Unsafe Conditions at Work Can Lead to Criminal Trials

Imagine working in a factory where dense smoke and gases make it hard to see or breathe, toxic dust coats the floor and the heat in some spots approaches 250 degrees--beyond boiling water.

This isn’t a 19th-Century sweatshop but, prosecutors contend, a modern-day plant, the Chicago Magnet Wire Corp., a place so hazardous that the people who ran it were nothing short of criminal.

Five current and former Chicago Magnet executives await trial on charges that they knowingly allowed conditions that gave more than 40 workers nerve and lung disorders and other ailments. The U.S. Supreme Court refused this month to hear their appeal, which challenged the state’s jurisdiction.

The Magnet case is but one of a small but growing number of criminal prosecutions against employers for workplace deaths and injuries. There have been others in California, Wisconsin, Michigan, Indiana, New York, Texas and Illinois--site of the nation’s first corporate murder convictions for an employee’s cyanide poisoning.

“We’re likely to see more criminal prosecutions in this area,” said James Holzhauer, a University of Chicago Law School lecturer.

Some prosecutors say the monetary penalties imposed by the Occupational Safety and Health Administration are set too low to be effective.

“Some people don’t care if they’re fined. They pass that along to the consumer,” said Frank Parkerson, a Cook County prosecutor in the Chicago Magnet case. “People do care about going to jail for 25 years.”

“This is not applying a different standard to employers than we apply to every other citizen,” said Ken Oden, Travis County attorney in Texas. “You can’t drive 120 m.p.h. out of a school zone, run over a child and say you can’t be criminally responsible because you didn’t intend the results.”

Others say that state and county enforcement could lead to a patchwork of safety standards and undercut OSHA, which has referred 55 cases to the Justice Department for criminal prosecution since its formation in 1970. About a quarter of them were settled in pleas or trials, and the Justice Department refused to prosecute the rest, OSHA said.

Workplace prosecutions are “basically unfair to business, and I don’t think it advances workers’ safety and health,” said Stephen Bokat, general counsel for the U.S. Chamber of Commerce.

“Corporate executives have no warning of what’s expected of them,” added Bokat, who filed a brief in the Chicago Magnet case. “It’s really an after-the-fact determination by a prosecutor that something’s not safe.”

A key contention in this debate--that OSHA preempts state and local authorities--reached the U.S. Supreme Court after the Illinois Supreme Court rejected it on the grounds that “state criminal law can provide a valuable and forceful supplement” to worker protection.

Attorneys for Chicago Magnet argued that local prosecutors and juries, who may be “uninformed and . . . unconcerned,” are less qualified to ensure safety than experienced federal officials who set uniform standards.

“Whether criminal laws should be applied is a legislative decision,” attorney Robert Stephenson added. “If (you) want to do something, change the law.”

The Supreme Court, however, let stand the Illinois ruling.

The preemption issue didn’t stop the Los Angeles County district attorney’s office, which has a special unit for such cases.

Four people convicted of involuntary manslaughter have served jail terms, and nearly 30 misdemeanors have been prosecuted, said Fred Macksoud, deputy district attorney.

“These are cases where the employers were just cutting corners more than anything,” he said. “They thought they could get away with it . . . (but) they kill people by cutting corners.”

The average fine is between $11,000 and $30,000, Macksoud added, about five times higher than OSHA’s civil penalties.

Despite some successes, prosecutors filing criminal charges in workplace accident cases are trying “to put new wine in an old bottle,” in the view of Bill Maakestead, associate professor of business law and management at Western Illinois University. Maakestead does not expect a proliferation of such prosecutions.

“These cases tend to be the more expensive, the more time-consuming” and require investigative expertise often lacking in prosecutors’ offices, he said, terming effective OSHA standards a better way to ensure safety.

Even so, he added, “in egregious cases, you need that kind of symbolic legal mechanism to send a strong signal.”

Experts say that message was sent in 1985, when three officials of Film Recovery Systems Inc. of Elk Grove Village were found guilty of murder in the cyanide poisoning of Stefan Golab, a Polish immigrant who worked in the silver recovery plant.

Golab had to work over open vats of cyanide solution but wasn’t informed of the risks or given adequate protective gear (prosecutors said paper masks were provided). He also was refused a transfer after he began suffering from the symptoms of cyanide exposure.

Golab’s fellow workers testified they suffered from headaches, dizziness and vomiting. One said the only time respirators were provided was when an inspector visited the plant.

Judge Ronald Banks called Golab’s death “not accidental, but in fact, murder.” The convictions are being appealed.

In the Chicago Magnet case, the company and five officials are accused of aggravated battery, reckless conduct and conspiracy. Prosecutors said the plant was comparable to “the sweatshops of the mid-19th Century.”

“Abominable” was the way prosecutor Parkerson described conditions at the plant where wire was coated with polyvinyl chloride and other chemicals.

Court papers say that temperatures on the catwalks approached 250 degrees, that the air was smoky, that workers weren’t given adequate masks, gloves or boots and were exposed to the kinds of gases used as weapons during World War I, and that they were hit in the chest, face, head and neck with broken wire fragments.

Prosecutors said that 43 of the workers suffered from nerve disorders, impotence, kidney failure, toxic hepatitis or other injuries. One doctor said the combination of aluminum dust on the floor and another chemical used in the hot plant causes brain damage and is associated with Alzheimer’s disease.

Until 1982, Parkerson said, the plant averaged more than four times as many injuries as it had employees.

OSHA said it last inspected Chicago Magnet in August, 1988, and no citations were issued. Four citations in the previous 12 years, alleging noise violations, failure to inspect respirators and other infractions, had been settled for minimal amounts.

The defense thus far has addressed only preemption, but Bokat’s brief says the state “has never contested the defendants’ claim that working conditions were in compliance with OSHA standards.”

Parkerson said the opportunity to do that hasn’t arisen yet.

“OSHA just can’t deal with people who have no intention of following the law at all,” he said.

“The basic problem is the whole mentality of the business, which deals only in money, profits and losses and accepts the idea implicitly that human health, safety and life is expendable to some degree. We’ve got to change that kind of attitude.”