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NWX-DOL OSHA

Moderator: Kimberly Darby
July 22, 2015
2:00 pm CT

Coordinator:

Welcome and thank you for standing by. At this time all participants are in a listen-only mode. At the end of the presentation we will conduct a question-and-answer session. If you would like to ask a question you may press star-1.

This conference is now being recorded. If you have any objections you may disconnect at this time. I would now like to turn the conference over (Lauren North). Thank you, you may begin.

Lauren North:

Hi everybody, welcome. We're here today to talk about two different cases out of the Houston area, both related to egregious violations of work safety and health. I'm being joined by Assistant Secretary for Occupational Safety and Health, Dr. David Michaels who's here to talk to you about the details of these cases and what we can learn from them.

So we're going to go ahead and get started now and I'm going to hand the call off to Dr. Michaels.

Dr. David Michaels:

Good afternoon, today OSHA is issuing citations in two important cases involving the construction industry in the Houston, Texas area. They have several things in common and I want to go through essentially why these are important cases.

Texas has more fatalities in the construction industry than any other state, more workers - more construction workers in Texas die on the job than any other state. In these two cases, workers fortunately did not die. They could have died very easily. They were hospitalized with very significant injuries. Fortunately they survived.

But they - what they share in common is their employer failed to provide common sense measures that would have saved them from those injuries. In one case, a worker was almost killed in a trench collapse. We've known for more than 2,500 years how to prevent trench collapses. Every employer in the construction industry knows how to prevent trench collapses or they wouldn't be digging trenches.

This employer put this worker in tremendous danger and fortunately that worker survived but as I said was very badly hurt.

In the other case, the employer failed to provide safety fall prevention equipment and worker fell – not, again, to his death, but to very serious injuries. The following day that employer provided fall protection equipment to the workers on that site. In both cases, the employers knew what to do and didn't do it. And workers paid the price for that.

Another important issue in this case is the injury to a temporary worker. In one of these cases, the case involving Cotton Commercial and Gardia Construction it was a temporary worker who fell through the roof resulting in his hospitalization.

We see temporary workers put in danger all too often, not given the proper safety equipment, not given the proper training. We treat host employers and staff agencies as joint employers; they both have a responsibility to make sure workers are safe.

What's notable in this case as well is the staff agency of what's called the Gardia Construction Company did not carry worker's compensation insurance, which makes us very concerned as to what will happen to this worker who has no - whose employer has no insurance coverage.

One of the reasons that post employers choose to use staffing agencies is to pass those costs and those - pass those costs including the cost of worker's compensation on to staffing agencies. And when staffing agencies elect not to provide compensation insurance they put workers at extreme risk.

And finally, this case also - this case involving Cotton Commercial - is an example of an employer who should have reported the hospitalization to OSHA within 24 hours. In this case, the employer knew to report the hospitalization and failed to do that.

And so we're issuing a $70,000 willful penalty for failure - willful failure to report a hospitalization to OSHA. This is the second $70,000 penalty for willfully failing to report an incident to OSHA we're issuing in the last two days. We issued one yesterday in Wisconsin, today in Texas.

Employers must report hospitalizations, amputations, and of course, fatalities to us. And when we see cases like this where employers knew what their responsibilities are and failed to act on those responsibilities, we will issue the maximum penalty.

So that's my summary of why we're moving forward on these cases and what's important about them. I'm happy to answer any questions.

Coordinator:

Thank you. At this time if you would like to ask a question please press star-1 and record your first and last name clearly when prompted. Again, if you would like to ask a question at this time please press star then 1 and record your first and last name clearly when prompted. One moment for your first question.

Our first question comes from Mihir Zaveri of the Houston Chronicle. Sir, your line is open.

Mihir Zaveri:

I'm wondering - you know, when we say these are willful violations how do we know they're willful? And are there any potential criminal violations here?

Dr. David Michaels:

Well, we know they're willful when our inspectors interview the employers and the employees involved and we gather information. On the basis of that information we make the determination that the employer knew what was the right thing to do and chose not to do that.

So you know, in every case like this we will look into the possibilities of criminal violations and we'll see where that goes.

Coordinator:

Thank you. Our next question comes from Laura Furr of Houston Business Journal. Your line is open.

Laura Furr:

Hi, how are you all? I would like to know if you could provide some more information about the first two incidents that you talked about? The first was the trench collapse and you said then the following day a worker didn't have the correct safety equipment. I was wondering if you had any more detail about that.

Dr. David Michaels:

These are two separate events. I'm sorry if I wasn't clear. I assumed everybody has our two news releases. One - these are separate events and separate citations. In one case involving the Hassell Construction Company - that's H-A-S-S-E-L-L, a worker was digging - was in an eight-foot trench and the trench collapsed.

His coworkers actually dug him out with their bare hands and they pulled him out to safety and shortly afterwards the trench collapsed again and the worker was then quickly hospitalized. In the other case you had workers who are on the roof following a fire. They were doing repair on the building. A worker fell through the roof, he fell 12 feet through the roof and was hospitalized with fractured arms and severe contusions.

Hang on for one second here. The - when we returned the next day - well, we didn't return but the following day we did not return the next day because we were told about the instance several days later.

But we say this is willful because the worker's employer, Cotton Commercial, on the day after the worker was hurt - Cotton Commercial made sure all the workers were provided with the required safety equipment.

Laura Furr:

Okay.

Dr. David Michaels:

And in fact, in that case what we learned in talking to the workers is that that worker who's a temporary worker had made the request for a safety harness because he recognized the danger of being on that roof. And the employer denied that request.

Laura Furr:

Thank you, thank you.

Dr. David Michaels:

You're welcome.

Coordinator:

Our next question comes from Russell Mokhiber of Corporate Crime Reporter. Sir, your line is open.

Russell Mokhiber:

Thank you, good afternoon. Another Texas case where the four workers were killed at the DuPont Chemical Plant at LaPorte, Texas; OSHA, in the death part of that case, did not find willful violations. And there's some criticism about that including from University of Maryland Law Professor, Rita Steinzor. I'm wondering why those were not willful given the seriousness of what happened there.

And also, she's critical of OSHA for not referring more cases to the justice department for criminal prosecution. She says that, you know, there's only one or two a year and that you usually say, well, the law's bad but even in FDA kinds of cases when they're only misdemeanors,  they're bringing criminal prosecutions in and gaining the attention of the industry.

So two questions, why not willful on the four worker death cases? And second, why not more criminal referrals?

Dr. David Michaels:

Okay, the first question, the willfulness is not based on the seriousness of what happens. We base our citations on the evidence and the willfulness goes to the state of mind and the knowledge of the employer around the specific incident or these specific hazards. We collect information and we are very careful about any sort of allegations we raise in our citations.

The second question, let me simply say that Professor Steinzor has so much misinformation in that article that it's hard to even respond to it but she's simply wrong.

Russell Mokhiber:

So just to follow up on both parts, she said that...

Dr. David Michaels:

We got two - no, go ahead but we're not going to discuss that article. It's just simply wrong.

Russell Mokhiber:

And what part of it is wrong?

Dr. David Michaels:

Many parts of it.

Russell Mokhiber:

Can you name a couple that are wrong? What article are you talking about and what parts of it are wrong?

Dr. David Michaels:

I saw a piece that Rita Steinzor wrote today. Let's move on to something else because we're here to talk about these other two cases.

Coordinator:

Thank you. Our next question comes from Christopher Cole of Inside OSHA. Your line is open.

Christopher Cole:

Hi, thanks for the call. Dr. Michaels, I was wondering how many cases of alleged willful violations of the new reporting rule has OSHA issued? Is this - you mentioned this is the second in two days. Have there been previous ones?

Dr. David Michaels:

These are our first...

Christopher Cole:

Okay.

Dr. David Michaels:

These are our first two. You know, some of these cases take - the more complicated cases take a longer period of time. We have to get them out within six months but we've only been doing this new program for a little over seven months.

So as these cases are coming in we take them very seriously. We hope we don't have to issue more willful citations in this - for not reporting hospitalizations, amputations, or fatalities to us. But we will continue to do so if we feel it's appropriate.

Christopher Cole:

So you're - you're still working on potential citations that you have not issued yet for willful - for not reporting?

Dr. David Michaels:

We're looking at the evidence in other cases.

Christopher Cole:

Okay.

Coordinator:

Thank you. Our next question comes from Bruce Rolfsen of Bloomberg BNA. Sir, your line is open.

Bruce Rolfsen:

Hi, good afternoon, Dr. Michaels. I wanted to ask these two cases, you know, coming out of, you know, the same general area in Texas, could we be seeing any kind of emphasis program in Texas or parts of Texas regarding construction? Or do you think the current construction inspection regiment in that area is adequate?

Dr. David Michaels:

We no plans at this time for changing our current approach. But we are following up on complaints, on incidents where workers are injured, and continuing to do programmed inspections on a regular basis.

Coordinator:

Thank you. Our next question comes from Sandy Smith of EHS Today. Your line is open.

Sandy Smith:

Thank you. Dr. Michaels, part one of my question actually was going to ask about any type of a special emphasis program for construction in that area. I guess my second question would be you mentioned that Texas has more fatalities in the construction industry than any other state. Why do you think that is? What's going on in Texas?

Dr. David Michaels:

I think that's a very good question. I can't answer it off the top of my head other than simply some recognition that workers are not being given adequate protection.

Whether there are other - it would be a very interesting study to look at some of the issues that are potentially out there like the failure, the lack of requirement for worker's compensation but I can't speak - I can't say knowingly that that's a cause of the higher number of injuries or fatal injuries that occur there.

Coordinator:

Thank you. Our next question comes from Catherine Puleo of Safety Compliance Alert. Ma'am, your line is open.

Catherine Puleo:

Thank you, Dr. Michaels, for taking my question. We don't often see fines from OSHA in the high or the mid six figures. And I'm wondering - this is just for clarification here, you're calling them egregious but are they akin to the per instance violations that OSHA levies occasionally?

Dr. David Michaels:

In fact, that's what these are.

Catherine Puleo:

Okay, okay. I just - I thought so. I didn't see that but...

Dr. David Michaels:

That's the egregious - when we use the word egregious that means we've moved to the...

Catherine Puleo:

Per instance, okay, I see why they're up there. Yes, I was - because usually for fall protection, yes, but I see that, okay.

And also, just a second question, this Cotton Commercial, did this take place during the flooding in Texas, the cleanup? It looks like their business is - the company provides remediation services for structures damaged from disasters. So are they out there cleaning up after the flood?

Dr. David Michaels:

No, this was after a fire.

Catherine Puleo:

Okay, okay. Great, thank you.

Coordinator:

As a reminder, if you would like to ask a question please press star then 1 and record your first and last name clearly when prompted. Next question comes from - there are no further questions at this time, thank you.

Dr. David Michaels:

Great, thank you very much.

Lauren North:

Thank you. Also, this is Lauren. I just wanted to let everybody know that you might want to check out our website, www.osha.gov. The copies of the press releases about the cases we discussed today are available online. Thank you.

Coordinator:

Thank you for your participation. You may now disconnect.

END

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