NY Times Articles Show Lack of Criminal Prosecutions for Worst OSHA Regulations Violators

Dec. 22, 2003
A series of articles written by David Barstow for the New York Times that began running on Dec. 21 reveal that despite evidence employers are committing willful violations even repeat willful violations that lead to the deaths of employees, OSHA rarely seeks criminal prosecution.

The articles paint a picture of an agency that is reluctant to prosecute, hamstrung by bureaucracy and ultimately ineffective in stopping some of the nation's most egregious violators of the Occupational Safety and Health Act.

The first article, "A Trench Caves In; A Young Worker is Dead. Is It a Crime?" describes the struggle of one family to discover why their loved one died in a trench cave-in, why OSHA chose not to cite the employer for willful violations in his death, and why the agency refused to seek criminal prosecution in the case.

The second article, "U.S. Rarely Seeks Charges for Deaths in Workplace," reveals that about 100 workers die each year as the result of willful violations by their employers or managers of occupational safety and health laws. According to research conducted by the New York Times, OSHA in the past two decades has investigated 1,242 workplace fatalities involving willful violations, but has only sought criminal prosecution in 7 percent of the cases. At least 70 employers have been cited for willful violations that lead to the death of an employee or employees, and then later willfully violated OSHA regulations again, leading to more employee deaths.

The company detailed in the first article in the series Moeves Plumbing is one such employer. The company was cited 14 years ago in the death of Clint Daley, who died when a trench collapsed. Three times before Daley's death, the company received warnings from OSHA about violations of trenching safety regulations.

Thirteen years later, on June 14, 2002, Patrick M. Walters died in 10 feet of mud. He died when the walls of the trench in which he was laying pipe collapsed around him. Despite very specific OSHA regulations about trench safety how trenches over five feet deep must be sloped, supported or contain an adequately sized trench box, and detailing how a competent person must inspect the trench before work commences none of those precautions were taken on that June 14. There was also, says his family, no way to retrieve Walters from the trench should the trench start to collapse. It took rescue workers seven hours to dig his body out of the mud.

Following Walters' death, his family sought answers from OSHA. After all, they reasoned, Walters had been interviewed by an OSHA inspector from the Cincinnati office, Charles Shelton, two weeks before his death because two other Moeves Plumbing employees had been found working in a 15-foot-deep trench that contained an undersized trench box. Luckily, they were not injured. Walters had expressed his concerns about workplace safety or lack thereof to the OSHA inspector.

OSHA was familiar with Moeves Plumbing and its owner, Linda Moeves. The agency had been warning and citing the company since 1984 for trenching violations.

Following the death of Daley, Linda Moeves vowed to clean up her company's safety act, so to speak, and follow federal regulations regarding trenching safety. She said she would train employees in trench safety and conduct safety meetings. According to the account in the New York Times, Moeves started out with good intentions, but by the time Walters died 13 years later, safety meetings and trench safety training were pretty much things of the past, as were trench inspections. In fact, a former safety manager said that during his two years with the company, he did not offer any safety training to employees.

Despite a history of serious and willful violations stretching over a period of almost 20 years, and lobbying by family members and friends that even reached as high as OSHA Administrator John Henshaw, OSHA declined to refer the incident involving Walters' death to the Department of Justice for prosecution.

The agency did cite Moeves Plumbing for several serious violations connected with Walters' death and the inspection that occurred two weeks before his death. The company was originally cited with one willful violation for failing to provide protection against a trench collapse in the earlier incident but that was changed to "unclassified" following a meeting with the OSHA area director in which the company agreed it would not contest the OSHA citations. The company also agreed to pay a greatly reduced fine and to implement the same types of safety training and practices Linda Moeves vowed to institute following the death of Clint Daley 13 years earlier.

What Walters' family learned is that without a designation of "willful" for any of the citations, and without significant monetary penalties in the case, it was unlikely the agency would seek prosecution of Linda Moeves.

"The tragedy of this was it was clearly preventable," Acting Chicago Area Director Dennis A. Connors told the New York Times. "Had the company followed the rules, this young man didn't have to die. And nobody feels good about that."

According to those involved, several things contributed to the agency's decision not to seek prosecution:

  • The Cincinnati office cited Moeves Plumbing for only one willful violation, later changing it to "unclassified." Connors claimed in his interview with the New York Times that he and his aides felt Moeves Plumbing had committed more than one willful violation of OSHA regulations, but added the decision rested with the Cincinnati office and that changing the classification of violations can be part of the negotiation process.
  • The Chicago regional OSHA office decided "significant" penalties over $100,000 per violation were not warranted, despite recommendations by the Cincinnati office for significant penalties. Had the significant penalties requested by the Cincinnati office been issued, then the case would have triggered an automatic review by Henshaw's office.

Although Patrick Walters' family plans to file civil charges against Linda Moeves, they face a significant struggle due to strict workers' compensation laws in the state of Ohio and the lack of any willful violations issued by OSHA against Moeves Plumbing.

In the meantime, the Times article reports, the family interred Patrick Walters in an above-the ground mausoleum, saying they did not want him to be buried underground a second time.

To view the New York Times articles, visit www.nytimes.com.

About the Author

Sandy Smith

Sandy Smith is the former content director of EHS Today, and is currently the EHSQ content & community lead at Intelex Technologies Inc. She has written about occupational safety and health and environmental issues since 1990.

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