Déjà Vu all Over Again: OSHA's Inability to Stop Serial Violators on Display in New Hampshire Foundry
Sidney Shapiro
Dec. 15, 2009
The Concord Monitor has identified a New Hampshire factory (Franklin Non-Ferrous Foundry) that has been the subject of previous OSHA investigations and fines, yet continues to expose its workers to dangerous conditions. OSHA’s most recent fine, $250,000, came after the agency found that a worker had high levels of lead in his blood. The newspaper obtained OSHA documents that revealed a pattern of violations by the company. The New Hampshire case is a troubling reminder of how weak OSHA is -- and of how that weakness puts many workers at danger in this country today.
OSHA has cited the foundry for 57 violations over the last four years, including 25 “serious” violations, which means the violation has potential to kill or seriously harm an employee. The violations included exit doors that could not be opened from the inside without keys or tools. OSHA inspectors also found that employees who were pouring molten metal were protected by heat shields with "large holes" in the front, while other workers wore no protective clothing even though they were working only inches from materials bubbling at 2,300 degrees. The foundry’s employees were exposed to airborne concentrations of copper dust nearly six times higher than OSHA regulations permit. And the inspectors observed an employee climb on the top railing of a series of catwalks along the factory ceiling to look at damaged machinery below without any fall protection equipment, another OSHA violation.
In 2006, OSHA fined the business $387,000 in penalties, and after a follow up investigation in 2007, it levied another $17,000 in penalties. The owner of the foundry has contested the latest fine and expressed skepticism about the dangers posed by lead. OSHA refused to divulge to the newspaper whether the foundry paid any of the earlier fines, and if so, what amount. OSHA, however, often settles cases for pennies on the dollar.
The New Hampshire foundry is a small business, unlike McWane, Inc., a large company with a similar disregard for its employees. In January 2003, the New York Times and Frontline publicized the results of their investigation of McWane, Inc., which OSHA had cited for more than 400 safety violations in 1995-2003, a time during which employees had suffered 4,600 injuries and nine workers were killed. After the media expose, federal prosecutors brought serious charges against McWane, which ended up paying millions of dollars in fines and had several managers found guilty of multiple felonies and sentenced to prison. The criminal charges, however, were brought under the environmental laws, because the OSHA Act has weak criminal penalties. The maximum fine for the death of a worker is six months in jail, and there are no criminal penalties for activities that seriously harm workers but do not kill them.
When questioned by the Monitor, an OSHA spokesperson said that, besides fines, there was little OSHA could do to force an employer into compliance. Over the years, however, OSHA has failed to use its penalty structure to promote maximum compliance, instead settling most cases for small amounts. In 2007, the average penalty for a fatality caused by a serious breach of federal OSHA standards was $2,343 - less than the price of one of the "best" seats for a baseball game in the new Yankee Stadium. As noted, we don’t know whether OSHA engaged in its usual behavior concerning the New Hampshire foundry, but the episode nevertheless reminds us that something is amiss at OSHA.
OSHA normally settles cases for small amounts because it lacks the resources to litigate very many enforcement cases, forcing it to settle most of them on terms favorable to employers. Further, the agency must litigate its enforcement penalties at the Occupational Safety and Health Review Commission (OSHRC), whose commissioners have been hostile to OSHA’s efforts, primarily because Republican presidents have tended to appoint commissioners ideologically opposed to OSHA’s efforts.
These factors do not justify giving employers who consistently flout OSHA regulations a break. Ultimately, however, OSHA is hamstrung by the weak penalty structure Congress has established. Congress needs to up the amount of fines that OSHA can levy, and more importantly, it needs to authorize criminal penalties for recalcitrant employers. If fines do not get their attention, perhaps some jail time will.
