Outten & Golden: Empowering Employees in the Workplace

When VPP Companies Kill

October 20th, 2017 | Jordan Barab

Over the past month, two workers have been killed at companies participating in OSHA’s Voluntary Protection Programs: Nucor Steel in Decatur, Alabama where Melvin Gant Jr. fell into a vat of the waste products of finished rolled steel, and a contractor at Valero Oil Refinery in Corpus Christi, Texas, Ezequiel Guzman Orozco, who died after allegedly falling from a scaffold.

I say “allegedly,” because Valero claims that the worker, an employee of Brand Energy Solutions, actually died from a heart attack, although “the medical examiner’s office said preliminary notes from Guzman Orozco’s autopsy showed there was blunt-force trauma to his body.”  The Valero case appears to be a VPP double-whammy as the contractor, Brand Energy Solutions at Valero, is also a VPP participant.

Participants in OSHA’s Voluntary Protection Program are supposed to be the best of the best.  The purpose of the program, according to OSHA is to “recognize employers and workers in the private industry and federal agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.” But, of course, the VPP program is more than just a recognition program, it also exempts VPP participants from programmed inspections — those inspections that stem from National or Regional Emphasis Programs, or any other OSHA targeting program.

Despite the goals of the program, sometimes things don’t go as expected, as we have seen recently at Valero and Nucor.

It will be interesting to see how OSHA deals with these fatalities. At the beginning of the Obama administration, VPP had come under significant criticism for allowing unqualified companies — even companies that where workers had died and had received willful citations — to remain in VPP.  In fact, a 2009 fatality at a Valero facility was highlighted by The Center for Public Integrity’s Chris Hamby in an article on hazardous conditions at VPP facilities that are allowed to remain in VPP despite evidence of major safety and health problems. In response to these problems, and in an effort to ensure that no company could simultaneously be a member of VPP and OSHA’s Severe Violator Enforcement Program at the same time,  OSHA issued a new policy in 2013 setting up a process for terminating VPP sites that had experienced fatalities or received a willful violation, but providing an opportunity to appeal the termination to the Assistant Secretary. Deaths among the contractors of VPP participants were considered to be the same as the death of an employee of the participant itself. Nucor has a history of fighting fatality-related terminations, even going to Congress to block OSHA’s actions. Valero, as we have seen, is claiming that the death was not work-related.

Meanwhile, the Voluntary Protection Programs Participants Association (VPPPA) continues to lobby for a bill that would make VPP permanent by writing it into the Occupational Safety and Health Act. The bill has been introduced every year for the past fifteen years, and is currently cosponsored by Reps. Todd Rokita (R-IN), Gene Green (D-TX) and Martha Roby (R-AL). Labor and most Democrats have generally opposed the bill as unnecessary, and also because the current version prohibits participant fees to support the program, fails to require union agreement with their employer’s participation and weakens criteria for admission to the program.

But the main problem with VPP — at least according to the VPPPA — remains unresolved: the failure of the program to grow over the past several years. The reason for the program’s failure to grow is lack of funding.  Under the Bush administration, the program tripled in size, growing to the point where OSHA no longer had the resources to maintain the integrity of the program. There was an enormous backlog of VPP reapproval applications, which meant that hundreds of sites were not being reviewed to ensure that they were still qualified to be part of VPP.  Under the Obama administration, OSHA chose to focus its resources on the program’s integrity (e.g. ensuring scheduled reapprovals) rather than growing its size. The fact that OSHA has not had a budget increase since 2010 has meant that the number of participant have slowly declined as some participants have dropped out or been terminated, while few resources are available to bring in new members.  Neither Trump’s proposed budget nor the budget proposals of the House or the Senate will change this equation much. And, as we reported yesterday, OSHA’s main hiring focus at this point seems to be on inspectors, not compliance assistance staff — which is as it should be.

OSHA has held two stakeholder meetings to “recalibrate” VPP “so that it continues to represent safety and health excellence, leverages partner resources, further recognizes the successes of long-term participants, and supports smart program growth.”  Additional comments were accepted through today.  We shall see what comes out of these discussion. Given the budgetary impedements to growth, the need for OSHA to focus on its core tool — enforcement — and VPPPA’s refusal to consider viable solutions like a fee-based program or graduating long-term participants out of VPP, it’s unlikely that any ideas will surface that will significantly change the program.

This blog was originally published at Confined Space on October 20, 2017. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME)

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