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News :: Labor |
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A Trench Caves In; A Young Worker Is Dead. Is It A Crime? |
Current rating: 0 |
by David Barstow
(No verified email address) |
21 Dec 2003
Modified: 23 Dec 2003 |
An atmosphere of corporate criminal impunity permeates our culture. Whether it is the National Labor Relations Board looking the other way when workers are denied the right to unionize or the fatal neglect of OSHA to effetively enforce the law, most of what people hear in the media is the bleating of the bosses about how they are burdened by excessive regulation. No doubt, this is yet another important story that the News-Gazette will ignore, since their editorial policy concentrates on business boosterism.
Having been a friend of someone who died on the job in Champaign County and seen the company get slapped on the wrist, this is news that should enrage and appall workers. Given that our Congressman Tim Johnson worked for years supposedly representing the interests of injured workers, you might expect him to have pushed for investigation of OSHA's lax enforcement policies in cases such as this or legislation to effectively strengthen the law. Although many local unions have been uncritical supporters of Johnson, all workers have heard on this issue from him is the sound of one hand clapping. |
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Montgomery County Coroner's Office
The body of Patrick Walters as it was removed from the trench that collapsed and killed him in 2002. His family's lawyers provided the photograph.
CINCINNATI As the autopsy confirmed, death did not come right away for Patrick M. Walters. On June 14, 2002, while working on a sewer pipe in a trench 10 feet deep, he was buried alive under a rush of collapsing muck and mud. A husky plumber's apprentice, barely 22 years old, Mr. Walters clawed for the surface. Sludge filled his throat. Thousands of pounds of dirt pressed on his chest, squeezing and squeezing until he could not draw another breath.
His mother, Michelle Marts, was the first in his family to hear.
"You just stand there like you're suspended in blank space," she said of that moment. She remembers being enveloped by a paralyzing numbness. He was her only child. She could not hear or breathe or move. Was this, she found herself wondering, what Patrick felt?
She called Patrick's father, her ex-husband, Jeff. "It literally knocked me off my feet," he said. "I lay there, right there on the floor, screaming and crying."
Mrs. Marts next called Patrick's wife, Crystal. "I remember running upstairs and just hugging my kid and thinking, `How am I going to tell her,' " Ms. Walters said.
Soon after, an investigator from the coroner's office called Mrs. Marts. He could not have been nicer. Such a tragedy, he said. But by then, the first insistent questions had begun to form. Her son had often spoken about his fear of being buried alive. He had described being sent into deep trenches without safety equipment, like the large metal boxes placed in excavations to create a sheltered workspace.
"Was there a trench box?" she asked the investigator. He paused, she recalled. "He says, `Ma'am, no safety procedures were followed. None.'
"He was just so disgusted."
Other officials shared his disgust, starting with the federal safety investigator who stood over the trench that night as Patrick Walters's body was pulled from the mud. Only two weeks before, the same investigator had caught men from the same company Moeves Plumbing working unprotected in a 15-foot-deep trench, a blatant violation of federal safety laws.
One of the men was Patrick Walters, who, when questioned by the investigator, had described a host of unsafe work practices.
"They don't like me on these jobs a lot," Mr. Walters had volunteered, according to a tape recording of the interview.
"Why is that?"
"Because, I don't like getting in the holes even with a box."
The inspector's boss, the federal Occupational Safety and Health Administration's top official in Cincinnati, was angry too. He knew Moeves Plumbing well. In 1989, he had confronted the company over another death. The circumstances were nearly identical: a deep trench, no box, a man buried alive.
But their professional disgust could not touch the pure rage of Patrick Walters's parents. A veteran plumber himself, Jeff Walters knew the treachery of trench walls. Moeves Plumbing would deny any wrongdoing and tell OSHA it was trying to do the right thing on safety. But to Jeff Walters, sending an untrained, unskilled apprentice into an unprotected, unstable, rain-saturated, 10-foot-deep trench was flat-out criminal.
"You done killed my boy!" he recalls screaming that night on the phone to Moeves Plumbing.
His first instinct was revenge by shotgun. His wife and members of his church intervened. They prayed and wept, and then they resolved to seek their justice from the authorities instead.
The entire family mobilized around this goal. Over the next six months, they gathered records, interviewed witnesses and learned all they could about OSHA. Blue collar and self-reliant, they did not expect much from government. Indeed, their research turned up plenty of unflattering descriptions of OSHA. Inept. Timid. Overmatched. Jeff Walters knew OSHA as the guys who would sweat the small stuff show up at a job site and write up a $5,000 fine for a frayed power cord.
Even so, year after year, grieving families across America depend on OSHA to stand for them, and for their dead. Surely, the Walters family reasoned, if OSHA had any purpose at all it was to keep employers from repeatedly killing workers by flouting safety rules.
It is a federal crime for an employer to cause a worker's death by willfully violating safety laws. To initiate a prosecution, OSHA must first refer the case to the Department of Justice. Yet, even in the very worst cases, that is something the agency does only a small fraction of the time.
To the Walters family, though, it seemed like such a small thing to ask for a simple request from one bureaucracy to another to take a look, consider the evidence and decide whether to prosecute. That was it.
"It looked like an open-and-shut case," Mrs. Marts said. "No box. Put down in a hole. Buried alive."
An Apprentice Looking to Please
There was still mud in his ears.
Patrick Walters was laid out in his coffin for the visitation, his face puffy and bruised, his ears still flecked with dried bits of clay. They all noticed.
"Mom, can I put this in with Dad?" Crystal Walters's 4-year-old daughter, Christen, asked, holding up one of her drawings.
Patrick Walters was not Christen's father, but he had raised her as his own. Young, financially pressed and prone to quarrel, Patrick and Crystal Walters had married in 2000; they were separated at the time of his death, but still trying. "I loved him," Ms. Walters, 22, said. "Still do."
Looking at him there that day, Ms. Walters found the whole thing incomprehensible, she said. With his linebacker build and nonstop motor, her husband had seemed so indestructible.
But it was dangerous work, and he had known it. He told his mother of being buried to his waist in one trench. He told his father of being lowered into trenches on the bucket of a backhoe, leaving him no ladder to escape a collapse. "I just ask God never to let me die that way," he said to his wife.
His family urged him to put up a fuss. But he pointed out that he was only an apprentice, easily replaced. If he was seen as a troublemaker, he worried, his bosses would find an excuse to get rid of him. Their attitude, he told his father, was "either do it or go home."
And in truth, he did not have many better alternatives. His troubles in school had begun when he was 10, the same year his parents' marriage broke up. By 16, he was running afoul of the law. An episode involving stolen guns and then a police chase resulted in a stretch in juvenile detention.
"The best thing that ever happened to him," his father said.
Still, an arrest record and a G.E.D. earned him only dead-end temporary jobs in factories. He cleaned animal cages. Whatever the dangers, he saw Moeves Plumbing as his big break.
Small and family owned, about 50 employees, Moeves (pronounced MAY-vis) had agreed to pay for his four-year apprentice program. That would mean a plumber's license and $25 an hour and a decent middle-class life for him and Crystal and Christen.
"He was looking at Moeves like this is my road, my way forward," his father said. There was even talk of them one day forming Walters & Son Plumbing.
It was a hard road for $8.50 an hour. But he stuck with it. He put in hard days on the job, then went to school three nights a week. School records show that he missed only three classes. His grades were good.
"A miracle," his mother said.
His father saw a boy becoming a man.
The Physics of the Trench
On May 31, 2002, a local fire chief called the Cincinnati OSHA office to complain that men were installing a storm drain in an unsafe trench. Charles Shelton, a veteran OSHA compliance officer, was at the scene in less than an hour.
Every trench is a potential death trap. Trench walls give way at any time, often without warning. The deeper the trench the greater the risk, which is magnified further if the soil is loose or wet. Hundreds are killed or injured in trenches each year.
That is why federal safety laws require employers to take special precautions for trenches deeper than five feet. The walls must be sloped back at a safe angle or shored up with bracing. If a trench box is used instead, it must be big and sturdy enough to withstand the tremendous forces of a collapse. A "competent person" someone trained in excavation safety must inspect the trench before work begins and then daily thereafter.
From a parking lot, Mr. Shelton watched the workers from Moeves Plumbing. One was Patrick Walters. Mr. Shelton approached with a video camera. The trench, about 15 feet deep, was neither sloped nor shored. There was a box, but it was far too small only eight feet tall to be effective. And Mr. Shelton had seen men working outside even that undersize shelter.
He shut the job down on a Friday afternoon. On Monday, at 9:22 a.m., he turned on his tape recorder to interview Patrick Walters. "Employees were working in an excavation that was unprotected," Mr. Shelton began, "and I've got this young man, he was exposed to the trench."
His voice was noticeably nervous, but Patrick Walters described a company that did not follow the basic requirements of trench safety. He told of supervisors who tolerated dangerous shortcuts and made little effort to enforce safety rules.
Mr. Shelton asked about safety meetings.
"We've had a couple," Mr. Walters said. "They don't do it regularly anymore." He then volunteered that the company no longer had a safety manager.
"How long has he been gone?"
"I can't remember. It's been a while since we had one."
It had been more than three months.
The safety manager, Robert W. Schum, who left Moeves Plumbing with his son and formed his own company, said in a recent interview that his duties had actually involved "very little safety." His main job, he explained, was managing the warehouse. Sometimes he would check toolboxes for frayed power cords. That was about it. In some two years as safety manager, he said, he could not recall giving any training on trench safety.
The month after he left, Moeves Plumbing sent three supervisors to a training course on trench safety. Two of them including the field supervisor for all Moeves trench crews subsequently supervised the digging of the very trench that now so troubled Charles Shelton.
In his inspection report, Mr. Shelton wrote that he had recommended several immediate changes. Moeves Plumbing needed "someone competent in trenching" to train workers or "at least to identify good and bad trenches and to provide trench protection and enforce compliance," he told a senior company official.
His advice went unheeded. But the company's owner, Linda Moeves, did take one step. She called the OSHA director in Cincinnati, William M. Murphy, to complain.
"She was agitated," Mr. Murphy recalled. Mr. Shelton had asked for records to show that she was training employees in trench safety and seeking to enforce safety rules. "Why does he need to be asking to see these records?" Mr. Murphy recalled her asking.
He remembers telling her she would do well to show that she had trained her employees properly. "And she said, `You know that since that last case we've been trying to do the right thing.' "
Same Company, Another Death
Bill Murphy had not forgotten that last case, 13 years before.
Over more than two decades as the agency's chief in Cincinnati, Mr. Murphy had become a legendary figure within OSHA. He and his office had repeatedly received OSHA's highest awards for aggressive enforcement. His personal history gave him an appreciation for the lives of men like Patrick Walters. He was raised in Scott County, Tenn., one of the poorest counties in the country. The son of a coal miner and farmer who fathered 22 children, he was the first in his family to graduate from high school.
"None of us are smart," Mr. Murphy, 61, said in an interview. "We just work harder."
He knew about death on the job firsthand. One of his half brothers had been electrocuted on a power line; another had fallen to his death erecting steel decking. In one of his first jobs, in an aircraft plant, an explosion killed two men in his work area. Soon after, he went to work for OSHA.
When Mr. Shelton told him about the problems at Moeves Plumbing, Mr. Murphy's mind reeled back to 1989, to that last case and to how afterward Linda Moeves had pledged to do the right thing.
Clint Daley, an inexperienced laborer just like Patrick Walters, had been digging a sewer line with a backhoe operator named Dan Callahan. The trench, 12 feet deep, was neither sloped nor shored. There was no trench box. Mr. Daley was in the trench when the walls cracked. Mr. Callahan shouted a warning.
"By the time he got turned around, it caved in," he said later in a deposition.
What made Clint Daley's death particularly outrageous to Mr. Murphy was that his inspectors had three times before warned Moeves Plumbing's crews about trench safety in 1984, 1985 and 1986. They had issued safety pamphlets, and a $700 fine.
Yet Moeves Plumbing had not bought any trench safety equipment. Nor had it provided any safety training, on trenches or anything else.
Mr. Murphy might have referred the Daley case to the Justice Department for prosecution. He had, after all, concluded that Clint Daley died because Moeves Plumbing willfully violated safety rules. But Mr. Murphy's response was tempered by his assessment of Linda Moeves.
Her husband, the company's founder, had died in 1987, and though she had helped out in the office, it was not clear she had the skills to run a plumbing business. Her prior job was social director of a racket club.
Mr. Murphy admired the way she had hung tough in the cutthroat contracting world. And when she was interviewed by OSHA about Mr. Daley's death, she pleaded ignorance about the prior OSHA warnings, about the $700 fine, even about there being federal safety rules for trenches.
"She was too willing to trust her employees to do the right thing," Mr. Murphy said.
Mrs. Moeves promised deep changes. She quickly enrolled in a trenching safety seminar. She bought hydraulic shoring equipment. She saw that her supervisors and backhoe crews learned trench safety. There would be regular safety meetings, a new safety director and a safety committee to correct hazards.
She also established a written safety policy. Trenches deeper than four feet would be sloped or shored "as required by OSHA standards," the policy said. What's more, trenches would be inspected daily by either Mrs. Moeves or a field supervisor. Employees who broke the rules would be disciplined, and even fired after a fourth offense.
Ultimately, Mr. Murphy fined Moeves Plumbing $13,700 for the violations that killed Mr. Daley.
Over the next three years, Moeves Plumbing was inspected five times and cited for seven relatively minor violations. Mr. Murphy concluded that Mrs. Moeves had learned a painful lesson.
Now, Mr. Shelton's inspection raised some pointed questions about the permanence of that lesson. Court records show that Moeves Plumbing's safety committee had not existed for years. Nor were there records of any trench inspections or of employees being disciplined for safety violations. Several Moeves workers said they could not recall Mrs. Moeves or her supervisors ever directing them to take precautions against trench collapses.
"I was unpleasantly surprised," Mr. Murphy said. "I had thought she had gotten her act together."
Wet, Deep and Deadly
About a week after Charles Shelton's inspection, Moeves Plumbing received a work order for a routine job running sewer and water lines into new homes about 40 miles north of Cincinnati.
The job was assigned to John F. Kehrer, 49, an experienced backhoe operator. Patrick Walters typically worked as Mr. Kehrer's helper, doing the dirty work of laying, cutting and connecting pipes after Mr. Kehrer dug the trench. In a recent deposition given to lawyers for the Walters family, Mr. Kehrer described Patrick Walters as a hard worker who had never refused an instruction.
On the first day of this job, though, Patrick Walters was unavailable. He had gone for treatment after being hit in the back by a backhoe bucket. A doctor prescribed painkillers and cleared him for work.
With another helper, Mr. Kehrer started to dig. In his deposition, he said seeping water had made him worried.
"It's never safe when there is water in there," he explained.
"Why?"
"Because everything is so unstable."
The trench was at least eight feet deep. Still, he said, they took no precautions.
Mr. Kehrer insisted in his deposition that he was not competent to assess the hazards. Yes, he had taken a 10-hour trench safety class with a prior employer. But he also said that he had forgotten most of what he learned, and had received no safety training in six years at Moeves Plumbing.
The next day, Mr. Kehrer returned to finish the job with Patrick Walters. There had been more rain overnight, a downpour that filled the trench. It took hours to pump the water out. Then he started to dig.
Moeves Plumbing's safety policy the one instituted after Clint Daley's death called for a field supervisor to inspect trenches daily. According to Mr. Kehrer, though, no supervisor inspected this trench.
By early afternoon the trench was 10 feet deep. Its walls saturated with rainwater were neither shored nor sloped. There was no trench box, no ladder. It was time to cut a sewer pipe, the helper's job.
Mr. Kehrer said he did not actually order Patrick Walters into the trench. "He knew what to do," he said. But he acknowledged doing nothing to stop him, though he knew enough to recognize that the trench violated federal safety laws.
"I just did not think anything was going to happen, plain and simple," he said.
Mr. Kehrer told an investigator that he felt his backhoe start to shift. It slid toward the trench as the walls began to collapse. He barely had time to yell a warning.
In one great whoosh of mud, Patrick Walters was gone.
The Ingredients for a Prosecution
It took more than seven hours to dig out the body. He was found pitched forward at the waist, knees buckled, hands reaching upward. Charles Shelton was there.
"I can't believe it," Mr. Shelton would tell Mr. Murphy. "I just talked to him."
Again, Mrs. Moeves pleaded ignorance. She told Mr. Shelton that no one had informed her that his inspection uncovered any safety flaws. "I feel that we have a very good safety program," she added.
The men from OSHA were unimpressed.
"Employees take their cues from the leaders of the company," Mr. Murphy said. And despite all Mrs. Moeves's promises, he added, "here the leader of the company was not providing training, was not insisting that things be done the proper way."
What made these failures particularly egregious, Mr. Murphy believed, was that Moeves Plumbing should have known better, given how routinely it dug trenches. Mr. Shelton was not permitted to be interviewed for this article, but records show that he told a police officer that he was considering pushing for criminal charges.
His boss was, too.
Mr. Murphy had long felt that OSHA needed to do more to encourage criminal prosecution. If a company "cheats on paying their taxes," he said, "we will charge them with a felony. Why would we be afraid to do that if they take one of their employees' lives?"
Over the years, he said, he had seen too many companies pay insignificant fines and keep on committing the same violations with the same results.
"You've got to put people in jail," he said.
Yet there was a problem: "Nobody in OSHA has ever really been interested in prosecuting these kinds of cases."
The reasons were complex scarce resources, fear of bad publicity, a collective belief that the Justice Department does not like these cases but the result, he said, was layer upon layer, year after year, of endless review.
And then there were the lawyers.
OSHA is not allowed to refer a case to Justice without approval from its own lawyers, who are Labor Department solicitors. Mr. Murphy was not alone in viewing the solicitors' office as a "black hole" where cases simply disappeared because the lawyers were too busy, too eager to settle or too intimidated, particularly if the employer was a powerful corporation.
"The No. 1 problem in OSHA is you have to fight with your own people to prosecute these cases," he said, adding: "Very few were taken up. Sometimes I'd know why. Sometimes I wouldn't."
But after 23 years, Mr. Murphy was adept at working the system to get his way. And in this case, the strategy was first to persuade the regional office in Chicago and the national office in Washington that Patrick Walters's death should be treated as a "significant penalty" case. In OSHA-speak, that meant the fines would be at least $100,000.
If the case was deemed "significant," he reasoned, there would be a better chance of referral to the Justice Department. Even this would take a real fight. But, he added, "It was a rare thing that I went forward with what I believed to be a significant case and someone in regional or Washington decided not to concur."
One Family's Call to Action
"One huge hurt as one big circle" is how Patrick Walters's stepsister, Jeanie Menz, had put it.
The family rallied around the goal of finding out who was responsible for what went wrong. Aunts, uncles, cousins, stepparents everyone pitched in.
On OSHA's Web site, Ms. Menz found the agency's fatality inspection procedures. One document caught their attention: "Referral for Criminal Prosecution."
No one was quite sure how to proceed, though. They made lists of media contacts and legislators. They brainstormed lists of questions for possible witnesses. A contingent drove to the collapse site and spoke to construction workers, including some who had tried to save Patrick.
"Where did he die?" his mother asked.
"Right where you're standing, ma'am," came the reply.
Crystal Walters wanted answers, too. Yet she also found herself quietly raging at her husband for setting aside all his fears and complaints and climbing into that trench.
"But he was young," she said, "and he thought he was made of steel."
The family shared the sense that friends and neighbors did not understand the depth of their disgust and anger. Even in gestures of sympathy, people caused unintended hurt simply in the way they described his death: Act of God. Accident. Fate.
"My boy got killed is the way I put it," Jeff Walters said.
No, he would say, Mrs. Moeves did not mean for his son to die. But neither does the guy who knocks back a bottle of booze, then goes for a spin and kills his neighbor's child. Either way, he insisted, death was a foreseeable result of reckless behavior. "Any other way," he said, "if somebody kills somebody they go to prison."
But who would hold Mrs. Moeves to account?
Sorting through Patrick Walters's belongings, they found Charles Shelton's business card. Jeff Walters called and left a message.
On the Web, they discovered a support group called Fight, or Families in Grief Hold Together, founded by Ron Hayes, an Alabama man whose son was killed 10 years ago working in a corn silo.
Mr. Hayes is often brutal in his assessments of OSHA. ("Organized crime from top to bottom, son.") But he also considers John L. Henshaw, the agency's administrator, a friend. Mr. Henshaw named him to the National Advisory Committee on Occupational Safety and Health.
Mr. Hayes takes several calls a week from families reeling from a death on the job, wondering what to do next. On Aug. 1, 2002, the call came from Jeff Walters's second wife, Marian. By coincidence, Mr. Hayes was going to be in Cincinnati that week. He agreed to meet for dinner.
Jeff Walters and Ron Hayes have equally vivid memories of that night. They met at a Chinese buffet and felt an instant bond. They were both plumbers. Both of their boys were named Pat, and both had died young. And both had been buried alive.
"You need a willful violation in this, Jeff," Mr. Hayes said that night. "If you don't get the willful, then you don't get the Justice Department investigating."
Even so, he warned, the odds were long. OSHA classified only a tiny percentage of violations as willful, and far fewer were prosecuted. The family would have to be knowledgeable and absolutely determined.
Jeff Walters finally got through to Mr. Shelton. "We need a willful violation against Linda Moeves," he recalled telling him. "She's already killed one person. Now she's killed Patrick."
Mr. Shelton, he said, seemed to share some of his anger.
"I felt like there was a guy out there who was really trying to do his job."
A Shrinking Pool of Allies
That same month, though, the Walters family lost an important ally. Bill Murphy retired from OSHA on Aug. 2, 2002.
And there was a further complication: Linda Moeves's friendship with Richard T. Gilgrist, then one of three assistant area directors rotating through Mr. Murphy's job while a decision was made on a successor.
Mr. Gilgrist's boss, the regional administrator in Chicago, Michael G. Connors, said in an interview that Mr. Gilgrist had called him after the inquiry was "fairly well completed" to discuss an "unusual situation."
According to Mr. Connors, Mr. Gilgrist described what had happened and explained that while his office was planning to push for a "significant penalty" designation, it was recommending a willful violation only for the first incident, involving the 15-foot trench, not for Patrick Walters's death.
But he also said that Mrs. Moeves was a neighbor, and so he was recusing himself from the case. "I believe he absolutely pulled out of the case and did nothing on it after I talked with him," Mr. Connors said.
Mr. Gilgrist's conflict alone, Mr. Connors said, raised something of a red flag. But he also found it "unusual" that the Cincinnati office "would go willful on the nonfatality and then not see willful on the second case."
"I said send the cases up," he recalled.
Mrs. Moeves, meanwhile, had hired Robert A. Dimling, the premier OSHA defense lawyer in town, a man well practiced at extricating clients from OSHA's crosshairs.
One example of his savvy came not long after Mr. Murphy retired. The lawyer, who would not comment on the case, helped arrange for Mr. Murphy and Mrs. Moeves to meet over lunch, where Mr. Murphy offered "to entertain the idea" of helping Moeves Plumbing, Mr. Murphy recalled.
For a $5,000 annual retainer, he could become Mrs. Moeves's OSHA consultant, training her employees and advising her on future matters, including inspections. Mr. Murphy said he made it clear that he could not help on the Walters case. But his reputation, he told her, could ensure that her company was "well respected" at OSHA.
"In my view," he explained, "this was a way to help fix the problems in a comprehensive way."
Mrs. Moeves agreed to consider the offer, he said, but she ultimately did not accept.
The Walters family began to detect a shift in tone from Mr. Shelton. He sounded defensive, Jeff Walters recalled, and suggested that OSHA might not recommend criminal charges. Mrs. Moeves, the inspector noted, was promising safety improvements.
The family pinned its hopes on Ron Hayes, who took the case directly to the top. In late August, he had lunch with John Henshaw, the OSHA chief, at the Alabama Governor's Safety and Health Conference.
Mr. Hayes recalled handing Mr. Henshaw a folder with a photograph of Patrick Walters and documents about Moeves Plumbing. Mr. Hayes said he explained about Clint Daley's death, and about the OSHA inspection two weeks before Patrick Walters's death, and about how, from what he could tell, it pretty much looked as if a 22-year-old had been sent into a death trap.
"He said, `Ronnie, this is horrible,' " Mr. Hayes recalled.
"And I said, `Yeah, John, and these are the people you need to prosecute. I'm depending on you to watch this one.' "
Mr. Hayes said he told Mr. Henshaw that the case was not just about the Walters family. The best way to stop other employers from doing the same thing, he argued, was to bring more prosecutions. Why not start with Moeves Plumbing? ("Asked him to make this happen this case is bad," Mr. Hayes would write in his daily log.)
"I honestly begged," he said. "I couldn't have done anything more than get down on my knees."
Mr. Henshaw did not commit himself, Mr. Hayes recalled. He suggested the family might have better luck with the local district attorney. Yet he also agreed to look into the matter, Mr. Hayes said.
Mr. Hayes left feeling optimistic. He viewed the OSHA bureaucracy as the main obstacle. So he had made an end run. "How much higher can you get?" he asked. "I had such high hopes with John."
The Walters family did, too, especially after Mr. Henshaw wrote to Jeff Walters on Oct. 9, 2002, offering "my heartfelt condolences" and assuring him that OSHA was still investigating.
"Given our mission of providing safer workplaces," he wrote, "we feel each worker's death as a personal loss and tragedy."
Hanging Hopes on a Single Word
On Nov. 26, 2002, nearly six months after her husband's death, Crystal Walters received a letter from OSHA notifying her of the results of its investigation. She read it slowly, carefully, searching each paragraph, each line for one word: willful.
OSHA actually issued two sets of violations one for the trench that killed Patrick Walters, one for the trench inspected two weeks before. In each case, Moeves Plumbing was assessed several serious safety violations for failing to train employees in trench safety and to ensure that trenches were inspected by a "competent person."
Furthermore, OSHA found that Moeves Plumbing committed one willful violation at each trench by failing to provide protection against a collapse. It was exactly the same willful violation that had killed Clint Daley.
"We got the willful," Crystal Walters yelled over the phone to her father-in-law. "Awesome."
In a flurry of calls, word spread through the entire family. The letter, they all believed, was vindication for their months of sleuthing, proof that what happened was not just some act of God. Now it was a matter of pressing OSHA to refer the case to the Justice Department, and then pressing the Justice Department to prosecute.
"We had everything that we needed," Jeff Walters said.
The jubilation lasted all of one day.
It died in a four-page agreement signed on Nov. 27 by Mr. Dimling and the acting area director, Dennis A. Collins. In exchange for Moeves Plumbing's promise not to fight in court, OSHA agreed to one crucial change: The word "willful" was stricken from the violations in Patrick Walters's death.
In its place, OSHA substituted the designation "unclassified" a term of art invented more than a decade ago by some of the nation's top corporate defense lawyers.
Their clients resented the stigma not to mention the legal risks associated with being labeled a "willful" violator of federal safety laws. So the lawyers dangled a carrot: If OSHA would replace the pejorative "willful" with the nonjudgmental "unclassified," their clients would pay higher fines and make substantial safety improvements.
In recent years, though, OSHA has been less and less zealous about collecting those carrots. In the case of Moeves Plumbing, OSHA agreed to cut its fines 40 percent, from $90,000 to $54,000. Moeves Plumbing could pay in four annual installments, with the first not due for another year. It was not required to admit any wrongdoing.
It did, however, agree that employees working in trenches would complete a 30-hour OSHA training course. And it would hire a consultant to perform random trench checks for two years.
On her lawyer's advice, Linda Moeves canceled an interview for this article. But in a brief discussion with a reporter in her offices, she expressed sympathy for the Walters family and defended her company's safety practices. She said she knew that Patrick Walters's relatives had pushed hard for prosecution, and that OSHA had given strong consideration to a criminal referral.
But no employer, she insisted, cares more about the welfare of her workers than she.
Anatomy of a Decision
It was heartbreaking and baffling all at once. No willful violation. No criminal referral. Just like that. Crystal Walters burst into tears. Michelle Marts did, too. They all had the same questions: How could it happen so fast? Why weren't their voices heard? Where was John Henshaw?
"I got swept under the rug," Jeff Walters said. "Like I'm not important."
It was a sickening feeling, they said, this sense that Linda Moeves had gotten away with it and that their government had been complicit. Why else drop the "willful" only on the violation that killed Patrick?
Mrs. Marts remembers Crystal Walters reading her OSHA's brief form letter of explanation. "It should be pointed out that the OSH Act contains no provisions allowing OSHA to impose greater penalties when accident or death is involved," it said.
Yes, it was true that OSHA could not increase its civil fines just because someone died. But didn't the rules explicitly permit OSHA to ask the Justice Department to file criminal charges when death is involved?
"We were both just dumbfounded," Mrs. Marts said. "No explanation. No nothing."
Peeling back the layers is not easy.
Ed Frank, a Labor Department spokesman, said OSHA could not find any records related to its decision not to seek criminal charges against Moeves Plumbing. Among officials involved in the case, only Mr. Connors, the Chicago regional chief, was made available for an interview.
Still, from interviews with him and with the retired Mr. Murphy, as well as an examination of the available record, a much clearer and at the same time profoundly befuddling picture of what happened inside OSHA begins to emerge.
OSHA's final determination seems almost perverse. To begin with, the Chicago office would determine that the violations that killed Patrick Walters were more flagrant than Cincinnati thought yet would reduce the punishment. Stranger yet, Mrs. Moeves escaped a criminal referral not because of anything she did right, but because of something she did wrong.
And in the end, OSHA would say that it had achieved "a good solution" by obtaining promises of additional vigilance and training the same promises Bill Murphy extracted after Clint Daley's death in 1989.
When the Cincinnati office's formal recommendation came in, Mr. Connors said, it was much as Mr. Gilgrist had suggested that summer: it called for willful violations for Charles Shelton's first inspection only, on the ground that work had gone on under the noses of the two supervisors just trained in trench safety. Even so, the area office did recommend a "significant penalty" for both cases $101,500 which would have led to a review by Mr. Henshaw.
Mr. Connors said that he and his assistants in Chicago disagreed with the Cincinnati office on both counts. First, they believed that the violations that killed Patrick Walters were indeed willful.
By law, a willful violation means the employer demonstrated either "intentional disregard" or "plain indifference" toward safety laws. Given the history indeed, the very recent history of trenching violations by Moeves Plumbing, Mr. Connors said he and his aides saw strong evidence of plain indifference, even if they could not prove that Mrs. Moeves was personally aware of the trench's unsafe conditions.
Yet having decided that Moeves Plumbing had again killed a worker by willfully violating safety laws, the Chicago office decided that the case did not warrant a significant penalty. It reduced the proposed fine from $101,500 to $90,000. It also considered and rejected seeking a Justice Department review for possible prosecution.
Mr. Connors said he and his aides had argued long and hard to persuade the Cincinnati office that Patrick Walters's death warranted a willful violation. Wasn't he troubled, then, when the Cincinnati office, without his blessing, promptly dropped the willful designation in its settlement?
"These are always a negotiation," he said.
Recently, the Labor Department's top lawyer circulated a directive restating what he called a basic principle: "special consideration" should be given to referring cases "where the employer's conduct is particularly egregious, such as where the employer has a history of similar violative conduct or of disregarding safety warnings."
Moeves Plumbing's history was considered, Mr. Connors said. But more important, he argued, was being able to show that Mrs. Moeves had "specific knowledge" that her men were working in an unsafe trench. Put another way, having censured Mrs. Moeves for violating a central principle of trench safety making sure the job was inspected and deemed safe OSHA then decided that she should be spared prosecution because that same failure meant she was not aware of the trench's perils.
"The tragedy of this was it was clearly preventable," Mr. Connors said. "Had the company followed the rules, this young man didn't have to die. And nobody feels good about that. We'd love to take it as far as we could and to somehow comfort the family. But I don't know there's anything that we had here that we could do that. And no, we don't feel good about that."
As for John Henshaw, he said in an interview that he had no role in deciding the case. He recalled Mr. Hayes showing him Patrick Walters's photograph at lunch, he said, but he did not remember Mr. Hayes laying out what had happened and beseeching him to refer the case to the Justice Department.
His recollection, he said, was that Mr. Hayes, "a friend of mine," asked him only to make sure Jeff Walters received a condolence letter. The Walters family did not realize it, but it was a form letter that had given them so much hope.
"Ron may have been trying to tell me something," Mr. Henshaw said. "But what I told him was that I don't get involved in these cases. These are done at the regional and area level."
Angry, Unsatisfied, Determined
Patrick Walters's family has a new plan.
Step 1 is to use the civil courts to put Linda Moeves out of business. Step 2 is to use any money won from Moeves Plumbing to mount a campaign against OSHA.
"I'm going to take it, and I'm going to move to Washington and lobby against OSHA from now until the day I die," Jeff Walters, 47, said. "I'm coming after them."
Their chances of winning are remote.
Ohio's workers' compensation laws broadly shield Moeves Plumbing from civil liability, even if its negligence caused Patrick Walters's death. To win the suit, filed in state court, the family must prove that Moeves Plumbing committed an "intentional tort" that it sent Patrick Walters into that trench knowing death or injury was "substantially certain to occur."
Here again, OSHA's actions benefited Moeves Plumbing. By dropping that one willful designation, OSHA made it more difficult to prove an intentional tort.
But Ron Hayes says there is no dissuading Jeff Walters from his plan.
"This man will be a bitter man for the rest of his life," he said. "No. 1 because his son was killed. And No. 2 because his government betrayed him, and like so many others out there the anger just continues to build and build."
If her former husband is focused on changing the system, Mrs. Marts, 45, confesses that she is still battling fantasies of revenge. One involves Linda Moeves buried to her neck in mud. For months, Mrs. Marts has lived on the brink of breakdown.
What eats at her, she said, is that she cannot stop thinking about how her boy died. When she gets into an elevator, she holds her breath as long as she can. She imagines him under all that mud, holding his breath.
She still has not washed his pillow cases or his old clothes, clinging to his fading scent as long as she can. She listens often to his interview with Charles Shelton, to his smoker's cough and his nervous laugh. She visits the cemetery nearly every day, tidying up, rearranging the flowers.
It was a lot of money, but after Patrick died the family agreed that his final resting place would have to be in a mausoleum, not six feet under.
"There's no way I was going to put him in the ground again," his mother said.
Copyright 2003 The New York Times Company
http://www.nytimes.com
http://www.nytimes.com/2003/12/21/national/21OSHA.html |
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U.S. Rarely Seeks Charges For Deaths In Workplace |
by David Barstow
(No verified email address) |
Current rating: 0
22 Dec 2003
|
When Congress established OSHA in 1970, it made it a misdemeanor to cause the death of a worker by willfully violating safety laws. The maximum sentence, six months in jail, is half the maximum for harassing a wild burro on federal lands...There is talk of toughening the federal law. Three months ago, in an evaluation of OSHA's handling of deaths among immigrant workers, the Labor Department's inspector general recommended that OSHA study the potential deterrent effect of making it a felony to commit willful violations that kill. In Congress, Senator Jon S. Corzine, a New Jersey Democrat, is proposing legislation to increase the maximum sentence to 10 years from six months.
Like past efforts, this one will meet fierce resistance.
"Obviously we're not going to support the expansion of criminal penalties," said Randel K. Johnson, vice president for labor issues at the United States Chamber of Commerce.
Every one of their deaths was a potential crime. Workers decapitated on assembly lines, shredded in machinery, burned beyond recognition, electrocuted, buried alive all of them killed, investigators concluded, because their employers willfully violated workplace safety laws.
These deaths represent the very worst in the American workplace, acts of intentional wrongdoing or plain indifference that kill about 100 workers each year. They were not accidents. They happened because a boss removed a safety device to speed up production, or because a company ignored explicit safety warnings, or because a worker was denied proper protective gear.
And for years, in news releases and Congressional testimony, senior officials at the federal Occupational Safety and Health Administration have described these cases as intolerable outrages, "horror stories" that demanded the agency's strongest response. They have repeatedly pledged to press wherever possible for criminal charges against those responsible.
These promises have not been kept.
Over a span of two decades, from 1982 to 2002, OSHA investigated 1,242 of these horror stories instances in which the agency itself concluded that workers had died because of their employer's "willful" safety violations. Yet in 93 percent of those cases, OSHA declined to seek prosecution, an eight-month examination of workplace deaths by The New York Times has found.
What is more, having avoided prosecution once, at least 70 employers willfully violated safety laws again, resulting in scores of additional deaths. Even these repeat violators were rarely prosecuted.
OSHA's reluctance to seek prosecution, The Times found, persisted even when employers had been cited before for the very same safety violation. It persisted even when the violations caused multiple deaths, or when the victims were teenagers. And it persisted even where reviews by administrative judges found abundant proof of willful wrongdoing.
Behind that reluctance, current and former OSHA officials say, is a bureaucracy that works at every level to thwart criminal referrals. They described a bureaucracy that fails to reward, and sometimes penalizes, those who push too hard for prosecution, where aggressive enforcement is suffocated by endless layers of review, where victims' families are frozen out but companies adeptly work the rules in their favor.
"A simple lack of guts and political will," said John T. Phillips, a former regional OSHA administrator in Kansas City and Boston. "You try to reason why something is criminal, and it never flies."
In fact, OSHA has increasingly helped employers, particularly large corporations, avoid the threat of prosecution altogether. Since 1990, the agency has quietly downgraded 202 fatality cases from "willful" to "unclassified," a vague term favored by defense lawyers in part because it virtually forecloses the possibility of prosecution.
The Times's examination based on a computer analysis of two decades of OSHA inspection data, as well as hundreds of interviews and thousands of government records is the first systematic accounting of how this nation confronts employers who kill workers by deliberately violating workplace safety laws. It identified a total of 2,197 deaths, at companies large and small, from international corporations like Shell Oil to family-owned plumbing and painting contractors in quiet corners of America.
On the broadest level, it revealed the degree to which companies whose willful acts kill workers face lighter sanctions than those who deliberately break environmental or financial laws.
For those 2,197 deaths, employers faced $106 million in civil OSHA fines and jail sentences totaling less than 30 years, The Times found. Twenty of those years were from one case, a chicken-plant fire in North Carolina that killed 25 workers in 1991.
By contrast, one company, WorldCom, recently paid $750 million in civil fines for misleading investors. The Environmental Protection Agency, in 2001 alone, obtained prison sentences totaling 256 years.
OSHA has often made itself an easy target for criticism. Labor scolds the agency for taking years to write new safety rules. Business ridicules it for nitpicking inspections. But no one disputes OSHA's duty to deter employers from killing workers by deliberately violating safety laws, and few object to the idea that OSHA should at least ask prosecutors to look at such cases.
Yet OSHA whipsawed by criticism, fearful of public embarrassment has become almost paralyzed by even this task, current and former officials agreed.
In an interview this month, OSHA's administrator, John L. Henshaw, acknowledged that the agency had referred few cases to prosecutors. But he insisted that OSHA seeks criminal sanctions "to the fullest extent that the law provides." And he emphasized that workplace deaths had fallen over the last five years.
OSHA has not sought more prosecutions, he said, because officials concluded that most cases simply lacked enough evidence for a conviction. "There's a higher degree of evidence that you need," he said.
While true in some cases, this is only part of the explanation. Before OSHA deems a violation willful, it subjects the case to especially intense scrutiny, sometimes spending thousands of hours amassing evidence. It does so because of the stigma attached, and because the maximum fine for a willful violation is 10 times higher than for almost any other kind of violation. Only 404 of OSHA's 83,539 cited safety violations this fiscal year were labeled willful.
"We make sure we have the evidence," said John B. Miles Jr., OSHA's regional administrator for five Southern states.
Yet when it comes to deciding what to do with that evidence, many current and former officials said, the culture of reluctance rules, regardless of which party controls Congress or the White House.
Paul Bakewell, who recently retired after 26 years as an OSHA inspector and supervisor in Colorado, said that inspectors meet so much resistance that the very notion of pursuing criminal charges soon disappears especially since killing a worker is only a misdemeanor under federal law.
"I personally didn't think, `Oh, it's a fatal, it's willful, it should go criminal,' " Mr. Bakewell said, adding, "You just don't need that grief. The honest to God truth is that it's just going to slow you down. They want numbers, lots of inspections, and it will hurt you to do one of these cases."
A Tool That Few Will Use
Posters crammed with statistics line the hallway to John Henshaw's office in Washington. "Metrics," he calls them.
Numbers drive OSHA's management culture. When Mr. Henshaw speaks of his accomplishments at OSHA, part of the federal Labor Department, he makes his case with numbers 3,000 more inspections this year than in 2000, 9,000 more serious violations.
But one number missing from Mr. Henshaw's posters is how often OSHA uses its ultimate enforcement tool, the ability to refer cases to federal or state prosecutors.
The omission matters greatly, veterans of the agency said, because at OSHA, what gets counted gets rewarded. And if it is not counted, that sends an unmistakable signal.
When it comes to an interest in prosecuting cases, William M. Murphy, the top OSHA official in Cincinnati until his retirement in 2002, said, "We've never communicated that to the staff."
In the early 1990's, OSHA agreed that inspectors should be trained to work on criminal investigations. The program was discontinued after fewer than 100 employees had the training.
In 1994, the agency formed an Enforcement Litigation Strategy Committee to focus resources on cases with "maximum deterrent effect." Deaths involving willful violations were high on the list. The committee disbanded after a few meetings.
Two years later, OSHA established a policy requiring its local offices to advise Washington in writing of "cases appropriate for potential criminal prosecution." The policy has not been enforced; OSHA headquarters said it could not find any such written notifications.
The Environmental Protection Agency has more than 200 criminal investigators and works closely with three dozen environmental prosecutors at the Justice Department. But Richard E. Fairfax, OSHA's director of enforcement programs, said he had never met William P. Sellers IV, the one federal prosecutor in Washington who works almost entirely on workplace safety crimes. "I know the name," Mr. Fairfax said in August, "but I'm not placing it."
Indeed, although Mr. Henshaw and his top assistants in Washington insist on approving any proposed fine over $100,000, they said they played virtually no role in deciding when the agency seeks criminal charges. That decision, they said, has been left almost entirely to local and regional OSHA officials and Labor Department lawyers.
And yet in at least one region of the country, OSHA inspectors have been instructed in writing not to initiate contact with state law enforcement authorities, whose local laws often offer stronger and more flexible criminal sanctions.
Until presented with results of the Times examination, the agency had never done a comprehensive study of how often workers were killed by willful safety violations.
The Times tried to identify every such workplace death in the last 20 years. It also tracked every prosecution, conviction and jail sentence that resulted from these deaths, and it tallied every civil fine.
The deaths were the subject of 1,798 investigations, 1,242 of them by OSHA. The rest were done by the 21 states and one territory with their own versions of OSHA. But with a handful of exceptions these state agencies have been just as hesitant to seek prosecution as the federal OSHA.
In all, The Times found 196 cases that were referred to state or federal prosecutors, resulting in 81 convictions and 16 jail sentences.
Mr. Henshaw declined to comment specifically on The Times's findings but said he considered it a high priority to seek prosecution for willful violations that kill. "We have a law under the Occupational Safety and Health Act that gives us tools, both civil and criminal, to discharge our responsibility and to correct workplaces," he said. "And that's what we're trying to do."
High Hurdles From Within
When people at OSHA explain their reluctance to pursue criminal prosecutions, they sometimes begin by pointing to the example of Ronald J. McCann.
Mr. McCann, acting regional administrator in Chicago during the early 1980's, was an early champion of criminal prosecutions. He had a simple, no-nonsense approach: If a death resulted from a willful violation, it should be referred to the Justice Department without delay.
But in the early days of the Reagan administration, he said in a recent interview, that policy brought a clear rebuke from OSHA's new political appointees. Twelve times he sought prosecutions. "They were all thrown out." Soon after, he said, he was removed from his job and transferred so often that he ended up living in a tent to avoid moving his family again.
"We wanted to stop people from killing," said Mr. McCann, now retired. "We wanted to make an example of those few people who do so much harm to society for their own personal gain."
But that impulse which many OSHA inspectors clearly share often runs headlong into a deeper instinct to avoid any action that might draw unwelcome scrutiny from Washington. That instinct is reinforced, many OSHA employees say, by an obscure but powerful arm of the Labor Department, the Office of the Solicitor, which oversees the work of the department's 500 or so lawyers.
The solicitor, a political appointee who reports to the labor secretary, makes the final decision on whether to refer a case to the Justice Department. Thomas Williamson Jr., the Labor Department's solicitor under President Bill Clinton, called the solicitor's office a "choke point control" a mechanism to, among other things, protect the labor secretary's political flanks.
And in Mr. Williamson's view, referring cases carries risks OSHA can ill afford. "You lose control of it," he explained. "You start accusing people of crimes and they get acquitted, you're going to destroy the credibility of the agency."
For his part, Mr. Phillips, the former regional administrator, said, "I had more fights with our solicitors than I did with any employer's attorneys."
Joseph M. Woodward, the top OSHA solicitor at the Labor Department, described his office's work as necessary and prudent.
"These are cases where somebody has died and you're looking at maybe it was even a deliberate violation of the standard, so they're very high-priority cases," Mr. Woodward said. "It's a very serious charge, and you don't want to make it unless you think that it's warranted, and that you can prevail. So you analyze it under that much higher burden of proof."
But the practical result, current and former OSHA officials say, is that to have even a chance of referral, a case must clear an unwritten threshold that has little to do with actual legal requirements. In interviews, OSHA investigators used words like "smoke screen" and "snow job" to describe the legal objections they encounter.
"It can't just be willful, it has to be obscenely willful," said Jeff Brooks, who spent 16 years as an inspector and supervisor before leaving the agency in 2001. "If they didn't purposely with malice seek to kill this person, then you don't prosecute."
What this means, they say, is that prosecutors often never even get to assess cases with compelling evidence of criminal wrongdoing. In 1998, for example, inspectors concluded that willful safety violations had resulted in a worker being crushed to death by a front-end loader in Beaver Falls, Pa. They found that the employer, Venango Environmental, had long known that the machine had defective brakes and steering. An administrative law judge called the case "replete with evidence" that Venango had committed willful safety violations.
The case was not referred to prosecutors.
In interviews, a number of federal prosecutors said they would be happy to take on more of these cases. But Joseph A. Dear, who served as OSHA administrator under President Clinton, emphasized that such eagerness was not universal. "After you do all the work, get the file perfect," he said, "you take it to a U.S. attorney, and they say, `It's a misdemeanor?' "
Human Life vs. Harassed Burro
When Congress established OSHA in 1970, it made it a misdemeanor to cause the death of a worker by willfully violating safety laws. The maximum sentence, six months in jail, is half the maximum for harassing a wild burro on federal lands.
With more than 5,000 deaths on the job each year, safety experts and some members of Congress have long argued that hundreds of lives could be saved if employers faced a credible threat of prosecution.
"A company official who willfully and recklessly violates federal OSHA laws stands a greater chance of winning a state lottery than being criminally charged," said a 1988 Congressional report.
Actually, it overstated the odds for much of the country. During the two decades examined by The Times, in 17 states, the District of Columbia and three territories, there was not a single prosecution for willful violations that killed 423 workers.
There have been repeated efforts to make it a felony to cause a worker's death. But strong opposition from Republicans and many Democrats doomed every effort. Congress did, however, agree in 1984 as part of a broader sentencing reform package to raise the maximum criminal fine to $500,000 from $10,000. And in 1991, it raised civil fines. But the added deterrent appears modest.
From 1982 until 1991, the median fine for a willful violation that killed a worker was $5,800, according to the Times examination. Since 1991, the median has been $30,240.
A much less publicized change has actually eroded any remaining potential for prosecution. Starting in 1990, with a death at a Nebraska meatpacking plant, OSHA began to accede to employer demands that it replace the word "willful" with "unclassified" in citations involving workplace deaths.
Unclassified was a term invented by lawyers who specialize in defending corporations against OSHA. Indeed, the word appears nowhere in the law or regulations governing OSHA. But the agency's field manual permits the "unclassified" designation when an employer is willing to correct unsafe conditions "but wishes to purge himself or herself of the adverse public perception attached to a willful" violation.
Mr. Woodward, the top OSHA solicitor, acknowledged that employers "might occasionally" push for unclassified violations to minimize criminal liability. But he defended the arrangement as a useful compromise.
Companies, he explained, "might do everything in the world that you wanted them to do as far as fixing the problem and making the workplace safer for the workers." But the big sticking point, he said, was "they didn't want to admit willful."
Major corporations, and their lawyers, have been increasingly successful in persuading the agency to eliminate the word "willful," The Times found. The agency has done this even for employers who have repeatedly shown a deliberate disregard for safety laws, resulting in multiple deaths.
The effects of the new policy have been felt by families in several small towns around the country where, over the last decade, refineries and petrochemical plants either owned or co-owned by Shell Oil have blown up because of safety violations.
Each town in turn was consumed by the disasters, the funerals and the cleanup. And every time, safety investigators would show up and dig in, filling thick files with the details of how management had disregarded known hazards. Often, the safety violations were exactly the same from plant to plant. And yet in each case, defense lawyers persuaded regulators to label the most flagrant violations unclassified.
In Belpre, Ohio, an explosion in 1994 killed three workers. OSHA called it a "runaway chemical reaction" and blamed poor training, inadequate maintenance, bad equipment and shoddy oversight.
Anacortes, Wash., a small town on Puget Sound, shook from the explosions the day before Thanksgiving 1998. Necessary maintenance had been put off, investigators found, and pledges of safety improvements had been neglected. Six men died.
Almost three years later, in Delaware City, a crew was working near a tank filled with spent sulfuric acid at the Motiva Refinery, a plant with a long history of leaks, injuries and deaths. Managers had issued the work order despite employees' warnings that the tank was severely corroded and overdue for maintenance, according to court records and OSHA documents. A welding torch ignited leaking vapors, and the explosion flung Jeffrey Davis, 50, into the tank. The acid consumed all but the steel shanks of his boots.
Then last year, a worker was killed at the Shell plant in Geismar, La. OSHA inspectors spent over 12,000 hours documenting a series of preventable safety violations.
In all, Shell and partners paid $4.3 million in OSHA fines for the 11 deaths, sums too small to make a meaningful dent in Shell's earnings. There was no admission of wrongdoing, no referral to prosecutors.
"When you are talking settlement, essentially the rules go away," said Robert C. Gombar, a lawyer for Shell in the Anacortes and Delaware City explosions. Mr. Gombar's firm, McDermott, Will & Emery in Washington, advertises on its Web site that it "pioneered" the use of unclassified violations to avoid "unnecessary complication presented by harmful labels." In the Shell cases, Mr. Gombar said, the company simply persuaded OSHA that it should not cite any willful violations. "They know we'll litigate and we'll win,'` he said.
In a written statement, Shell said that it was treated no differently from any other company and that its "highest priority" was employee safety.
That was not the accountability many of the 11 families had envisioned.
Dyna Fry had learned from the evening news that her husband, Woody, was among those killed in Anacortes. She became consumed with piecing together what happened. She said she yearned for a criminal trial so managers would be forced to "make eye contact with my family."
Other Shell widows and relatives felt the same way.
"We would have worked in McDonald's for the rest of our lives if it meant anyone would go to jail for this," said Nicole M. Granfors, whose father, Ronald J. Granfors, was killed in Anacortes.
In Delaware, the state's congressman and senators wrote to Mr. Henshaw this year and demanded that he account for "OSHA's inexplicable decision" to reduce the violations in Delaware City. OSHA's handling of the case, they wrote, had compounded "the emotional trauma for the family."
In response, OSHA's deputy administrator, R. Davis Layne, wrote that OSHA had simply "exercised its prosecutorial discretion" to settle a contested case. Families, he explained, are not consulted "regarding confidential litigation matters."
But if OSHA saw no potential for a criminal case, Delaware's attorney general, M. Jane Brady, did. In an interview, she recalled the stunned reaction of one Motiva lawyer when she announced her intention to seek charges: "You got to be kidding me."
This summer, Motiva pleaded no contest to criminally negligent homicide and assault, only the second such prosecution in state history. The company was ordered to pay $46,000 in fines, then the maximum under state law, and $250,000 more to a victims fund. Soon after, Delaware changed its law to allow far higher fines.
A Response by the States
Once the dominant regulator of workplace safety, the federal government is falling behind a growing number of states.
At least four states now require safety inspectors to notify prosecutors of deaths caused by safety violations. Eleven states have increased prison terms beyond the six-month federal maximum. In Michigan, California and Arizona, it is now not only a crime to commit safety violations that kill but also to commit safety violations that cause severe injuries.
Again this year, there is talk of toughening the federal law. Three months ago, in an evaluation of OSHA's handling of deaths among immigrant workers, the Labor Department's inspector general recommended that OSHA study the potential deterrent effect of making it a felony to commit willful violations that kill. In Congress, Senator Jon S. Corzine, a New Jersey Democrat, is proposing legislation to increase the maximum sentence to 10 years from six months.
Like past efforts, this one will meet fierce resistance.
"Obviously we're not going to support the expansion of criminal penalties," said Randel K. Johnson, vice president for labor issues at the United States Chamber of Commerce.
At OSHA, Mr. Henshaw recently ordered up some new metrics. After The Times sought comment about its analysis, he asked his agency to conduct its own. The results, his aides said, closely mirror those found by The Times.
They argued, however, that 151 cases could not have been referred to federal prosecutors because the willful violations were of the employer's "general duty" to provide a safe workplace, not of a specific safety standard. Federal law, they said, does not permit referral in such cases. They conceded, though, that such cases could be referred to state and local prosecutors.
Nevertheless, Mr. Henshaw made it clear that he saw no need to change either the law or OSHA's handling of these worst cases of death on the job.
"You have to remember," he said, "that our job is not to rack up the individual statistics that some people like to see. Our job is to correct the workplace."
Remy Gerstein and Robin Stein contributed additional reporting for this article. The data analysis was done by Tom Torok.
Copyright 2003 The New York Times Company
http://www.nytimes.com/2003/12/22/national/22OSHA.html?hp |
|
California Leads In Making Employer Pay For Job Deaths |
by David Barstow
(No verified email address) |
Current rating: 0
22 Dec 2003
|
GUSTINE, Calif. For decades, Portuguese dairy farmers have dominated this wisp of a town on the windswept edge of the San Joaquin Valley. Tough, stubborn and hard-working, their families have prospered in a dusty land where death and injury are as close as a falling hay bale or a thrashing bull.
It is accepted fact here that life is hard and cruel, that risk is everywhere, that death is as random as the summer lightning. When your time comes, words will be spoken over your coffin at Our Lady of Miracles, and then life will push on, as it always has. "We're a `forgive and forget' community," is the way one town elder put it some years back.
This is the place that Roy J. Hubert Jr. has made his battleground.
A tall, bearded man with a taste for bow ties and pink dress shirts, Mr. Hubert is a prosecutor with a mission. He is part of a small team of circuit-riding prosecutors who are crusading to transform the Wild West mores of rural California, a culture they regard as far too tolerant of death on the job.
Their methods are simple, and controversial. With permission from local district attorneys, they bring high-profile criminal cases against employers who kill workers by violating workplace safety laws.
"We're trying to drive a behavioral change within business," Mr. Hubert said. "We're a negative reinforcer."
And so, from his office in Sacramento, 100 miles north of here, Mr. Hubert spends his days scouring reports of workplace deaths from all over California. Late last year, he found precisely what he was looking for on a Gustine dairy farm, a case he believed was outrageous enough to shock a powerful industry and challenge the unwritten moral code in a town named after a little girl who was thrown from her horse and killed.
It happened at the Aguiar-Faria & Sons dairy, a sprawling farm of some 1,700 cows operated by one of Gustine's leading families. Two dairy workers, illegal immigrants from Mexico, drowned in a deep, dark sump hole filled with manure and wastewater. The coroner's report succinctly cataloged their struggles in life and in death: Between them, they had eight pennies and one dime in their pockets; their lungs, however, were packed with bovine excrement.
The people of Gustine saw one more hard, cruel stroke of fate.
Roy Hubert saw a golden opportunity. In January, in a place where dairy is king, he methodically assembled enough evidence to persuade a grand jury in nearby Merced to indict the farm's general manager and its herdsman for involuntary manslaughter and other felonies.
Just like that, both men were looking at nearly five years in prison.
"Stunned" barely begins to describe Gustine's collective response. If criminal prosecutions for worker deaths are rare in the rest of the country, they are unheard of here. And of all the people to charge.
The general manager and part owner, Patrick J. Faria, was chief of a local volunteer firefighting company. His family had long been a prominent sponsor of the annual Our Lady of Miracles festival. The Faria cows have led the festival parade.
"As respected as they come in this community," said William H. Mattos, publisher of The Gustine Press-Standard.
Many were baffled by what they saw as a ludicrous intrusion by the government. How could there be a crime in something like this, something that nobody ever meant to happen?
Especially when Pat Faria had not even been on the farm that day.
And when the herdsman, Alcino Nunes, a soft-spoken father of two who is known as Ralph, had wept openly as his men were fished from the sump hole.
"If they had a clue," said Tony Xavier, a friend of Mr. Faria, "they wouldn't prosecute this case."
Roy Hubert would have been amazed, and disappointed, by any other response.
"These are not evil people," he said. "They are not people who hurt for the sake of hurting. They are not bad people. This is good ol' Pat, good ol' volunteer fireman Pat. He feels terrible. He's devastated. I get a lot of that. Well, good. So are the widow and the mother and the father and sister and brother. Just imagine the incredible despair and anguish as you're drowning in manure."
California at the Vanguard
California stands alone in the United States in its willingness to prosecute employers who kill or harm their workers by violating safety laws.
Long before Congress created the federal Occupational Safety and Health Administration in 1970, California had its own workplace safety standards, and it is one of 21 states that run their own versions of OSHA. Its powerful labor leaders and big-city district attorneys have long been adept at using headline-grabbing workplace deaths to win ever-stronger enforcement powers for the state agency, known as Cal OSHA.
Under federal law, it is a misdemeanor to commit safety violations that kill workers. The maximum penalty is six months in jail and a $500,000 fine. But after a deadly refinery explosion in 1999, California adopted one of the nation's first laws making that same offense a felony. In California, conviction carries a sentence of up to three years in prison and a $1.5 million fine.
Every workplace death or serious injury in California is investigated with an eye to potential prosecution. That work is done by a special Cal OSHA unit, mostly former police officers, whose members are required by law to refer every death to local prosecutors if there is credible evidence of a deliberate safety violation.
Federal law sets a far more exclusive standard: only the most egregious workplace deaths those caused by an employer's "willful" safety violations can be referred to the Justice Department. But as The New York Times found in an eight-month examination of workplace death in the United States, in even those worst cases, the federal OSHA only rarely seeks prosecution.
It is largely the same story in the other states that run their own workplace safety programs. California has prosecuted more employers for safety violations than all of those states combined, The Times found. At the same time, its workplace death rate is substantially lower than that of the rest of the nation.
Still, California's record can be misleading. Most of these prosecutions take place in Los Angeles, San Francisco and a handful of other large cities whose district attorneys have the resources and political will. In dozens of small rural counties, district attorneys have been just as reluctant as the rest of the country to pursue what are often technical, time-consuming and politically sensitive prosecutions.
Roy Hubert and his small band of roving prosecutors are trying to rectify this pattern of uneven enforcement. Called the Circuit Prosecutor Project, they work from the offices of the California District Attorneys Association in Sacramento, under the direction of Gale Filter, a man who combines a prosecutor's cold-eyed pragmatism with a reformer's messianic zeal.
Mr. Filter, a former deputy district attorney in Southern California, joined the project in 1999, soon after it was established to help district attorneys in 34 rural counties enforce environmental laws. He has since expanded to worker safety, and in an interview, he spoke of his desire to stand up for migrant workers, illegal immigrants and others who hold neither power nor influence.
"Who vindicates their rights?" he asked.
But he also described a larger ambition nudging and shaping the legal values of communities that resist thinking of workplace deaths as potential crimes.
With help from Cal OSHA's criminal investigators, the Circuit Prosecutor Project has brought cases against a farmer whose employee was cut to pieces in a corn harvester, a gold miner in the Sierra Nevada whose employee's head was pinched off by an ore chute, and the general manager of a company responsible for a tank explosion in Northern California that killed one worker and left another with third-degree burns over most of his body.
"I like to think we're challenging the system, and I like to think that by doing that we're challenging the mores of society," Mr. Filter said. "I suppose you could say we're opportunists, but I don't mind."
In Roy Hubert, he found a kindred spirit.
Raised in Wisconsin, Mr. Hubert, 63, spent his early career as a labor organizer, a prosecutor and a criminal defense lawyer. He saw opportunity in the burgeoning world of workplace safety law. There were few lawyers in the field, and it matched his interests in law and science. But he also decided that he could not be effective without "really knowing what is going on."
So he earned a master's degree in safety at the University of Southern California, then took a huge pay cut to become a safety manager for several Georgia Pacific millwork plants in Northern California. He described Georgia Pacific as a company that makes an "incredible effort" to protect workers. But he also recalled the feeling when a Georgia Pacific employee was killed at a nearby plant. "You feel like you've failed," he said. "What do you say to this man's widow?"
He later went to work for Littler Mendelson, a large California law firm with a reputation for the scorched-earth defense of major corporations charged with civil OSHA violations. Indeed, Cal OSHA inspectors have a nickname for Littler Mendelson; they call it Hitler Mussolini.
"They're tough, darn good lawyers," Mr. Hubert said, smiling and acknowledging that this entry looks more than a little jarring on his rιsumι.
Still, looking back at "this odyssey of mine," as he calls it, Mr. Hubert cannot help but observe how his past has perfectly prepared him for what he calls "the best job I've ever had in my life."
He has seen safety from all sides, he says. He knows the shortcuts, the ways employers cut corners, the tricks company lawyers use to poke holes in charges of safety violations, the excuses supervisors give for ignoring safety rules.
Yes, he knows he could make more money at Littler Mendelson. But it is more satisfying and fun, he said, "to drive change" in the fifth-largest economy in the world.
"Gale says we're doing God's work," he said. "I'm of a religious persuasion where this is something we probably don't say." But, he added, it comes awfully close.
Mr. Hubert started work at the Circuit Prosecutor Project in December 2002. One case immediately grabbed his attention: Gustine.
Drowned in a Rank Stew
It was not the most promising pickup line.
"I don't own a car, I'm not here legally and I don't earn much money," he said, flashing a smile. "It's up to you."
Angelica Acevedo Hernandez followed Josι Alatorre onto the dance floor.
He was tall, dark and dapper, a 19-year-old welder with a neat goatee and long sideburns who had crossed the border from Mexico in 1998. He sent love letters with uneven purple hearts, and he made her laugh. She was 21, a Gustine High graduate who worked the late shift sorting nuts at an almond factory. They were married at a chapel in Fresno, moved into a quiet apartment in Gustine and hung wedding photographs in their living room. A son followed.
In 2000, Josι Alatorre took a welding job at the Faria dairy, $8.75 an hour and no benefits. It was his first time on a dairy, but he liked the work, liked repairing fences and corrals, liked mixing with the 30 or so other dairy hands. The one thing he did not like was the smell of manure, the way it hung on him after work. He became fanatical about showering as soon as he got home.
Feb. 22, 2001, was their first wedding anniversary.
Angelica Alatorre woke up early that morning and found her husband standing over their son's crib. "He gave me a really big hug, more than usual," she said. He told her he wanted to be this happy the rest of his life. He gave her an anniversary gift, a ring, and left for the farm.
She spent the morning making enchiladas for lunch. Enchiladas were his favorite meal. She set the table, and then stepped outside to get some air and wait for her husband. The dairy was only a few minutes away. It was cold, she remembered, and gray.
She looked to the sky.
In the distance, she saw a Medi-Flight helicopter.
It swept over Gustine, population 5,000; over Gustine High School, where a fine brown dust coats the bleachers at the football field; past the Pusateri Nut Company and the Manuel M. Lopes American Legion Hall, where men in white straw cowboy hats, pressed shirts and big gleaming belt buckles gather at the front door for wedding parties; past the Gustine Club, a dim bar in the center of town where Billie Jean Rocha serves up Portuguese beans, and the regulars play dice on a battered bar.
On the outskirts of town, the helicopter began its descent, passing over trailer homes and tiny bungalows where farmhands live, and over new developments for the commuters pouring over the coastal range from San Francisco, exurbia encroaching on the Old West.
It landed at the Aguiar-Faria dairy, established a half-century ago by the Farias, one of the earliest Portuguese families in Gustine. The first Portuguese arrived from the Azores, rocky islands off the Iberian Peninsula, and worked as farmhands for Dutch dairy producers. Over time, they pieced together their own herds, and then built their own dairies, 20 acres at a time. Families who once worked for the Dutch now employ mostly migrant workers from Mexico, and their farms cover hundreds of acres, with thousands of cows milling under long metal sheds. Some have automated milking pens and cows tagged with computer chips.
What has not changed is the problem of how to handle the huge quantities of manure and urine produced by large dairy operations. At the Aguiar-Faria dairy, the waste was pumped into a lagoon roughly the size of a football field. The manure would settle, and the remaining wastewater would be used to flush the cattle pens over and over.
That morning, though, the men were having difficulty draining the lagoon. They suspected a problem with a pump in a sump hole next to the lagoon. Perhaps it was clogged. A worker named Juan Caballero suggested climbing down inside to see. Ralph Nunes, the herdsman in charge of dairy operations, agreed but told him to take a rope and two more men in case of trouble.
The sump hole, a concrete shaft about four feet wide, was more than 30 feet deep. There was no ladder, just some bracing here and there. At the bottom was a stinking stew of manure, urine, afterbirth and other farm detritus.
Enrique Araisa, 29, clambered down first.
He came up after a few minutes and said he could not see anything wrong.
Josι Alatorre went down to take a look too. He complained that he was not getting enough air. Then he pitched head first into the dark green liquid.
Juan Caballero threw the rope down. He told investigators he could hear splashing and thrashing. He felt the rope tighten. Mr. Araisa scrambled back down to help his friend. But then he, too, collapsed and fell.
There was more thrashing, then nothing.
According to the autopsy reports, hydrogen sulfide and other gases from the waste most likely overcame both men, causing them to fall and drown. They were both long dead by the time the helicopter landed.
Fifteen minutes later, the phone rang at Angelica Alatorre's apartment.
Fate vs. Accountability
Gustine mourned in the traditional way.
Patrick Faria visited the families and paid his condolences.
"He told me he was so sorry," Angelica Alatorre recalled.
He offered to pay for the funerals, including the costs of shipping the bodies back to Mexico. A memorial Mass was held for the two men at Our Lady of Miracles, and then life pushed on.
On a recent night, Pat Faria could be found at the Stevinson Bar and Grill, buying dinner and drinks for a dozen or so friends who had spent the day helping him brand and castrate 150 cattle. It was a festive, relaxed, close-knit group.
"You try to find a bad word about Pat Faria," his friend Tony Xavier said. "Try to find a person that he hasn't done something for."
Mr. Faria is a big man with a bushy head of hair. He sat quietly, his dirt-stained shirt unbuttoned, a great hairy belly poking out unceremoniously. On a small stage, a band called the Neon Knights was setting up.
Mr. Faria, 52, apologized that he could not say much because of the charges against him, but he seemed eager to explain himself. He told of a childhood spent waking at 3 a.m. each day to milk cows. ("You work. Then you go to school. And then you work again.") And he spoke of a deep and abiding ethic at once communal and fiercely independent. When someone needs your help, you give it, he said. If you promise to do something, you do it.
"Your blood," he said, "runs in the veins that your parents give you."
Mr. Xavier and his wife, Diana, jumped into the conversation. Mr. Xavier, lean and handsome, "starts colts" settles them enough so they can be ridden. Mrs. Xavier, blond and striking, is a "cutter" expert at maneuvering cattle with her horse. Both said that they accepted without complaint the possibility that they could be bucked off at any time, or kicked in the head. Death was that close.
"It's just life," Mr. Xavier said.
Dairy farmers are no different. "This is a hazardous job," said Mr. Xavier, who has worked on the Faria dairy. "Nobody told them, `Stick them down a hole. They're going to die.' What those guys did, I've done 10 times. If I had been there that day, I'd have gone down in that hole."
A few years ago, Mr. Xavier's father was killed on another Gustine dairy farm, crushed under a bale of hay. "It was a freak stupid accident," he said. "It's just one of these things. It's like being in the Twin Towers the day those planes hit. Hey, it was his day. That's just how life is."
When Pat Faria spoke of the deaths on his dairy farm, he used similar words.
"This was just one of those bad deals," he said, his voice low and gravelly. "It's a bad deal, any way you look."
The Politics of Prosecution
Roy Hubert and the Circuit Prosecutor Project cannot go forward with a case without the permission of the local district attorney, who is an elected official. The question, then, was whether they could get the go-ahead from Gordon Spencer, a popular and moderate Republican in his fifth term as the district attorney of Merced County, which includes Gustine.
"There's absolutely no way that you keep politics out of these situations," Gale Filter explained.
Mr. Spencer was hardly blind to the political sensitivities of prosecuting a popular dairy farmer from Gustine, especially in a county where dairy farmers as a group exert such influence. During his 27 years as a prosecutor in Merced County, he could recall just one case where an employer had been prosecuted for safety violations that resulted in a worker's death, and that involved a collapsed construction trench, not the county's leading industry.
Still, Mr. Spencer was also past president of the California District Attorneys Association, and he had strongly supported the Circuit Prosecutor Project. As it is, he said in an interview, his 21 prosecutors can barely keep up with 4,300 felony cases each year, and none possess the specialized knowledge needed for complex environmental or workplace safety cases.
"We knew there was kind of a vacuum," he said.
As for the Faria case, he added, choosing his words with care: "I recognize the value of this industry and the importance of it in our community. But it just seemed like there were facts here that made the prosecution warranted."
As if to underscore the urgency of the safety situation, in August 2002 another man died at another Gustine dairy farm under similar circumstances. He was overcome by hydrogen sulfide and drowned while working in a sump pit of a manure lagoon. And there had been other such deaths, in California and in other dairy states, like Michigan, where five dairy workers died in one manure pit in 1989. As Roy Hubert saw it, it was high time that the dairy industry stopped using "fate" as a way of avoiding a problem.
Last January, he presented the Faria case to a Merced County grand jury.
"If you know anything about the agricultural industry, it's that, particularly on dairy operations, cattle manure produces certain lethal gases," he said in his opening statement, according to a transcript. "It produces ammonia. It produces hydrogen sulfide. It produces methane, among other gases. And when you put those gases inside a confined space, it becomes particularly lethal."
California's safety laws, he told the 18 jurors, require employers to take several precautions before allowing workers to enter a confined space like a deep and narrow sump hole with no easy way in or out.
"In order for anyone to even think about going into a confined space," he said, "they need special training and equipment."
What is more, Mr. Hubert said, he had evidence that Pat Faria knew all about those dangers and safety laws. For one thing, he had been taught them as part of his volunteer-firefighter training. Mr. Hubert subpoenaed the man who had trained Mr. Faria in "Confined Space Awareness" in a four-hour class for firefighters in 1999.
The trainer explained how he had taught Mr. Faria the dangers of gases in confined spaces, including how hydrogen sulfide is common in spaces where there is wastewater. The trainer said he also taught Mr. Faria about how no one should enter a confined space without an air test, safety harnesses and respirators.
Mr. Faria had been tested on the class material. In fact, his answer sheet was given to the grand jurors.
He passed, the trainer said.
There was more. Pat Faria's farm had a written safety plan, just as California law required.
"Our safety and health program," the plan stated, "will include all necessary mechanical and physical safeguards, inspections to find and eliminate unsafe working conditions or practices, training for all employees in good safety and health practices, use of personal protective equipment wherever necessary."
The plan named Pat Faria as the farm's "safety coordinator" and made him responsible for training and equipping his employees against safety hazards. It also contained an explicit warning about manure pits: "CAUTION! Beware of dangerous gases and oxygen depletion within these structures," it stated, specifically describing the dangers of hydrogen sulfide.
This, too, went to the grand jury.
In his closing argument, Gale Filter ticked off all the safety procedures that had been ignored. No training. No air testing. No harnesses. Not even a ladder.
"Probably the thing that's most disturbing in all of this," he said, "it's like the MasterCard commercial $10 for a sign; $60 for a harness; couple hundred dollars for a monitoring device. Two men's lives: priceless. It could have all been avoided for a minimum expenditure of money in a business that at times was estimated to be bringing in $85,000 a month."
For Josι Alatorre's widow, the indictment was a balm after months of hurt, a promise of sorts that her husband's death would at least stand as a warning to other dairy farmers.
"What were they thinking?" she asked. "They didn't give anything at all to protect them nothing."
She saw it, too, as a way of evening accounts.
"They say that Faria is going to lose everything. But it is money. How about me? I lost my husband. He lost money. I lost my husband. How do you think I feel when Guillermo asks me about his dad, `Where's Daddy at?' When I say he's not here, he asks can we go to him. I just go into my bedroom, and he watches cartoons with my brother and I go into my bedroom and cry, alone."
Enrique Araisa's mother dissolved into heaving sobs when asked about the son who had died helping Josι Alatorre. But his father, Aberlardo, eyes downcast under the brim of his Oakland Raiders cap, hands worn from picking tomatoes, spoke for them both.
"It still doesn't bring my son back," he said.
Resentment, Then Results
It was not long before Gordon Spencer heard rumblings from powerful dairymen, including some who have been among his political supporters. "They just say, `Well, what's going on with that case?' "
Mr. Spencer said he sought to reassure them that "their D.A. hasn't lost their mind," that this was one of the rare cases that merited prosecution. "We've had phone conversations and we've had meetings to explain the facts," he said. "I don't know that we sold our cases in the end."
Roy Hubert has felt some of the backlash, too. He attends a synagogue in Modesto, 30 miles from Gustine. More than one member, he said, has approached him at services. One asked, "What is wrong with you?" Another, he said, asked why he was "picking on dairy people."
Mr. Spencer had tried to defuse the backlash with some quiet diplomacy. Before the charges were announced, he called Michael L. H. Marsh, chief executive of Western United Dairymen, the largest dairy association in the state.
"I was really shocked," Mr. Marsh said. "I indicated to him that we were of course disappointed because it just sort of compounds the tragedy wham, here's another shoe to drop."
The association convened an emergency board meeting, consulted with lawyers and called other dairy trade groups. "We hadn't heard of anything like this ever in the United States," he said. "The precedent that it would set it's just so extraordinary."
One evening, with the sun setting over the coastal range, an elderly woman emerged from a ranch house wearing a housecoat and pink slippers. It was Madeline Faria, the mother of Pat Faria and the matriarch of the Faria clan. Her house overlooks the lagoon and the sump hole.
"You can't get it out of your mind," she said, squinting into the sun. "I can't even look out there without thinking about those two men drowning."
Nor can she get her mind around the image of her son in a courtroom, facing a possible prison sentence. Her son, she said, is a good and conscientious man. He worked alongside many of his employees, she pointed out. Some of their families lived on their farm. Yet now the Aguiar-Faria dairy has ceased operations, its employees let go and the land leased to another dairy operator.
"I really don't know why he wants to go after us, of all people," Ms. Faria said, referring to Roy Hubert.
But one of her other sons, clearly furious at the attention the indictments have brought to their family, shared one theory.
"He's trying to make a name for himself," he said contemptuously.
It is a widely held sentiment. At the Gustine Club, it is near impossible to find any printable comments about Roy Hubert and his crusade.
But on closer inspection, there are clear indications that something important and rare has occurred here. For all the resentment stirred by the prosecutor with the bow tie, the old moral lines have begun to shift.
On dairy farms across the valley floor, there has been a broad reassessment of safety. Farmers are hiring safety consultants, putting their workers through safety training, installing first aid kits and posting signs.
"It makes you concerned because you think, `Heck, he's a dairyman and I'm a dairyman, too,' " said Mark Ahlem, a young farmer in the valley.
Before the indictment, Mr. Ahlem said, "We were taking some baby steps toward setting up some regular safety meetings."
Since the indictment, though, he has hired a part-time safety director, insisted on frequent safety meetings and established a disciplinary system for safety violations.
Another dairy farmer, Frank Faria no relation to Pat Faria said the indictment was an "unfortunate wake-up call." He has since hired a safety consultant for his dairy operation, and feels much better for it.
The changes are not entirely the doing of this one indictment. Cal OSHA levied $166,650 in civil fines against the Faria dairy for the two deaths, a substantial penalty for almost any farmer. The agency also conducted a sweep of the valley's dairy industry, inspecting more than 160 farms, levying nearly $500,000 in fines and offering free consultations. The Western United Dairymen held several crowded training sessions about the dangers of confined space.
But in conversations with farmers here, it is clear that the prosecution made the deepest impression. When the Cal OSHA inspectors swept into the valley, faxes and phone calls raised the alarm from farm to farm. Some of the farmers "were kind of ornery," said William J. Krycia, the regional Cal OSHA manager. An indictment was not so easy to sidestep.
Perhaps most telling of all, even the Farias and their friends acknowledge that dairy farms have become more conscious of safety as a result of this case.
"Nobody will go down there again in this valley without a spacesuit on," Tony Xavier said of the sump holes.
Mr. Hubert said there was no question that the prosecution had a "profound effect" on Gustine and the rest of the dairy industry in the Central Valley.
"The important thing is the message that when the rules are broken in an egregious manner, we're gonna come calling, `Hello, call your bondsman,' " he said. "This is the deterrent effect."
A Widow Apart
Angelica Alatorre cannot bring herself to wear the ring her husband gave her that anniversary morning. Every so often, though, she drives out to the Faria dairy. She walks across the flat, hard fields to the sump hole by the manure lagoon. A wooden cross stands there now, etched with his name.
She likes to leave sunflowers.
Ms. Alatorre says she feels increasingly isolated in Gustine. The Farias are a popular and important family here. She worries that she is somehow being blamed for the layoffs that have hit the dairy since her husband's death.
"People who know Pat Faria, I think they're mad at me," she said.
She has followed the criminal proceedings, but only from a distance and with great ambivalence. The trial date is in the spring, and she hopes this prosecution scares other dairy farmers enough that no one else has to die the way her husband died. And she has heard that the dairies are safer, that workers are getting more training and equipment.
"They tell me it makes a difference," she said.
Yet she does not see the point of sending Pat Faria to prison. He would do his time, and then what?
"Justice," she said, sighing. "I don't know."
She took another deep breath.
"I just don't wish for anything bad to Faria. But something has to be done."
Robin Stein contributed additional reporting for this article.
Copyright 2003 The New York Times Company |
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