The Multinational Monitor

APRIL 1990 - VOLUME 11 - NUMBER 4


L A B O R

Death on the Job

by Joseph A. Kinney and William G. Mosley

On June 26, 1988, a young worker at the Bastian Plating Company in Auburn, Indiana was asphyxiated while cleaning out a tank. The tank had been treated with a substance that emitted lethal vapors when mixed with water--but nobody informed the worker. Four coworkers, aged 19 to 25, were subsequently asphyxiated one by one as they tried to save their friend.

Shock and outrage at the grisly deaths spread far beyond the small town of Auburn. The National Institute for Occupational Safety and Health (NIOSH), a federal agency, said the disaster was the single worst accident to take place in a confined space.

Bastian Plating, however, escaped with a minimal penalty. The Occupational Safety and Health Administration (OSHA) fined the company just $42,000 for negligence; the company is contesting all but $2,000. Under Indiana's workers compensation law, Bastian Plating had to pay only $2,000 for each of the five fatalities.

Modern day sweatshops

Bastian Plating and companies like it have radically transformed the industrial United States, creating modern day sweatshops where workers labor in hazardous conditions with few protections. Built in the void of the 14 million union jobs lost during the 1980s, the new sweatshops maintain the high accident rates and low compensation for victims that characterized the sweatshops of old. They have emerged in places like Auburn, which have weak or no unions and disgraceful environmental and workers' safety and compensation laws, lacking even minimal corporate accountability.

Public awareness of this workplace transformation and its accompanying dangers is lamentably low. Even the Bureau of Labor Statistics, the federal agency charged with data collection, does not keep track of how many workers are killed each year. Only once, in 1985, did a government agency actually try to count the number of workers who died as a result of traumatic, job-related accidents. After painstakingly going through death certificates, NIOSH put the 1985 worker death toll at 7,771. However, NIOSH's count involved only those deaths where information was properly recorded on the death certificate. Dr. Anthony Suruda, a physician who participated in the study, said that the actual figure could be much higher, perhaps 50 percent higher in some states, because of improper diagnoses of the causes of deaths by coroners and physicians.

NlOSH's count further ignored at least 50,000 to 70,000 workers who die annually from workplace-related disease. That is the equivalent of the town of Peoria, Illinois being wiped off the face of the earth by job death and destruction each year. NIOSH also overlooked the roughly 70,000 workers who become permanently disabled from workplace accidents each year.

Despite the magnitude of the crisis, federal spending on occupational safety and health is low. For example, while there is widespread agreement that the Environmental Protection Agency (EPA) is under funded, the federal budget allocates the EPA $20.00 for every $1.00 that goes to OSHA. Similarly, U.S. fish and game inspectors outnumber job safety inspectors by a ratio of six to one.

Reagan and Bush administration officials have defended low OSHA appropriations, claiming that diligent efforts by businesses have reduced the worker death rate. Data collected by the National Safe Workplace Institute (NSWI), however, show that the dangers of the workplace have not decreased in the past decade; they have only been disguised. The shift of jobs from high-risk industries like steel-making, heavy manufacturing and construction, to low-risk jobs like flipping hamburgers has diluted the fatality rates. But workers in high-risk jobs are still four times more likely to die on the job than other workers. In fact, the death rate for these workers, which had been declining at an annual rate of 2.2 percent by the end of the 1970s levelled off in the 1980s. During this period, the Reagan administration reduced the number of Occupational Safety and Health Administration inspectors by a third and the number of site inspections dropped even further. As many as 9,000 workers may have paid with their lives for Reagan's deregulation.

The NSWI offered another perspective on the severity of U.S. workplace safety problems by comparing the U.S. worker fatality rate to fatality rates of other advanced industrialized nations. Using International Labor Organization (ILO) data adjusted for under-reporting, the NSWI study showed that the United States had a worker fatality rate at least 5.8 times higher than Sweden's and 3.5 times higher than Japan's.

Many U.S. workers are killed on the job because U.S. worker safety laws are inadequate. The laws fall into two basic categories: workers' compensation laws which are written by state governments, and federal OSHA regulations and laws that are designed to provide safe and healthy workplaces nationally.

State workers' compensation laws were first passed in 1911; the last state to enact a comprehensive workers' compensation statute was Mississippi in 1958. Under state workers' compensation laws, injured workers receive income, irrespective of fault in their accident; in exchange, workers forfeit their right to sue an employer for recklessness or negligence.

Until 1969, workers' compensation laws were the only avenue open to injured workers following work-related accidents. But these laws focused on compensation rather than prevention and did not significantly reduce workplace injuries. In 1969, coal miners marched on Washington, D.C. demanding a federal mine safety law. They won it, and a year later Congress also passed the Occupational Safety and Health Act of 1970, a broader--but weaker--piece of legislation. President Richard Nixon signed both bills into law, creating a leading role for the federal government in assuring safe and healthy working conditions in U.S. plants, factories and mines.

The combination of workers' compensation and job safety laws has failed to protect workers to the extent expected. Compensation to workers and penalties for employers have been so meager that employers still do not have a strong enough motivation to comply with safety standards. Families and communities are forced to bear the brunt of the cost of workplace death. The costs come in the form of medical bills, wage replacements and other public welfare expenses. The Social Security system, for example, pays well over $10 billion every year in wage replacements to injured workers.

The workplace also became less safe following the millions of lay-offs which occurred during the 1980s, partly as a result of the leveraged buy-outs and corporate restructurings that took place during the latter half of the decade. While companies' workforces were sharply reduced, many U.S. businesses tried to maintain production levels by pushing their remaining workers harder and by hiring cheap temporary labor to fill in. Unfortunately, some of the deepest cuts were in the ranks of engineers, technicians, trainers and safety personnel--the middle managers who were responsible for testing and maintaining plant equipment and training new workers. Huge numbers of the blue-collar employees who knew the workplace and its dangers best also lost their jobs.

The clearest example of the damage caused by the loss of workers and middle managers is the experience of the petrochemical industry. No industry has been more torn asunder by corporate raiders than the petrochemical giants. And probably no company within the industry has been harder hit than Phillips Petroleum.

In December 1984, corporate raider T. Boone Pickens launched a raid on Phillips, sending its stock price soaring. Phillips tried to fend off Pickens and his cronies, ultimately initiating a massive stock buy-back program to keep the company independent. The price of Phillips' stock more than doubled, driving the company into debt.

Although Phillips managed to stay out of Pickens' hands, its workers did not escape his attack unscathed. Saddled with huge debts, Phillips laid off 10,000 of its approximately 25,000 employees. But the company did not cut production, instead demanding more from its workforce. Many jobs once performed by skilled employees were transferred to untrained, low-wage, temporary workers. Worker safety suffered.

In 1989, the Phillips Petroleum refinery in Pasadena, Texas exploded, igniting an inferno that could be seen for 10 miles. The final body count was 23 workers dead and 125 injured. Gerard Scannell, Assistant Secretary of Labor for Occupational Safety and Health, told a Congressional subcommittee investigating the accident that "excluding construction accidents, this is the single most tragic industrial workplace accident in the history of the Department of Labor's Occupational Safety and Health Administration." Robert Wages, Vice President of the Oil, Chemical and Atomic Workers union which represents workers at the plant, testified that "this catastrophe was a disaster waiting to happen--that the consequences were foreseeable." He added, "It is also our belief that this tragedy is only the most recent in a long history of similar events, sharing similar causes and outcomes, and that the Houston fire and explosion portends even greater disasters to come."

NSWI calculations from public and union safety records buttress Wages' claims. The fatality rate in the petrochemical industry soared six-fold from 1985 through 1989. Major oil companies such as Amoco, Union Oil, Mobil and Chevron had numerous accidents involving multiple fatalities. Virtually every petrochemical company that cut back on skilled workers but not production experienced a dramatic increase in accidents. And virtually none of them has been inspected regularly or thoroughly by OSHA.

The future

Prospects for improvement in workplace safety are mixed. Recently there have been some encouraging signs that job safety is working its way up the public agenda. The best chances for change lie with the federal government's enforcement system. Until recently, OSHA was content to play an educational role, meting out only small penalties. For most of the agency's 20-year existence, the Department of Justice investigated no more than one workplace accident every two years for violations of OSHA rules. Now, as many as 10 important cases may be under scrutiny. But many violators still go unpunished. Even though the 1970 OSHA Act provided for criminal penalties, it was not until last year that a company executive served time in jail for OSHA violations. The executive was sentenced to only 45 days.

Recently, Senator Howard Metzenbaum, D-Ohio, introduced legislation in Congress that would strengthen OSHA and job safety enforcement. The bill, S.2154, would substantially increase prison terms and would sanction felony prosecutions in the case of reckless endangerment and serious bodily injury.

Another bill quickly working its way through the legislative process is S.2442, introduced by Senator Paul Simon, D-Ill., which would give family members the right to participate in any investigations into the workplace death of a relative. In response to the bill, OSHA issued a directive which provided many of the rights that Simon's bill would mandate by law. Simon is proceeding with the bill, spokesman Brian Kennedy explained, because "a directive can be changed at any time. Previous OSHA administrators haven't felt the way this one does." Kennedy believes there is a good chance the bill will pass in the next few months.

Reforms are also needed on the occupational health front. Occupational disease is one of the most under-researched, under- funded and ignored areas of public health today. Although data are scarce, conservative estimates put the death toll from occupational disease at 50,000 to 100,000 workers per year, with some 390,000 new cases of occupationally-related diseases appearing each year.

The economic costs--not to mention the social consequences--of this neglect are enormous, possibly running as high as $300 billion each year (including wages lost, lost investments and multiplier effects, since workers who die or are injured in the workplace may no longer make the same contribution to the national economy that they did as full workforce participants). The majority of these costs are passed on to the victims and to society. For example, it is estimated that 16.7 percent of all Social Security Disability Income recipients are occupational disease victims. Victims, families, communities and society cannot afford to continue to subsidize business by sacrificing workers' health.

The solution to the occupational disease crisis lies in prevention. Measures that should be pursued include surveillance of workplaces, medical screening of workers, early intervention and health care and policies which force employers to internalize the costs of occupational disease. In order to prevent a further rise in the incidence of occupational disease, OSHA must more effectively regulate toxic substances used in the workplace, and standards must be developed to establish safe levels of worker exposure.

Despite some state initiatives and evidence that the Bush administration will be somewhat less antagonistic to OSHA, the Reagan years left a legacy that will be difficult to overcome. Legislative and regulatory changes will help alleviate some problems, but meaningful improvement in workplace health and safety will come about only with a renewed national commitment to ensuring that work is not a life-threatening endeavor.


Joseph A. Kinney is the Executive Director and William G. Mosley is a Professional Staff Member of the National Safe Workplace Institute in Chicago, Illinois.


Criminalizing Workplace Negligence

Maine and New York are pushing to make employers criminally liable for negligence and unsafe practices in the workplace. Under a law passed late last year, the Attorney General of Maine has begun criminal investigations into several recent workplace deaths. And, in New York, a company faces felony charges of criminally negligent homicide in the death of a 26-year-old worker.

Federal regulators, however, are lagging behind. The Occupational Safety and Health Administration (OSHA) rarely calls for criminal prosecution and has put an employer in jail for workplace death only once in its more than 20-year history; that was last year, when a South Dakota contractor was found responsible for the deaths of two workers and spent 45 days in jail.

Business often successfully appeals prosecutions by aggressive state and local attorneys on the grounds that, because it is a federal agency, OSHA's feeble penalties supersede state and local law. Workers, businesses and workplace safety advocates in the rest of the country are watching the developments in Maine and New York closely to see if state and local prosecutors can make criminal charges stick.

The new Maine law, initiated by organized labor, holds a person guilty of manslaughter for intentional violations of safety and health standards which lead to employee death. It states in part that "a person is guilty of manslaughter if that person ... has direct and personal management or control of any employment, place of employment or other employee, and intentionally or knowingly violates any occupational safety or health standard of this State or the Federal Government, and that violation in fact causes the death of an employee and that death is a reasonable foreseeable consequence of the violation." The law carries a felony prison term of up to five years and includes the possibility of fines up to $10,000.

Maine businesses, backed by Republican state governor John McKernan, tried to block passage of the bill but only succeeded in removing a clause which would have created a felony offense for intentional violations resulting in serious bodily injury.

Meanwhile, in New York, two managers of Domermuth Environmental Services, a petroleum cleanup company, face up to 15 years in prison for allegedly causing the death of an employee named Adam Keator.

A grand jury found that the defendants "deliberately ignored proper safety and work procedures" when they directed Keator to clean out a tank trailer containing petroleum sludge, according to Attorney General Robert Abrams. The tank exploded, blowing Keator through the roof. New York prosecutors have also charged the company, which could be fined more than $150,000. OSHA officials have proposed fines of only $50,000 against Domermuth.

Samantha Sparks

(Research assistance for this article was provided by Corporate Crime Reporter.)


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