Companies Avoid OSHA Penalties After Workplace Deaths

OSHA Negotiations, Deletions And More Deaths In South Texas

Some cases never make it to the collection stage.

After OSHA investigates a death and issues citations, it is often faced with a choice: The agency can push to uphold all the violations and penalties, a process that can involve years of litigation.

Or it can negotiate a settlement, which often involves reducing penalties or reclassifying violations.

Another option is deleting violations entirely, erasing the penalties that go with them. In more than 600 cases since 2001, OSHA has investigated a death, issued violations carrying a penalty — and then deleted them all, the Center found.

That occurred in roughly one in every 20 cases.

In all closed cases since 2001, OSHA has agreed to delete more than 104,000 violations that had an initial fine, erasing more than $240 million in penalties.

“There are occasional instances when, after citations are issued, an employer may present additional evidence to indicate that a citation is not warranted,” OSHA said. “If that evidence, when taken into account, persuades the agency that a citation was not warranted, the citation may be deleted.”

Mark Lies, a partner in the Chicago office of the law firm Seyfarth Shaw LLP, is among the lawyers who specialize in squaring off against OSHA.

Lies said he often gets involved soon after an accident occurs and has communications come to him, creating an attorney-client privilege. He sits in on employee interviews with OSHA, if the employee chooses, and reviews OSHAʼs requests for documents.

Employers often fight even small OSHA penalties because having a violation on record could open up a company to more severe penalties in the future and haunt it in related civil lawsuits, said Julie Pace, a senior member at the Cavanagh Law Firm in Arizona.

There are many ways to attack an OSHA citation, lawyers say.

A lawyer could argue that the OSHA standard cited didnʼt apply to the work in question, that no one was actually exposed to the danger or that employee misconduct was to blame, among other defenses.

And if OSHA is unwilling to compromise, Lies said, “itʼs very easy for the employer to go to a judge.”

A stark example of a companyʼs ability to beat back OSHA citations has played out in South Texas.

Gulf Stream Marine [19] loads and unloads ships at ports along the Gulf Coast. In Houston and Brownsville, the company experienced six fatal accidents from 2007 to 2011.

OSHA investigated and issued violations in each case, but, in half of them, agreed to delete all of the violations and erase the penalties.

The accidents bore similarities, OSHA records show. In January 2007, a Houston Gulf Stream Marine employee — not certified to drive a fork truck — ran into a security guard with the pipes being carried on the truck, causing fatal chest wounds.

Three months later, also in Houston, a bundle of pipes being lifted by crane knocked a worker into the side of a ship. He fell into the water and never surfaced.

In 2008, a worker in Houston was crushed by a truck that came loose from the crane loading it onto a ship.

The next year, in Brownsville, a large chain suspended from a crane got stuck, then snapped loose and hit a worker in the head, killing him.

An employee in Houston was run over by a truck in 2010, and, the following year, a truck driver in Brownsville was hit with a 40-ton metal beam and killed.

In one case, OSHA deleted two serious violations carrying a $9,800 penalty after Gulf Stream Marineʼs safety director sent the agency a map [20] showing the areas of the port leased by the company and the areas controlled by the Port of Brownsville.

A spot labeled “incident site” showed the accident occurred just outside the area under Gulf Stream Marineʼs control. OSHA noted in the file, “The evidence suggests Gulf Stream Marine … had no controlling authority over safety and health.” The citations vanished.

In another case, OSHA deleted two serious violations carrying a $10,000 fine because “there were issues” with the phrasing of the regulations cited, OSHA told the Center.

In a third case, OSHA deleted two serious violations and a $10,000 fine in a settlement. OSHA said it got something in return — a company pledge to adopt a new policy.

Others who have dealt with Gulf Stream Marine have been less forgiving than OSHA. “Weʼre getting people killed out there for no reason,” said George Gavito, who recently retired as chief of the Port of Brownsvilleʼs police department.

Gavito said he constantly clashed with the company over safety issues. Brownsville is near the Mexican border, and many workers are poor immigrants, he said. “Theyʼre not going to raise hell,” he said.

Lawyer Bill Tinning has battled Gulf Stream Marine twice.

In 2005, he represented a worker who was offloading large pipes from a truck when one came loose and crushed his head, leaving him in a vegetative state.

In 2003, he sued on behalf of the family of a worker who had been crushed to death by a load that came loose from a crane Gulf Stream Marine was operating.

Tinning alleged in court filings that the company replaced key parts of the crane immediately after the accident, started disposing of the crane even though there was an ongoing OSHA investigation and withheld information about the accident — claiming that one investigator Tinning wanted to depose was a “non-existent person.”

“It was the most outrageous conduct Iʼve run across,” Tinning said.

Gulf Stream Marine refused repeated requests for comment. The company contested the violations in each of the six deaths and, in settlement agreements, has denied breaking the law.

OSHA defended its handling of Gulf Stream Marine, saying “violations have been abated that could have lingered for years had we not settled the cases.”

The agency acknowledged, however, that officials in Houston had failed to flag the inspection of the 2008 death as meeting the criteria for the agencyʼs “Enhanced Enforcement Program.”

Had they done so, there would have been required follow-up inspections and perhaps visits to other company sites. These inspections, OSHA said, might have prevented future accidents.

John Newquist, a former assistant regional administrator for OSHA who retired this year, said Gulf Stream Marineʼs record and OSHAʼs handling of the death cases “should trigger maybe an outside review of it because thereʼs something wrong.”

“This should never happen,” he said. “Itʼs an embarrassment if youʼve got fatality cases and citations deleted.”

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