Worker’s Death Is Cited by Both Sides in OSHA Battle
Antonio Bernal was one of thousands of Americans killed every year in industrial accidents that attract little public attention. But Bernal’s death near Pasadena a year ago has come to symbolize the current clash over how to best protect California’s 9.5 million private-sector workers.
Bernal, 35, a veteran jackhammer operator, was crushed beneath a mountain of dirt when the walls of a 36-foot-high trench he was working in collapsed around him in the San Gabriel Mountains above Pasadena on Oct. 1, 1987. Ironically, partisans on both sides of the debate over how well the federal Occupational Safety and Health Administration is protecting the state’s workers point to the Bernal case as evidence that they are right.
The dispute is important not only because it focuses on how well federal OSHA is performing, but because it represents the stormy clash over Proposition 97, an initiative that would compel Gov. George Deukmejian to restore funding for the state’s private-sector worker safety and health program, which he has vetoed on fiscal grounds each of the last two years.
Officials in the West Covina office of federal OSHA learned of Bernal’s death the next morning in a brief news account. They immediately dispatched investigators to the site, as is the agency’s procedure in all industrial fatalities.
Then, in mid-January, OSHA cited Union Engineering Co. Inc., Bernal’s employer, for several violations of federal law and fined the company $15,800. To some people, the agency’s response was prompt and as effective as could be under the circumstances.
But to others, such as Robert M. Holstein Jr., a Riverside attorney who is representing Bernal’s widow, Virginia, in a civil wrongful-death lawsuit, federal OSHA’s response was inadequate. He believes that they should have investigated the site before Bernal died.
And he asserted in an interview that Bernal would not have died if Gov. Deukmejian had not vetoed Cal/OSHA’s funding in June, 1987, creating a hole that the federal government has attempted to plug for the last 16 months. (The state retained responsibility for the health and safety of state and local government workers.)
Holstein’s contention that Bernal died needlessly is based on the fact that Cal/OSHA had a system that required permits for all trenches 5 feet or deeper. The permits served as a mechanism to trigger inspections and, according to state records, dramatically reduced the number of trenching fatalities in California.
Federal OSHA has no such permit system and Union Engineering did not have a trenching permit, according to Leonard Limtiaco, OSHA’s area director in West Covina.
But both Limtiaco and his boss, Frank Strasheim, OSHA’s regional director in San Francisco, are deeply troubled by the contention that Bernal would not have died if Cal/OSHA still existed. Strasheim called the assertion “horrible conjecture.”
Not Enough People
He said the record of the case clearly showed that Union Engineering knew what should have been done to shore up the trench and simply failed to do it. “To have saved him, we or Cal/OSHA (if it had been in existence) would have had to have been there a half-hour before the accident. Regrettably, neither we, nor the state, has enough people to get up to all the sites.”
Strasheim said the Bernal case is one of several that have led to unfair criticism of federal OSHA in the 16 months it has operated in California. In a lengthy interview, he said the agency has maintained the level of job safety that existed in California when he and his troops arrived.
“Our major achievement is protecting workers in the state of California,” said Strasheim, who previously was OSHA’s regional director in Chicago. “We save lives.”
No one will ever know for sure whether Bernal would still be living but for a change in regulatory agencies. Indeed, it is difficult to assess how well federal OSHA has performed in California. There is not even agreement on how its performance should be measured. But there are at least some numerical indications:
- In its first year here, federal OSHA conducted 6,762 inspections, compared to 20,691 done by Cal/OSHA in 1986, its last full year of operation.
- Federal OSHA issued 16,471 citations, of which 5,192 were willful, repeat or serious violations. In Cal/OSHA’s last year, it issued 49,229 citations, of which 6,975 were willful, serious or repeat violations.
- Nearly four times as many of the Cal/OSHA citations (901) were challenged by employers as those issued by federal OSHA (243).
- Federal OSHA proposed $2,027,554 in penalties, compared to $3,554,336 in penalties proposed by Cal/OSHA. (No figures on fines collected were available.)
Norval McDonald, vice president of Ventura-based Beaver Insurance Co. and a professional safety engineer, noted that federal OSHA has just seven field offices in the state, compared to 21 under Cal/OSHA.
Large Territory
As might be expected, those seven field offices are responsible for vast amounts of territory. For example, the Los Angeles office in the mid-Wilshire area is responsible for the northern and western parts of Los Angeles County and Ventura, Santa Barbara and San Luis Obispo counties; the Sacramento office is responsible for 33 counties stretching from Kern in the south to Siskiyou on the Oregon border.
The agency has less than half the number of inspectors as had Cal/OSHA, according to other agency officials.
Strasheim noted that in a cost hold-down, Congress, at the behest of Sen. Alan Cranston (D-Calif.), restricted the number of people the agency could have here pending a vote on Proposition 97. If it is defeated, the agency’s operations are supposed to expand in the state.
Still, he asserted that federal OSHA had achieved comparable results to what Cal/OSHA had done in its last year, despite fewer resources and differing inspection philosophies.
“The state responded more to complaints than we do. Theirs was more reactive; ours more preventive,” Strasheim said. He added the federal agency had issued almost as many major citations as Cal/OSHA had, even though the total number of inspections was considerably less, because “we tend to target places in manufacturing where we find lots of hazards. They tended to respond to smaller places.”
He also said that federal OSHA had taken action against a host of employers endangering their workers, including a Fairfield battery manufacturing company that exposed employees to high levels of lead, contractors who maintained unsafe tunneling conditions for the Los Angeles Metro Rail system and a Redlands farmer who failed to provide workers with proper sanitary facilities.
“We did 480 field sanitation inspections in the fiscal year ended Sept. 30 and 66% of the farmers were not complying with the law. That’s totally unacceptable,” Strasheim said, referring to one of the issues he has given special attention.
Strasheim also launched special inspection programs at construction sites, in hospitals and health care facilities looking for transmission of blood-borne diseases and in high-tech plants in the Silicon Valley.
Critics, however, suggest that the federal agency has not always moved quickly when it did act. For example, they say that in the case of the battery manufacturer, OSHA moved only after persistent prodding by state health officials.
Performance Defended
As a federal civil servant, Strasheim is prohibited by the Hatch Act from participating in a political campaign. But in recent weeks, he has, on several occasions, defended the performance of his agency, which has come under heavy attack from proponents of Proposition 97.
They allege that 35 workers died unnecessarily in the last six months of 1987 because of the weaknesses of federal OSHA. Strasheim retorted that this was a ridiculous assertion. “We’re holding the line.” Last week, it was revealed at a state legislative hearing that occupational injuries and illnesses increased 5.6% from fiscal 1987 to fiscal 1988, the first full year federal OSHA was operating here. Strasheim said it was “possible” some of the increase was attributable to a transition from Cal/OSHA, but he said it was too early to tell for sure.
Christine Baker, chief of the state’s division of labor statistics and research, said a host of variables could have caused the change--including an increase in employment and changes in the nature of work being done in the state.
One of the most knowledgeable experts on workplace safety in California said it was too early to render a definitive assessment.
“I think they’re doing their best,” said Anne Bell, editor of the California OSHA Reporter, a weekly newsletter that has chronicled in great detail workplace safety developments in California for the last 15 years.
“At the beginning, they had trouble. They borrowed (OSHA) people from all over the country who were not familiar with California. Practically everyone is permanent now. They’re doing their best, but the federal program isn’t as good. It doesn’t have quite as many ways to punish employers as the California program did.”
Along the same line, William J. Gainer, associate director of the federal Government Accounting Office’s Human Resources Division, told a congressional hearing that occupational safety and health standards and exposure limits under California rules are more comprehensive, broader in scope and cover more potential work-site hazards than the federal program. He also said California laws permitted more severe sanctions for employers who violate the law.
There also have been instances where federal OSHA officials understated their own authority and heightened negative impressions of the agency.
On Aug. 2, Arnulfo Rosas-Montes lost both his legs when a fertilizer thrashing machine he had entered to clean was accidentally turned on by another employee of Petaluma Mushroom Farms. The Petaluma Fire Department’s emergency rescue team went to the scene. A department official then called the federal OSHA office in Walnut Creek and was informed that the agency would not investigate any incident where there had not been a fatality or at least five injuries.
But Strasheim later ordered the incident investigated and informed the Walnut Creek office that they were wrong about agency policy.
Company Cited
On Oct. 18, federal OSHA announced that it had cited Petaluma Mushroom for violations of federal safety laws in connection with Rosa-Montes’ double amputation. The agency proposed an $11,000 fine.
Such internal conflict has contributed to the widespread perception among union officials that federal OSHA is a weak agency lacking clear policies.
“Most employers know federal OSHA is understaffed and unless someone dies or there’s an incident where three workers are seriously injured, federal OSHA won’t come out,” said Ernie Vega, a health and safety specialist with the Utility Workers Union of America in Los Angeles. Workers “aren’t using it (OSHA) because they don’t expect anything from it.”
Lack of Resources
Strasheim and other federal OSHA officials concede that they have been hampered by a lack of resources.
“We have a no-frills, basic program,” Strasheim said. “I don’t have the kind of staffing to provide the full services the agency has in other parts of the country.”
He also asserted that federal OSHA had not been fully utilized by California workers because “there’s been a degradation of public confidence in this agency as a result of the politics of Proposition 97.”
Strasheim recently announced that the agency plans to conduct 3,000 more inspections in the current fiscal year than it did last year. He also announced that at least one field office would be added and that there would be more inspectors if federal OSHA assumes a permanent role in California.
