Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘workplace safety’

Trump's war on workers is flying under the radar, but it's relentless

Thursday, August 23rd, 2018

It’s no secret that Donald Trump is not exactly out serving as the champion of workers he suggested he’d be during the 2016 campaign. But the scope of the attack he’s mounted on working people is staggering … and mostly under the radar.

Steven Hill rounds up some of the damage at Working In These Times: The Trump administration killed the Obama-era rule requiring federal contractors to disclose violations of labor law when they bid for contracts. They stopped the Obama administration’s effort to expand overtime eligibility so that millions more people would get overtime when they work more than 40 hours a week.

Then there’s the string of damaging National Labor Relations Board decisions, including a ruling against small unions within larger workplaces, the decision that got McDonald’s off the hook for workers in its franchise restaurants, and:

— Reversing a 2004 decision bolstering workers’ rights to organize free from employer interference.

— Reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms.

— Overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements.

Over at the Occupational Safety and Health Administration, meanwhile, they’ve delayed three important workplace safety rules. And, of course, the Supreme Court has said that employers can force workers into mandatory arbitration, denying them their day in court, and has also attacked public unions in the Janus decision.

These haven’t been high-profile issues, for the most part—they haven’t gotten the attention of the Muslim ban or family separation or Trump’s hostility to allies—but they stand to affect tens of millions of workers’ lives, and even to end some of those lives.

This blog was originally published at Daily Kos on August 25, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

Court Orders EPA To Implement Chemical Plant Safety Rule

Tuesday, August 21st, 2018

In a stinging rebuke to the Environmental Protection Agency, a federal court has called EPA’s delay in implementing the Obama administration’s chemical disaster rule “arbitrary and capricious” and told the agency to implement the rule.

EPA had argued that delaying the rule would reduce industry confusion while it figured out whether it wanted to modify or rescind the rule. The court, noting that the Clean Air Act clearly limits such delays to three months, rejected the EPA’s reasoning. The decision means that EPA can no longer delay enforcement of the rule. So far, only provisions regarding local emergency-response coordination requirements are in effect, while other provisions come into effect in 2021.

We have written frequently here about how issuing standards and regulations designed to protect workers, consumers and the environment is a long and difficult process.  Rescinding or even delaying these legal protections is also difficult because an agency is required to justify its actions and provide evidence showing why the previous regulations are no longer needed. And despite all the fanfare that former EPA administrator Scott Pruitt received for being the deregulator-in-chief, the corners he cut have come back the haunt the Trump Administration’s efforts to undermine the laws that Congress passed to protect people from preventable workplace and environmental hazards.

According to Mike Wright, Director of Health, Safety and the Environment for the United Steelworkers union, who successfully sued the agency, “The decision clearly shows that EPA – and by implication OSHA and other federal agencies – can’t just delay a rule protecting the American people on a whim, or to do the bidding of some outside group.”

Background

Following a number of chemical plant disasters, including the 2013 explosion at West Fertilizer that killed 15 people and destroyed much of the town of West, Texas, President Obama issued an Executive Order that, in part, ordered EPA to reconsider its Risk Management Program (RMP). In January 2017, EPA issued a revised RMP regulation that enhanced requirements related to emergency response, provision of chemical hazard information, and requirements for facilities to consider inherently safer processes, as well as post-accident investigations, more rigorous safety audits and improved training.

“The decision clearly shows that EPA – and by implication OSHA and other federal agencies – can’t just delay a rule protecting the American people on a whim, or to do the bidding of some outside group.” — Mike Wright, USW Director of Health, Safety and the Environment

Provisions of the 2017 rule related to clarifying regulatory definitions were scheduled to come into effect on March 14, 2017. Other provisions, including most local emergency-response coordination requirements, were supposed to become effective on March 14, 2018. The requirements for emergency response exercises, public information-sharing and post-accident public meetings, third-party audits, more rigorous post-incident analyses, and safer technology requirements are not scheduled to become effective until March 15, 2021.

The Trump administration, under then EPA Administrator Scott Pruitt, delayed enforcement of the rule three times, the last time by issuing the “Delay Rule,” which delayed enforcement of the rule for 20 months while the agency decided whether to modify or rescind the Obama rule. (The EPA did, in fact, issue a proposal to rescind most provisions of the Obama rule last May. That process is not affected by this decision.) A number of organizations, including the United Steelworkers union, sued EPA, arguing that “The Clean Air Act (CAA) is explicit that reconsideration ‘shall not postpone the effectiveness of the rule,’ beyond a three-month period.” A number of other environmental and community groups joined in challenging the delay, along with a number of states.

A Mockery of the Statute

The court found that EPA’s delay rule “makes a mockery of the statute” because it  violates the paragraph in the Clean Air Act that requires EPA rules to “have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable.” The court writes that “The Delay Rule does not have the purpose or effect of “assur[ing] compliance”; it is calculated to enable non-compliance.” And the EPA did not consider the delay’s effect on the requirement to “prevent accidental releases,” to “minimize . . . consequences of any such release,” to “protect human health and the environment,” and “to include procedures and measures for emergency response after an accidental release.”

The court criticizes EPA for basing the delay on a bunch of “alleged ‘security risks’ and other hypotheticals raised by industry” without actually explaining why the implementation delay was necessary.

The court also mocks EPA’s explanation that the delay is intended to avoid confusion among the regulated community and local responders who would have to comply with a rule that might later be changed, when it is actually EPA that’s causing confusion “by the almost two-years’ reconsideration it desires in order to decide what it wants to do.”

EPA is also ignoring the express interest of Congress Congress which expressly stated that it wants compliance with rules “as expeditiously as practicable” and therefore  provided “a strict limit of three months on stays of effective dates pending reconsideration” in order to keep any reconsideration from delaying a final rule.

Arbitrary and Capricious

The court found the EPA’s delay rule to be arbitrary and capricious first, because it didn’t explain why it couldn’t revise (or rescind) the rule while the rule was in effect. Second,the Delay Rule didn’t provide a “reasoned explanation” why the original effective date and compliance dates were unjustified, despite the fact that the EPA in the original Obama rule had gone to great lengths to justify the compliance dates and consider comments from the public. EPA also failed to explain “why the detailed factual findings [in the Obama rule] regarding the harm that would be prevented upon implementation of the Chemical Disaster Rule are now only ‘speculative.’”

The third reason the court found the Delay Rule to be arbitrary and capricious is a favorite of mine. The court found that the EPA’s justification of the delay on “‘the timing’ of a finding by the Bureau of Alcohol, Tobacco, and Firearms . . . that the West Fertilizer explosion was caused by arson’ rather than an accident…is not a reasoned basis for delaying the entire Chemical Disaster Rule.”

As readers of Confined Space are aware, in 2016 — days before the end of the RMP rule comment period — the Bureau of Alcohol, Tobacco and Firearms (BATF), found that the fire that led to the catastrophic explosion at West was intentionally set.  (The Bureau used a highly criticized investigative process to make that doubtful finding, but that wasn’t the reason for the Court’s decision.)

The EPA partially based the Delay Rule on arguments made in chemical industry petitions to the EPA stating that they did not have enough time to comment on the BATF finding and if the cause of the fire was actually arson, that might have affected their comments and the final outcome of the rule, especially in the area of emergency response and provision of chemical information to responders and the public.

But the court rejected EPA’s reasoning — particularly as the argument impacted the emergency-response and information-sharing provisions of the Obama regulation:

Even were the court to agree for purposes of argument that the cause of the West, Texas disaster being arson is relevant to some of the accident-prevention provisions of the Chemical Disaster Rule, it is irrelevant to the emergency-response and information-sharing provisions, including those that have indisputably been delayed from the original March 14, 2018 effective date. Given that twelve of the fifteen fatalities in the West, Texas disaster were local volunteer firefighters and other first responders, this would be a fairly weak explanation for delaying provisions that EPA previously determined would help keep first responders safe and informed about emergency-response planning. (emphasis added)

The court also noted that the West disaster was not the only chemical plant incident that EPA cited to justify the original regulation, citing incidents in Hawaii, Colorado, Washington, California, Louisiana and the 2005 BP refinery explosion in Texas City, Texas.

Standing

One other feature of the court decision was that it granted “standing” to the United Steelworkers Union, allowing the union to sue the agency on behalf of its members who work in chemical facilities and live in communities surrounding the plants. As Wright explained,

The Court’s decision on the USW’s standing is especially important. The ruling clearly shows that unions have the right to defend their members, not only in the workplace, but in the broader community. And that’s a right the labor movement should always be exercising.

One final note. The decision notes that Supreme Court nominee Judge Brett Kavanaugh was a member of the judicial panel at the time the case was argued but did not participate in this opinion.

This blog was originally published at Confined Space on August 17, 2018. 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).

OSHA Speaks to Employers, Ignores Workers, About Deaths in Kansas, Missouri and Nebraska

Tuesday, July 24th, 2018

Too many workers are dying in the states of Kansas, Missouri and Nebraska, according to OSHA Region VII, and employers need to do something about it. An OSHA alert has gone out from the region, “seeking to stem a recent increase in workplace fatalities in Kansas, Missouri, and Nebraska.” The press release cites “an increase in fatalities associated with fallsstruck-by objects and vehiclesmachine hazardsgrain bin engulfment, and burns” and notes that “OSHA has  investigated 34 fatalities in these three states since Oct. 1, 2017.”

Some of the more recent fatalities in these states gleaned from the Confined Space Weekly Tollinclude 39-year-old Rafael Ayala Orozco, of Grand Island, Nebraska, who fell about 80 feet to his death at a fertilizer plant construction site near Hastings and an un-named worker who died at a Michael Foods in Wakefield, Nebraska, last September.

In Missouri, two workers, Joey Hale, 44, and Ben Ricks, 58, died after falling down an elevator shaft at a St. Louis construction site last month. Stephen Lemay was killed when a TV tower in Webster County collapsed near Springfield, and  Stephen Tepatt was electrocuted near Fenton, Missouri last December when the boom on his vehicle hit a high power line and was electrocuted by 12,000 volts.

And in Kansas recently, two Westar Energy employees, operations supervisors Craig Burchett and Jesse Henson died after suffering severe burns at the utility’s electrical largest plant. Jubal D. Hubbard was killed when a high-pressure valve ruptured near Olathe, Kansas last December.

Now calling out employers in these states because they are killing too many workers is a good thing, and rather rare for OSHA. I applaud it.

What bothers me, however, is the wording and tone of the press release. OSHA uses it to advertise its compliance assistance activities, highlighting its free On-site Consultation Program for small- and medium-sized businesses, as well as OSHA’s Recommended Practices for Safety and Health Programs“which offers practical advice on how an organization can create and integrate safety and health programs.”

So far, so good. OSHA’s consultation program and health and safety program practices — including its upcoming “Safe and Sound Week” campaign — are good things, especially for employers who want to do the right thing, but just need a little help.

But then OSHA tells employers that “By implementing and sustaining workplace safety and health programs we can help employees avoid preventable injuries and fatalities.”

To my ears, this sounds a bit blame-the-workerish. Employers are required to provide safe workplaces. Period.  Telling employers they should implement health and safety programs to “help employees” avoid injury or death is kind of like saying we should teach men about women’s rights so that we can “help women” avoid rape.

Injuries and fatalities are not preventable because employees “avoid” them. Certainly, training is important. But the bottom line is that injuries and fatalities are preventable because employers eliminate or minimize the hazards that cause them.

I’m also concerned with what’s missing from the press release.  There is no encouragement of workers to exercise their legal rights under the law. Workers have the right to get information about many of the hazards they’re exposed to, get training and file complaints with OSHA if their employer fails to provide a safe workplace. Strongly encouraging workers to use these rights to prevent injuries, illnesses and fatalities is important in those companies where workers are getting killed, not because their employers haven’t taken advantage of OSHA’s valuable compliance assistance opportunities, but because they are illegally cutting corners on safety.

If OSHA really wants to put pressure on employers in these states, the agency needs to emphasize compliance with the law, enforcement of that law — and workers’ legal role in that process — as well as compliance assistance. The agency needs to not only motivate employers to take advantage of compliance assistance opportunities, but also encourage workers to use their rights to file complaints against employers who are just trying to save a buck on the backs — and lives  — of their employees.

I will undoubtedly be criticized for nit-picking the wording of a press release and not being adequately appreciative of this initiative. But words and message are important.  OSHA doesn’t work if workers don’t know their rights and aren’t encouraged to exercise them. And workplace safety doesn’t work if employers are encouraged to paternalistically “help” their workers, rather than being reminded of their legal responsibility to make their workplaces safe.

This article was originally published at Confined Space on July 19, 2018. Reprinted with permission.

Workplace Safety: Expect Excellence From Your Employer

Tuesday, June 19th, 2018

You should expect your employer to establish a strong safety culture that results in an injury-free, healthy, non-hostile workplace.

Unfortunately, OSHA can only do so much to establish what “safe and healthy” means, or to enforce those protocols. Many people, like those at Public Citizen, recognize that “government protection of workers is far from adequate.”

This means that more must be done than just meeting government standards.

High Standards for Health and Safety Should Be the Norm

Each workplace is unique, so those in charge of safety must identify and mitigate their specific health and safety issues. Hazards also change over time, so safety protocols must be adapted.

The aim, after all, should be to make sure you stay safe and healthy, physically, mentally, and emotionally. That means no workplace injuries, and certainly no fatalities, nor any disrespectful behaviors: expect respect.

What Is a Safe and Healthy Workplace?

In order to make sure you are in a safe and healthy workplace, it’s important to understand what that means. Consider some of the most common causes of workplace injuries: stress, fatigue, falling objects, lifting, collisions, and trip and falls. Are your safety managers addressing these issues?

The environment you work in should be healthy. That means clean air, a clean workspace, good lighting, and reasonable noise levels.   

Management should regularly provide information and training about how to stay safe and healthy. They should encourage and facilitate physical fitness, fatigue prevention, mental and emotional well-being, and healthy eating.

Your health and wellness, and that of your co-workers, are the foundation of a satisfying and productive work environment. Consider that your well-being is also contingent on your co-workers’ well-being. A fatigued or distracted workmate is more likely to create unsafe circumstances for others.

The more rested, clear-headed, and healthy the staff, the safer the work environment will be for everyone.

Be Proactive

You play a part in safety, too. Take moments to stretch, rest, and move as needed. When stress is high, reset with some deep breaths. And keep your workspace clean and free of hazards.

Offer help to other employees who are doing something unsafe. Be respectful of others and expect respect from them. If you see hazards, report them to your safety manager. Make suggestions to improve health and safety. Is there a vending machine with soda, candy, and chips? Request that your employer swap some (all?) of that out for healthier options.

Initiate a walking group or encourage others to join you in training for a local 5 km. Ask your employer if they’ll sponsor you. Get creative in helping to make your workplace a thriving environment.

Know Your Rights, Use Your Voice

Of course, the ideal workplace isn’t always possible in the real world. Some employers simply won’t prioritize employee well-being to the degree they should. When you experience a violation of your health or safety at work, write it down and report it to your employer. A paper trail is your best friend if you need to take further action.

If your employer doesn’t remedy the problem, contact OSHA. You can do this anonymously. You have rights and you should be aware of what they are. In his article “The 6 Reasons OSHA Will Inspect Your Workplace,” Gabe L. Sierra, the managing director of Prometrix Safety Consulting, states, “In many industries, employee complaints are the single most common reason why OSHA will conduct an inspection at a workplace.”

Are you afraid of your employer retaliating? Retaliation is illegal. You can report that to OSHA, too. If you experience discrimination or harassment, you can file a charge with the U.S. Equal Employment Opportunity Commission. For extreme cases of health and safety violations, you can consult a lawyer and file a lawsuit.

Just don’t stay quiet. Speaking up can be frightening, but change doesn’t happen if people remain silent. Consider the recent shift toward intolerance of sexual harassment and assault in the TV and film worlds, and beyond, because people spoke up. By saying something, you’re part of the solution, even if that solution takes time to arrive.  

Your Excellent Work Environment

Let’s hope that you have a safety manager who will be receptive to your suggestions and want to work toward an optimally safe environment.

Most of us spend an enormous amount of time at work. Why wouldn’t we expect and contribute to it being as safe and healthy as possible?

About the Author: TJ Scimone founded Slice, Inc. in 2008. His priority has been design, innovation, and safety. The result is a unique line of cutting tools, all of which are ergonomic and feature finger-friendly® blades. Safety is a key aspect of the Slice message and the website features a weekly Workplace Safety Blog.

My Workers Memorial Day: Fight for Your Union, Fight for Your Lives

Monday, April 30th, 2018

I hope you’re all doing something to commemorate Workers Memorial Day — even if your own personal moment of silence and commitment to do more this coming year to ensure that workers come home safe and healthy at the end of the workday.

Last night I was interviewed on Houston’s  KPFT “Voices at Work” radio show about Workers Memorial Day and the daily  assault on working people. You can listen to it here (the April 27 show), if you have a half hour to burn.  I come on at about minute 30:00

Fight For Your Union

Today I’m in Lake Placid, New York, to give the keynote speech to one-thousand very enthusiastic health and safety reps from CSEA/AFSCME representing state and local workers in New York.  I won’t bore you with the entire speech here, except for one core message that no one should forget:

It comes as no surprise to anyone that the public sector has come under attack recently, and with it, everything that once made America great — great education, roads, infrastructure, health care — all seem to be things of the past.

As tax-cut mania sweeps the country, budgets are slashed, and with them the number of public employees who do America’s most important and most dangerous work.  Those public employees who are left are finding their wages stagnant, their benefits slashed and their working conditions deteriorating.  The only thing saving them — and the America we believe in  — is public employee unions.

You at CSEA have always stood up to those attacks and fought for better working conditions, pay and benefits for the important — and dangerous — work that you do. And now we’re seeing teachers in the reddest of red states stand up, walk out and strike for more education funding.  Is that great or what?

But now, the Supreme Court — at the behest of corporate America and right-wing ideologues — may be poised, with the Janus case, to severely undermine the power of public employee unions and with it, the entire labor movement. If that happens, I can guarantee you that not only will the quality of life in the United States suffer, but more workers — especially public employees — will get hurt and die in the workplace.

Sure, you have a right to a safe workplace. But ultimately your health and safety is safeguarded by your union.

So stand by your union! Fight for your union! And fight for your right to come home safe and healthy at the end of every day!

This blog was originally published at Confined Space on April 28, 2018. 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)

Do Fewer OSHA Inspectors Matter?

Wednesday, January 17th, 2018

One sign that anti-OSHA conservatives are getting nervous about articles (and television appearances) highlighting the declining number of OSHA inspectors are articles questioning whether government plays a useful role in protecting workers. In this case, the Reason Foundation, which “advances a free society by developing, applying, and promoting libertarian principles, including individual liberty, free markets, and the rule of law,” has concluded that reducing the number of OSHA inspectors has no effect on workplace safety.

When I see an article entitled Will Deregulation Kill Workers? by Reason Magazine assistant editor Christian Britschgi, normally I wouldn’t bother to give them any undeserved attention, but some of the arguments he uses are, unfortunately, still commonly used by conservatives in the media and Republicans in Congress, and from time to time we need to expose them.

Based on writings by Bentley University economist John Leeth, Britschgi is basically saying that OSHA isn’t needed because “Employers have much stronger incentives than OSHA to provide a safe workplace.” What are these “stronger incentives” that make OSHA enforcement superfluous?

Workers Compensation: Workers comp, they note, grows more expensive with new injuries and accidents.  And it’s much more significant than OSHA penalties because “workers comp policies cost employers $91.8 billion in 2014…. Total OSHA penalties in that same year totaled only $143.5 million.”

OK, well first, if those numbers are relevant, then that sounds like a great argument to increase OSHA penalties significantly. But the fact is, because State legislatures and courts have undermined workers compensation benefits for injured workers, workers comp covers less and less of the real cost of workplace injuries and illnesses, according numerous studies cited in a 2015 OSHA report, Adding Inequality to Injury:

workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.

Moreover, most workers injured or made ill on the job don’t even receive workers compensation and vulnerable and low-wage workers fare even worse.  Finally, compensating workers for occupational disease is almost non-existent. One study estimates that as many as 97 percent of workers with occupational illness are uncompensated.

Labor markets: Workers would rather work where it’s safe, so they will naturally take jobs working in safer companies rather than unsafe companies. Unsafer companies will therefore be forced to pay workers more to attract them to their unsafe workplaces.  This will provide a natural incentive for employers to make their workplaces safer because if their workplaces are safer, they won’t have to pay workers as much.

Now I’m not a credentialed economist, but even I can find major holes in this theory.  First, such a theory relies on workers having perfect information about which companies are safer than others. Now, this is interesting, because that’s exactly the theory the Obama administration used when issuing its electronic recordkeeping standard. Companies would be required to send their injury and illness information to OSHA and OSHA would post that information, allowing workers to choose safer companies. What’s interesting is that corporate America and Trump’s OSHA has done everything it can to ensure that employer safety records are not made public, from discouraging press releases to opposing the OSHA recordkeepign regulation, claiming that such information unjustly “shames” employers.

The “labor market” theory also assumes that workers would be able to simply and easily move from one (unsafe) employer to another without any loss of income –even assuming there is a safer employer down the street. Obviously that’s often not possible and in any case, that’s easier for high wage workers to lose a little income by changing jobs than lower wage employees who may be living paycheck to paycheck.  And if there are enough desperate workers who need a job, any job, that higher paying, unsafe job isn’t going to pay more for very long.  You’ll have the more common race-to-the-bottom, rather than a race to the top.

Finally, this equation puts workers in a position of choosing between safe jobs or better pay. If you happen to be in a post-Obamacare world with no health insurance and have a sick kid, you might be inclined to take the unsafe, higher paying job.  This is not a choice that we want workers to be forced to make — either from the viewpoint of morality, or the general public welfare. The whole point of the Occupational Safety and Health Act was to eliminate the need for workers to ever have to choose between their jobs and their lives, or better pay and their live.

The ability to sue over workplace injuries and health hazards: Huh? Employees don’t have the ability to sue over workplace injuries. The deal when workers compensation laws were first created is that this would be a “no-fault” system; workers give up the right to sue their employer, in return for relatively certain access to benefits following their injury. (Or at least that was the theory.) Britschgi would have known that (and taken safety and health more seriously) if he had read this article and listened to the accompanying video.

That fact that Britschgi, an assistant editor of Reason Magazine (and presumably his superiors) don’t know that workers can’t sue their employers should have sent this article directly to my Trash folder, so why am I bothering to even address it? I mean, for all I know, he’s 18 years old and this is his first job. Give the kid a break.

Because, as I said above, clearly he is not alone in his ignorance. There are undoubtedly lots of other people out there who think that workers can sue their employers. And easily move to safer jobs. And just rely on workers comp if they get hurt.

The bottom line is that more cops on the beat will make drivers drive more safely, just as more OSHA inspectors will make employers provide safer workplaces. It’s as American as law and order.

This blog was originally published at Confined Space on January 16, 2018. 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).

Workers' lives take a back seat under Donald Trump

Wednesday, January 10th, 2018

America’s bad bosses can’t help but get the message from the Trump administration: your workers’ safety is not a priority.

In the months after President Donald Trump took office, the Occupational Safety and Health Administration lost 40 inspectors through attrition and made no new hires to fill the vacancies as of Oct. 2, according to data obtained through a Freedom of Information Act request.

The departing inspectors made up 4 percent of the OSHA’s total federal inspection force, which fell below 1,000 by early October.

In 2015, OSHA only had enough inspectors to inspect workplaces once every 845 years, according to the AFL-CIO’s Death on the Job report, which meant that most workplaces would only see an inspector after something terrible happens. At this rate, even that won’t be a sure thing in a few years.

This blog was originally published at DailyKos on January 8, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at DailyKos.

When VPP Companies Kill

Friday, October 20th, 2017

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)

When the Parades Are Over, Who Stands With Unions?

Wednesday, September 6th, 2017

The Labor Day parades are over. The bands have packed up. The muscular speeches celebrating workers are finished. The trash is getting collected from parks across the country.  And now conservative politicians from Trump on down will revive their systematic efforts to weaken unions and undermine workers.

Trump – despite all the populist bunting that decorates his speeches – sustains the deeply entrenched Republican antipathy to organized workers. Their attack is relentless.

Trump’s budget calls for deep cuts in the Labor Department, eviscerating job training programs and cutting – by 40 percent – the agency that does research on workplace safety. It would eliminate the program that funds education of workers on how to avoid workplace hazards. It even savages money for mine safety enforcement for the miners Trump claims to love.

Trump is systematically reversing any Obama rule that aided workers. He signed legislation scrapping the rule that required federal contractors to disclose violations of workplace safety and employment and anti-discrimination laws. His Labor Secretary has announced his intention to strip millions of workers of the overtime pay they would have received under Obama DOL regulations.

Trump is creating a pro-business majority at the National Labor Relations Board, which will roll back Obama’s efforts to make it easier for workers to organize, and make it possible to hold home companies responsible for the employment practices of their franchisees.

The GOP’s Anti-Union Strategy

This is simply standard operating procedure for today’s Republican party. Long ago, Republicans realized that organized labor was a central “pillar,” as Grover Norquist described it, of Democratic Party strength. Now Republican office holders at every level – from county officials to statehouses to judges – know that their job is to weaken labor unions. From right to work laws to administrative regulations to court challenges, Republicans sustain an unrelenting attack.

And aided by our perverse globalization strategies, they’ve been remarkably successful. Unions are down to about 7 percent of the private workforce. Public employee unions, a relative stronghold, are facing court challenges – essentially allowing workers to enjoy the benefits of union negotiations without paying dues — that will decimate their membership.

True conservatives would embrace unions. They are a classic “mediating institution,” a voluntary civic organization between government and the individual. Unions increase the voice and power of workers in the workplace, helping to keep executive accountable, and to protect workers from abuse. They also educate their members, teach democracy, and are central to community volunteer and service efforts. They teach and practice democratic citizenship.

The modern Republican Party, of course, is the party of big business and big money. It isn’t conservative; it is partisan. And weakening unions is a constant target.

While Republicans understand how important unions are to Democrats and to workers, Democrats don’t seem to get it. Sure, they line up to get union donations; most will vote to defend unions and worker programs. But as the money in politics has gotten bigger and the unions have gotten weaker, the Wall Street wing of the Democratic Party has become more powerful.

The result is clear. When Republicans get control, they attack unions relentlessly. When Democrats gain control, as they did in 2012 with the election of Barack Obama and Democratic majorities in both houses, labor law reform, empowering workers to organize is not a priority. Obama essentially told unions that if they could get the votes, he’d sign the law, but he wasn’t leading the charge. And so as under Carter and Clinton, changing the law to make it easier for workers to organize and bargain collectively didn’t happen.

Unions Under Siege

Now unions are under siege. Yet it is hard to imagine how a small “d” democracy can be robust, or a large D Democratic Party can regain its mojo without a revived movement of workers. It’s time for Democrats at every level to realize: strengthening workers and their unions isn’t an elective; it’s a requirement and a first priority.

The loop works like this: Unions are in decline. As a result, unions lose influence inside the Democratic Party. The Democrats then feel no pressure to stem unions’ decline, and the economically disadvantaged lose what was once their most powerful advocate. Then the cycle continues. We cannot revive unions, and we have no template for egalitarian politics without them.

Unions aren’t simply economic actors. They’re political actors. Labor still needs the Democrats. The Democrats, more than they realize, still need labor. But most of all, all those who want to build a fairer society need their partnership.

Republican elites understand the doom loop. Big business, small business, and Tea Party alike have pushed hard against unions. As the parties have polarized, Republicans have taken the gloves off, risking the votes of the 40 percent of union members who back Republicans in order to crush a pillar of the Democratic coalition. Even President Bernie Sanders would have real trouble rebuilding unions in the face of a Republican Congress and a federal judiciary eager to swat down pro-labor executive action.

Even without Republican politicians digging their graves, labor unions face deep challenges. In the private sector, unions must sign contracts workplace by workplace. Gawker writers here and home-care workers there will continue to organize their workplaces, but the barriers remain dauntingly high. In the public sector, unions have stood steady. But cops and teachers alike face blowback for putting their own prerogatives above the public interest. And if the Supreme Court bans the collection of agency fees in the public sector (thus imposing “right to work”), public-sector union membership could halve in a decade.

This blog was originally published at OurFuture.org on September 5, 2017. Reprinted with permission. 

About the Author: Robert Borosage is the founder and president of the Institute for America’s Future and co-director of its sister organization, the Campaign for America’s Future. The organizations were launched by 100 prominent Americans to develop the policies, message and issue campaigns to help forge an enduring majority for progressive change in America. Mr. Borosage writes widely on political, economic and national security issues. He is a Contributing Editor at The Nation magazine, and a regular blogger at The Huffington Post. His articles have appeared in The American Prospect, The Washington Post,Tthe New York Times and the Philadelphia Inquirer. He edits the Campaign’s Making Sense issues guides, and is co-editor of Taking Back America (with Katrina Vanden Heuvel) and The Next Agenda (with Roger Hickey).

The Price for Killing Workers Must be Prison for CEOs

Friday, April 28th, 2017

Every 12 days, a member of my union, the United Steelworkers (USW), or one of their non-union co-workers, is killed on the job. Every 12 days. And it’s been that way for years.

These are horrible deaths. Workers are crushed by massive machinery. They drown in vats of chemicals. They’re poisoned by toxic gas, burned by molten metal. The company pays a meaningless fine. Nothing changes. And another worker is killed 11 days later.

Of course, it’s not just members of the USW. Nationally, at all workplaces, one employee is killed on the job every other hour. Twelve a day.

These are not all accidents. Too many are foreseeable, preventable, avoidable tragedies. With the approach of April 28, Workers Memorial Day 2017, the USW is seeking in America what workers in Canada have to prevent these deaths. That is a law holding supervisors and corporate officials criminally accountable and exacting serious prison sentences when workers die on the job.

Corporations can take precautions to avert workplace deaths. Too often they don’t. That’s because managers know if workers are killed, it’s very likely the only penalty will be a small fine. To them, it’s just another cost of doing business, a cost infinitely lower than that paid by the dead workers and their families.

This year is the 25th anniversary of the incident that led Canada to establish federal corporate criminal accountability. It was the 1992 Westray coal mine disaster that killed 26 workers. The Plymouth, Nova Scotia, miners had sought help from the United Steelworkers to organize, in part because of deplorable conditions the company refused to remedy, including accumulation of explosive coal dust and methane gas.

Nova Scotia empaneled a commission to investigate. Its report, titled The Westray Story: A Predictable Path to Disaster, condemns the mine owner, Curragh Resources Inc., for placing production – that is profits – before safety.

The report says Curragh “displayed a certain disdain for safety and appeared to regard safety-conscious workers as wimps.” In fact, Curragh openly thwarted safety requirements. For example, the investigators found, “Methane detection equipment at Westray was illegally foiled in the interests of production.”

The calamity occurred because Curragh callously disregarded its duty to safeguard workers, the investigators said. “The fundamental and basic responsibility for the safe operation of an underground coal mine, and indeed of any industrial undertaking, rests clearly with management,” the report says. 

The USW pressed for criminal charges, and prosecutors indicted mine managers. But the case failed because weak laws did not hold supervisors accountable for wantonly endangering workers.

The Steelworkers responded by demanding new legislation, a federal law that would prevent managers from escaping liability for killing workers. It took a decade, but the law, called the Westray Act, passed in 2003. Under it, bosses face unlimited fines and life sentences in prison if their recklessness causes a worker death.

Over the past 13 years, since the law took effect in 2004, prosecutors have rarely used it. Though thousands of workers have died, not one manager has gone to jail.

The first supervisor charged under the Westray Act escaped a prison sentence when he agreed to plead guilty under a provincial law and pay a $50,000 fine. This was the penalty for a trench collapse in 2005 that killed a worker. There are many methods to prevent the common problem of trench cave-ins, but bosses routinely send workers into the holes without protection.

In 2008, the company Transpavé in Quebec was charged under the Westray Law after a packing machine crushed one of its workers to death. There was a criminal conviction and $100,000 fine. But no one was jailed.

In another case, a landscape contractor was criminally convicted in 2010 for a worker’s death, but the court permitted the contractor to serve the two-year sentence at home with curfews and community service.

Soon, however, prison may become more than a theoretical possibility. A Toronto project manager was sentenced last year to three and a half years in prison for permitting workers to board a swing stage, which is a scaffold that was suspended from an apartment building roof, without connecting their chest harnesses to safety lines. The scaffold collapsed, and four workers plummeted 13 stories to their deaths. A fifth worker survived the fall with severe injuries. Another worker, who had clicked onto a safety line, was unscathed.

Before the project began, the manager took a safety course in which the life-and-death consequences of unfailingly utilizing safety lines was emphasized.

The manager described asking the site foreman, as the foreman and the workers climbed onto the scaffold at the end of the work day on Dec. 24, 2009, why there were not enough safety lines for all of the workers. When the foreman told him not to worry about it, the project manager, who was in charge of the job, did nothing. Seconds later, the scaffold floor split in half, dumping the foreman and four other men without safety lines to the ground.

The prosecutor said the manager’s failure to stop the scaffolding from descending with unsecured workers demonstrated “wanton and reckless disregard for the lives and safety of the workers.” The judge said the manager’s position conferred on him the responsibility for safeguarding the workers and that his conduct constituted criminal negligence under the terms of the Westray Law.

The manager has appealed the sentence. The worker who connected himself to the lifeline said the manager asked him that day to lie about what happened because, the manager told him, “I have a family.”  Of course, that ignores completely the families of the dead men.

It is what far too many bosses and CEOs do. They believe their lives are precious and workers’ are not. That’s why so many supervisors defy worker safety rules.

In most U.S. workplace deaths, the company suffers nothing more than a fine. Last year, for example, an Everett, Washington State, landscape company paid $100,000 for the death of a 19-year-old worker crushed in an auger on his second day on the job. His father, Alan Hogue, told The Seattle Times, “It’s just a drop in the bucket. It’s like fining me $10 for shooting a neighbor.” The state cited the company for 16 serious and willful safety violations.

Federal criminal penalties for killing a worker in the United States are so low that they are insulting. The maximum sentence under OSHA is six months; under MSHA, one year. Prosecutors almost never bring such cases, since the penalties are so low and the burden of proof so high.

U.S. supervisors have gone to jail under state criminal laws, though it’s rare. A New York construction foreman was convicted of criminally negligent homicide and sentenced in 2016 to at least 1 year behind bars for sending a 22-year-old worker into an unsecured trench and for failing to stop work when an engineer warned it was too dangerous. The trench collapsed minutes later.

In a similar case, the owner of a Fremont, Calif., construction company and his project manager were convicted of manslaughter and sentenced to two years in prison after a trench collapsed on a worker. The January 2012 incident occurred three days after a building inspector ordered work to stop because the excavation lacked shoring. The manager ignored the order.

“These men, the workers, were treated like their lives didn’t matter,” Deputy District Attorney Bud Porter told a reporter at the time of conviction.

The only way to make workers’ lives matter is to make prison a real possibility for CEOs and supervisors. Lethal greed must be tempered by frightening ramifications. Fines are no threat.  Only prison is. America needs its own Westray Law and aggressive enforcement.

This post originally appeared on ourfuture.org on April 27, 2017. Reprinted with Permission.

Leo Gerard is the president of the United Steelworkers International union, part of the AFL-CIO. Gerard, the second Canadian to lead the union, started working at Inco’s nickel smelter in Sudbury, Ontario at age 18. For more information about Gerard, visit usw.org.

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