such cases.

Yet OSHA - whipsawed by criticism, fearful of public embarrassment -
has become almost paralyzed by even this task, current and former
officials agreed.

In an interview this month, OSHA's administrator, John L. Henshaw,
acknowledged that the agency had referred few cases to prosecutors.
But he insisted that OSHA seeks criminal sanctions "to the fullest
extent that the law provides." And he emphasized that workplace deaths
had fallen over the last five years.

OSHA has not sought more prosecutions, he said, because officials
concluded that most cases simply lacked enough evidence for a
conviction. "There's a higher degree of evidence that you need," he
said.

While true in some cases, this is only part of the explanation. Before
OSHA deems a violation willful, it subjects the case to especially
intense scrutiny, sometimes spending thousands of hours amassing
evidence. It does so because of the stigma attached, and because the
maximum fine for a willful violation is 10 times higher than for
almost any other kind of violation. Only 404 of OSHA's 83,539 cited
safety violations this fiscal year were labeled willful.

"We make sure we have the evidence," said John B. Miles Jr., OSHA's
regional administrator for five Southern states.

Yet when it comes to deciding what to do with that evidence, many
current and former officials said, the culture of reluctance rules,
regardless of which party controls Congress or the White House.

Paul Bakewell, who recently retired after 26 years as an OSHA
inspector and supervisor in Colorado, said that inspectors meet so
much resistance that the very notion of pursuing criminal charges soon
disappears - especially since killing a worker is only a misdemeanor
under federal law.

"I personally didn't think, `Oh, it's a fatal, it's willful, it should
go criminal,' " Mr. Bakewell said, adding, "You just don't need that
grief. The honest to God truth is that it's just going to slow you
down. They want numbers, lots of inspections, and it will hurt you to
do one of these cases."

A Tool That Few Will Use

Posters crammed with statistics line the hallway to John Henshaw's
office in Washington. "Metrics," he calls them.

Numbers drive OSHA's management culture. When Mr. Henshaw speaks of
his accomplishments at OSHA, part of the federal Labor Department, he
makes his case with numbers - 3,000 more inspections this year than in
2000, 9,000 more serious violations.

But one number missing from Mr. Henshaw's posters is how often OSHA
uses its ultimate enforcement tool, the ability to refer cases to
federal or state prosecutors.

The omission matters greatly, veterans of the agency said, because at
OSHA, what gets counted gets rewarded. And if it is not counted, that
sends an unmistakable signal.

When it comes to an interest in prosecuting cases, William M. Murphy,
the top OSHA official in Cincinnati until his retirement in 2002,
said, "We've never communicated that to the staff."

In the early 1990's, OSHA agreed that inspectors should be trained to
work on criminal investigations. The program was discontinued after
fewer than 100 employees had the training.

In 1994, the agency formed an Enforcement Litigation Strategy
Committee to focus resources on cases with "maximum deterrent effect."
Deaths involving willful violations were high on the list. The
committee disbanded after a few meetings.

Two years later, OSHA established a policy requiring its local offices
to advise Washington in writing of "cases appropriate for potential
criminal prosecution." The policy has not been enforced; OSHA
headquarters said it could not find any such written notifications.

The Environmental Protection Agency has more than 200 criminal
investigators and works closely with three dozen environmental
prosecutors at the Justice Department. But Richard E. Fairfax, OSHA's
director of enforcement programs, said he had never met William P.
Sellers IV, the one federal prosecutor in Washington who works almost
entirely on workplace safety crimes. "I know the name," Mr. Fairfax
said in August, "but I'm not placing it."

Indeed, although Mr. Henshaw and his top assistants in Washington
insist on approving any proposed fine over $100,000, they said they
played virtually no role in deciding when the agency seeks criminal
charges. That decision, they said, has been left almost entirely to
local and regional OSHA officials and Labor Department lawyers.

And yet in at least one region of the country, OSHA inspectors have
been instructed in writing not to initiate contact with state law
enforcement authorities, whose local laws often offer stronger and
more flexible criminal sanctions.

Until presented with results of the Times examination, the agency had
never done a comprehensive study of how often workers were killed by
willful safety violations.

The Times tried to identify every such workplace death in the last 20
years. It also tracked every prosecution, conviction and jail sentence
that resulted from these deaths, and it tallied every civil fine.

The deaths were the subject of 1,798 investigations, 1,242 of them by
OSHA. The rest were done by the 21 states and one territory with their
own versions of OSHA. But with a handful of exceptions these state
agencies have been just as hesitant to seek prosecution as the federal
OSHA.

In all, The Times found 196 cases that were referred to state or
federal prosecutors, resulting in 81 convictions and 16 jail
sentences.

Mr. Henshaw declined to comment specifically on The Times's findings
but said he considered it a high priority to seek prosecution for
willful violations that kill. "We have a law under the Occupational
Safety and Health Act that gives us tools, both civil and criminal, to
discharge our responsibility and to correct workplaces," he said. "And
that's what we're trying to do."

High Hurdles From Within

When people at OSHA explain their reluctance to pursue criminal
prosecutions, they sometimes begin by pointing to the example of
Ronald J. McCann.

Mr. McCann, acting regional administrator in Chicago during the early
1980's, was an early champion of criminal prosecutions. He had a
simple, no-nonsense approach: If a death resulted from a willful
violation, it should be referred to the Justice Department without
delay.

But in the early days of the Reagan administration, he said in a
recent interview, that policy brought a clear rebuke from OSHA's new
political appointees. Twelve times he sought prosecutions. "They were
all thrown out." Soon after, he said, he was removed from his job and
transferred so often that he ended up living in a tent to avoid moving
his family again.

"We wanted to stop people from killing," said Mr. McCann, now retired.
"We wanted to make an example of those few people who do so much harm
to society for their own personal gain."

But that impulse - which many OSHA inspectors clearly share - often
runs headlong into a deeper instinct to avoid any action that might
draw unwelcome scrutiny from Washington. That instinct is reinforced,
many OSHA employees say, by an obscure but powerful arm of the Labor
Department, the Office of the Solicitor, which oversees the work of
the department's 500 or so lawyers.

The solicitor, a political appointee who reports to the labor
secretary, makes the final decision on whether to refer a case to the
Justice Department. Thomas Williamson Jr., the Labor Department's
solicitor under President Bill Clinton, called the solicitor's office
a "choke point control" - a mechanism to, among other things, protect
the labor secretary's political flanks.

And in Mr. Williamson's view, referring cases carries risks OSHA can
ill afford. "You lose control of it," he explained. "You start
accusing people of crimes and they get acquitted, you're going to
destroy the credibility of the agency."

For his part, Mr. Phillips, the former regional administrator, said,
"I had more fights with our solicitors than I did with any employer's
attorneys."

Joseph M. Woodward, the top OSHA solicitor at the Labor Department,
described his office's work as necessary and prudent.

"These are cases where somebody has died and you're looking at maybe
it was even a deliberate violation of the standard, so they're very
high-priority cases," Mr. Woodward said. "It's a very serious charge,
and you don't want to make it unless you think that it's warranted,
and that you can prevail. So you analyze it under that much higher
burden of proof."

But the practical result, current and former OSHA officials say, is
that to have even a chance of referral, a case must clear an unwritten
threshold that has little to do with actual legal requirements. In
interviews, OSHA investigators used words like "smoke screen" and
"snow job" to describe the legal objections they encounter.

"It can't just be willful, it has to be obscenely willful," said Jeff
Brooks, who spent 16 years as an inspector and supervisor before
leaving the agency in 2001. "If they didn't purposely with malice seek
to kill this person, then you don't prosecute."

What this means, they say, is that prosecutors often never even get to
assess cases with compelling evidence of criminal wrongdoing. In 1998,
for example, inspectors concluded that willful safety violations had
resulted in a worker being crushed to death by a front-end loader in
Beaver Falls, Pa. They found that the employer, Venango Environmental,
had long known that the machine had defective brakes and steering. An
administrative law judge called the case "replete with evidence" that
Venango had committed willful safety violations.

The case was not referred to prosecutors.

In interviews, a number of federal prosecutors said they would be
happy to take on more of these cases. But Joseph A. Dear, who served
as OSHA administrator under President Clinton, emphasized that such
eagerness was not universal. "After you do all the work, get the file
perfect," he said, "you take it to a U.S. attorney, and they say,
`It's a misdemeanor?' "

Human Life vs. Harassed Burro

When Congress established OSHA in 1970, it made it a misdemeanor to
cause the death of a worker by willfully violating safety laws. The
maximum sentence, six months in jail, is half the maximum for
harassing a wild burro on federal lands.

With more than 5,000 deaths on the job each year, safety experts and
some members of Congress have long argued that hundreds of lives could
be saved if employers faced a credible threat of prosecution.

"A company official who willfully and recklessly violates federal OSHA
laws stands a greater chance of winning a state lottery than being
criminally charged," said a 1988 Congressional report.

Actually, it overstated the odds for much of the country. During the
two decades examined by The Times, in 17 states, the District of
Columbia and three territories, there was not a single prosecution for
willful violations that killed 423 workers.

There have been repeated efforts to make it a felony to cause a
worker's death. But strong opposition from Republicans and many
Democrats doomed every effort. Congress did, however, agree in 1984 as
part of a broader sentencing reform package to raise the maximum
criminal fine to $500,000 from $10,000. And in 1991, it raised civil
fines. But the added deterrent appears modest.

From 1982 until 1991, the median fine for a willful violation that
killed a worker was $5,800, according to the Times examination. Since
1991, the median has been $30,240.

A much less publicized change has actually eroded any remaining
potential for prosecution. Starting in 1990, with a death at a
Nebraska meatpacking plant, OSHA began to accede to employer demands
that it replace the word "willful" with "unclassified" in citations
involving workplace deaths.

Unclassified was a term invented by lawyers who specialize in
defending corporations against OSHA. Indeed, the word appears nowhere
in the law or regulations governing OSHA. But the agency's field
manual permits the "unclassified" designation when an employer is
willing to correct unsafe conditions "but wishes to purge himself or
herself of the adverse public perception attached to a willful"
violation.

Mr. Woodward, the top OSHA solicitor, acknowledged that employers
"might occasionally" push for unclassified violations to minimize
criminal liability. But he defended the arrangement as a useful
compromise.

Companies, he explained, "might do everything in the world that you
wanted them to do as far as fixing the problem and making the
workplace safer for the workers." But the big sticking point, he said,
was "they didn't want to admit willful."

Major corporations, and their lawyers, have been increasingly
successful in persuading the agency to eliminate the word "willful,"
The Times found. The agency has done this even for employers who have
repeatedly shown a deliberate disregard for safety laws, resulting in
multiple deaths.

The effects of the new policy have been felt by families in several
small towns around the country where, over the last decade, refineries
and petrochemical plants either owned or co-owned by Shell Oil have
blown up because of safety violations.

Each town in turn was consumed by the disasters, the funerals and the
cleanup. And every time, safety investigators would show up and dig
in, filling thick files with the details of how management had
disregarded known hazards. Often, the safety violations were exactly
the same from plant to plant. And yet in each case, defense lawyers
persuaded regulators to label the most flagrant violations
unclassified.

In Belpre, Ohio, an explosion in 1994 killed three workers. OSHA
called it a "runaway chemical reaction" and blamed poor training,
inadequate maintenance, bad equipment and shoddy oversight.

Anacortes, Wash., a small town on Puget Sound, shook from the
explosions the day before Thanksgiving 1998. Necessary maintenance had
been put off, investigators found, and pledges of safety improvements
had been neglected. Six men died.

Almost three years later, in Delaware City, a crew was working near a
tank filled with spent sulfuric acid at the Motiva Refinery, a plant
with a long history of leaks, injuries and deaths. Managers had issued
the work order despite employees' warnings that the tank was severely
corroded and overdue for maintenance, according to court records and
OSHA documents. A welding torch ignited leaking vapors, and the
explosion flung Jeffrey Davis, 50, into the tank. The acid consumed
all but the steel shanks of his boots.

Then last year, a worker was killed at the Shell plant in Geismar, La.
OSHA inspectors spent over 12,000 hours documenting a series of
preventable safety violations.

In all, Shell and partners paid $4.3 million in OSHA fines for the 11
deaths, sums too small to make a meaningful dent in Shell's earnings.
There was no admission of wrongdoing, no referral to prosecutors.

"When you are talking settlement, essentially the rules go away," said
Robert C. Gombar, a lawyer for Shell in the Anacortes and Delaware
City explosions. Mr. Gombar's firm, McDermott, Will & Emery in
Washington, advertises on its Web site that it "pioneered" the use of
unclassified violations to avoid "unnecessary complication presented
by harmful labels." In the Shell cases, Mr. Gombar said, the company
simply persuaded OSHA that it should not cite any willful violations.
"They know we'll litigate and we'll win,'` he said.

In a written statement, Shell said that it was treated no differently
from any other company and that its "highest priority" was employee
safety.

That was not the accountability many of the 11 families had
envisioned.

Dyna Fry had learned from the evening news that her husband, Woody,
was among those killed in Anacortes. She became consumed with piecing
together what happened. She said she yearned for a criminal trial so
managers would be forced to "make eye contact with my family."

Other Shell widows and relatives felt the same way.

"We would have worked in McDonald's for the rest of our lives if it
meant anyone would go to jail for this," said Nicole M. Granfors,
whose father, Ronald J. Granfors, was killed in Anacortes.

In Delaware, the state's congressman and senators wrote to Mr. Henshaw
this year and demanded that he account for "OSHA's inexplicable
decision" to reduce the violations in Delaware City. OSHA's handling
of the case, they wrote, had compounded "the emotional trauma for the
family."

In response, OSHA's deputy administrator, R. Davis Layne, wrote that
OSHA had simply "exercised its prosecutorial discretion" to settle a
contested case. Families, he explained, are not consulted "regarding
confidential litigation matters."

But if OSHA saw no potential for a criminal case, Delaware's attorney
general, M. Jane Brady, did. In an interview, she recalled the stunned
reaction of one Motiva lawyer when she announced her intention to seek
charges: "You got to be kidding me."

This summer, Motiva pleaded no contest to criminally negligent
homicide and assault, only the second such prosecution in state
history. The company was ordered to pay $46,000 in fines, then the
maximum under state law, and $250,000 more to a victims fund. Soon
after, Delaware changed its law to allow far higher fines.

A Response by the States

Once the dominant regulator of workplace safety, the federal
government is falling behind a growing number of states.

At least four states now require safety inspectors to notify
prosecutors of deaths caused by safety violations. Eleven states have
increased prison terms beyond the six-month federal maximum. In
Michigan, California and Arizona, it is now not only a crime to commit
safety violations that kill but also to commit safety violations that
cause severe injuries.

Again this year, there is talk of toughening the federal law. Three
months ago, in an evaluation of OSHA's handling of deaths among
immigrant workers, the Labor Department's inspector general
recommended that OSHA study the potential deterrent effect of making
it a felony to commit willful violations that kill. In Congress,
Senator Jon S. Corzine, a New Jersey Democrat, is proposing
legislation to increase the maximum sentence to 10 years from six
months.

Like past efforts, this one will meet fierce resistance.

"Obviously we're not going to support the expansion of criminal
penalties," said Randel K. Johnson, vice president for labor issues at
the United States Chamber of Commerce.

At OSHA, Mr. Henshaw recently ordered up some new metrics. After The
Times sought comment about its analysis, he asked his agency to
conduct its own. The results, his aides said, closely mirror those
found by The Times.

They argued, however, that 151 cases could not have been referred to
federal prosecutors because the willful violations were of the
employer's "general duty" to provide a safe workplace, not of a
specific safety standard. Federal law, they said, does not permit
referral in such cases. They conceded, though, that such cases could
be referred to state and local prosecutors.

Nevertheless, Mr. Henshaw made it clear that he saw no need to change
either the law or OSHA's handling of these worst cases of death on the
job.

"You have to remember," he said, "that our job is not to rack up the
individual statistics that some people like to see. Our job is to
correct the workplace."