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Alexandra Berzon

Employers finding way around OSHA's tougher stance

29 December 2008

LAS VEGAS, Nevada -- No one saw Michael Taylor fall to his death at the Cosmopolitan construction site nearly a year ago.

But in the investigation after his death, state inspectors found that one of the posts that held up a guardrail system had collapsed. A mistake by one of the many contractors on the site, it seemed, had created the conditions that caused Taylor to fall five floors.

But in the end, no one was held responsible for the safety problems that led to Taylor's death.

That conclusion was reached Sept. 2 by the Nevada Occupational Safety and Health Administration appeals board, even as the agency — stung by appearances it was not aggressively dealing with construction deaths on the Strip — was adopting a new, get-tough attitude in holding employers responsible for workplace safety violations.

The agency's new enforcement tack was to not remove or water down citations when employers informally objected to them, but rather to stand by investigators' findings and force the employers to appeal them to the review board, made up of labor and management representatives appointed by the governor.

But here is the new reality: Employers who do appeal are winning their cases when they take them to the appeals board, because the OSHA staff is unable to make its case.

Safety advocates worry that OSHA's inability to prevail on appeal is evidence the agency doesn't have the resources or will to sufficiently uphold safety regulations and investigate violations.

"There's no good reason for OSHA to consistently lose," said Eric Frumin, director of health and safety for Unite Here, the hotel and apparel workers union. At the federal level, Frumin said, the government usually wins cases on appeal.

Defending many cases on appeal is new territory for Nevada OSHA.

The Sun reported in March that after most of the investigations that followed a rash of Strip fatalities, OSHA had removed citations during informal settlement meetings without providing additional evidence or documentation to justify the reversal. In some cases, OSHA removed all citations associated with the fatalities.

Experts, including officials of the federal agency equivalent to Nevada OSHA, were dismayed to hear of that practice. At congressional hearing in June, Democratic House Representatives said it raised very serious concerns.

But a review of cases that have gone to settlement talks since then — in the wake of the Sun's investigation into how Nevada OSHA investigates Strip construction deaths — indicates the agency has adopted the tougher stance. In each of those four cases, Nevada OSHA did not agree to settlements favorable to employers.

But as a result, more cases have been referred to the review board, where employers prevail.

In April, OSHA spokeswoman Elisabeth Shurtleff said five cases were heard by the review board from 2003 to 2007. In contrast, eight cases were referred to the review board in 2008 and four more are planned to be heard in 2009, she said this month.

OSHA's record there is poor. Of the six 2008 decisions recently provided to the Sun, the review board overturned all citations in four cases, and some of the citations in the remaining two, a review of records shows.

Through Shurtleff, Nevada OSHA refused to answer questions about its informal conference or review board practices.

In an e-mail, Shurtleff issued this statement: "Nevada OSHA has an informal policy of not giving in-person or telephone interviews. Nevada OSHA continues to issue citations, as is warranted by the evidence uncovered in each individual investigation, as it has always done. It is up to the companies to file a contest letter if they don't agree with the findings, and then from there Nevada OSHA will send it to the review board if they deem it's appropriate. If Nevada OSHA takes the investigation forward, it is up to the discretion of the review board as to whether those cases are upheld or overturned. If Nevada OSHA does not agree with the review board's decision, they may or may not appeal it depending on the circumstances of the case."

Nevada OSHA has not appealed any of its 2008 review board cases, Shurtleff said.

After investigating the circumstances of Taylor's death, Nevada OSHA inspectors concluded in March that the corner posts holding up the guardrail that had failed are usually held in place by support pieces called kickers, welded to the bottom. An ironwork subcontractor, Reliable Steel, had violated safety rules by removing the kickers to install a beam and had not replaced them, compromising the structural integrity of the guardrail, OSHA said.

OSHA fined Reliable Steel $2,850 for two "serious" and two "regulatory" violations.

As is usual, the company appealed the findings and requested an informal conference with OSHA officials. At the conference on April 9, Reliable Steel President Timothy Puetz argued that it wasn't his company but another — Schuff Steel — that was responsible for welding the posts incorrectly.

OSHA wouldn't overturn the citations, so Puetz appealed his case to the review board.

During cross examination at the hearing, OSHA inspector Corey Church said he "assumed" the posts would hold 200 pounds, as the law requires, if the bracing had been in place. But he admitted he had conducted no testing to establish that. A Schuff Steel employee testified for OSHA that when his company welded the posts, they should have been able to withstand 2,500 pounds of stress.

But Reliable called four witnesses, including a structural engineer from the Cosmopolitan project who concluded after testing that the posts would have held up without the braces if they had been welded properly.

On Sept. 2, the review board overturned the citations against Reliable Steel.

Puetz said he spent at least $40,000 on the case that overturned the $2,850 in fines. He's not sure now whether it was worth the money or the hassle.

But he feels vindicated.

"It would have been on my record and my employees would have had it on their minds," Puetz said. "It was my name and I had to clear it. It just had to be set right."

A few months later, Schuff Steel persuaded the review board to overturn $12,150 in fines for six violations that followed the death of David Rabun, an ironworker who fell down an elevator shaft at the Cosmopolitan.

For contractors, OSHA's newfound refusal to make deals has become a headache. One safety director said that when his company was cited by OSHA, he used to be able to have the citations reduced or withdrawn by producing documents indicating employees weren't following company rules. Now that doesn't work.

"If you had documentation showing you were doing due diligence you'd get your fines reduced, and that's a thing of the past now," he said. "It's really a shame because the employees are the ones doing the screw-ups."

But others argue that OSHA is required to hold company management responsible for on-site safety. Taking a tougher stance in enforcing workplace safety violations would send a strong message, they say.

"I don't think anything is as good a driver of safety as strong enforcement," said Tom McManus, vice president of SCS Engineers, who consults on workplace safety for casino and construction companies.

Then again, losing case after case at the review board points to deeper problems, say people in the field — including former Nevada OSHA inspectors.

"The bottom line is they're lacking the necessary qualified people to make the process work," said Randy Schlecht, a longtime inspector at Nevada OSHA who retired from the agency last year.

Schlecht and another former Nevada OSHA inspector said the pressure on inspectors sometimes leads to hasty inspections that aren't sufficiently documented to hold up on appeal.

In Nevada, OSHA safety inspectors investigate as many as 115 cases a year depending on their levels of experience, said Shurtleff. In contrast, a federal OSHA inspector said in his region, safety inspectors take on 40 cases a year. Nevada inspectors investigate a higher percentage of workplaces than inspectors in most other states.

Turnover and low staffing have also been major issues for an agency that has trouble competing for talented people with private industry on salaries. OSHA had six unfilled inspector positions for much of the year, and only now that the economy has soured has it been able to fill some of those.

One former Nevada OSHA inspector said those who are new or inexperienced are not prepared to defend their decisions on appeal, or may not provide enough documentation to meet legal standards.

"I think they should have been tougher, but to be tough you have to do the job correctly," he said. "You can't send a dog in there."

Schlecht said that when he went to testify before a review board, he was briefed for just a few minutes by OSHA attorney John Wiles on the morning of his hearing.

Reports from this year's review board hearings indicate that in no case did OSHA have an expert witness testify in defense of the inspectors' judgment, or eyewitnesses to verify their findings. The agency relied in most cases on inspectors' testimony alone, while employers often presented several eyewitnesses and several experts to challenge inspectors' testimony.

In contrast to Nevada's practice, it is not uncommon for other state OSHAs or the federal OSHA to include testimony of expert witnesses, several people familiar with the practices say.

"If you don't have the resources to back up the citations, it's problematic," said Peg Seminario, director of workplace health and safety for the AFL-CIO. "An employer who wants to contest a citation is in the position to bring in resources that are quite substantial. It's the government's responsibility to enforce the law and they need to be able to stand behind their enforcement actions."