Death on the Job Is Focus of D.A.’s Investigative Unit

Patrick Byrne is a Los Angeles County district attorney’s investigator in a world where people die gruesomely without a gunshot or a stabbing.

They are buried in poorly dug trenches, electrocuted by power lines, knocked off stock pickers that lack safety railings, cut to pieces in pet-food grinders and trapped without oxygen in confined spaces.

They are people who are killed on the job.

The fate of these men and women, most of them low-wage Latinos who speak little or no English, is usually rationalized as accidental. If employer negligence is suspected, federal or state work-safety agencies investigate and--on occasion--impose civil penalties that rarely exceed a few thousand dollars.

But for the past six years, an unusual arm of the district attorney’s office has attempted to criminalize workplace safety abuses, arming investigators with beepers and immediately dispatching them to the scenes of most on-the-job deaths and serious injuries.

The team of 17 investigators and deputy district attorneys has obtained more than 40 criminal convictions of industrial companies and managers for negligence ranging from poor training to exposure to hazardous chemicals to improper care of high-powered machinery. In five cases, owners or supervisors have been sentenced to jail. Fines of nearly $1 million have been paid. The program is the most ambitious example of a national effort by work-safety advocates to define death on the job as a white-collar crime. About 7,000 to 11,000 American workers are killed at work each year.

A philosophical hallmark of the district attorney’s program is the fact that investigator Byrne makes a point of referring to his cases as incidents, not accidents.

“There aren’t many ‘accidents’ out there,” he says.

Historically, state and local prosecutors have shied away from filing charges in workplace deaths because of a lack of technical expertise, pressure from business interests and conflicting court rulings on whether the 1970 federal Occupational Safety and Health Act preempted state prosecution.

Work-safety activists have argued for years--with little success--that state prosecution of workplace deaths is a necessary deterrent because the federal Occupational Safety and Health Administration rarely takes strong action.

OSHA, which has 800 inspectors to cover the 3.6 million companies under its jurisdiction, has referred only a few dozen cases to the Justice Department for prosecution. Only once in the agency’s history has such a referral resulted in a jail sentence: four months, plus a $7,500 fine, in the death of a South Dakota worker killed in an excavation.

During the Bush Administration, OSHA fines have increased sharply, with numerous multimillion-dollar penalties imposed. However, between 1977 and 1990, OSHA fines against the nation’s 50 largest corporations averaged only $674 per violation, despite a total of 418 worker deaths at those firms, according to a private study released earlier this month.

Twenty-three states, including California, run their own OSHA-approved work-safety agencies, but they are often plagued by a shortage of inspectors. In October, OSHA assumed control over North Carolina’s worker-safety program after a poultry plant fire killed 25 people and injured 56. The 11-year-old plant had never been inspected.

In recent years, prosecutors in Chicago, New York and other major cities have filed criminal charges in high-profile workplace deaths. But the Los Angeles County district attorney’s “rollout” program remains “the only systematic, comprehensive workplace criminal prosecution program in the United States,” according to Joseph Kinney, director of the Chicago-based National Workplace Safety Institute.

The program is part of a division that investigates environmental and work-safety crimes. It is the brainchild of Dist. Atty. Ira Reiner, who has made a career out of using the district attorney’s and city attorney’s offices to conduct high-profile attacks on social ills, such as slumlords, gang graffiti and dumping of toxic waste.

“When somebody dies on the job, that is a violent crime, as much as somebody who is mugged or robbed on the street,” Reiner is fond of saying. “Dead is dead.”

Jose Collazo Alonzo died violently last May.

Alonzo, 54, was working on a sewer repair project in Pacoima when a 10-foot-deep trench collapsed, burying him. He was declared dead seven hours later.

Byrne, who had drawn that week’s assignment as the investigator with 24-hour rollout responsibility, was sent to the scene. After years of prodding, the district attorney’s office has persuaded police, firefighters, coroner’s deputies and the state Division of Occupational Safety and Health (Cal/OSHA) to notify it immediately in all workplace deaths.

Byrne had done standard criminal investigation for eight years before being assigned to this program three years ago. Now, instead of trying to recreate where a bullet was fired, he may find himself grappling with an unfamiliar industry and the state safety standards that govern it.

“I’ve been in more companies where I say to myself, ‘I’ll never figure this out,’ ” he said.

Sending specialized criminal investigators to the scene of a death “makes a huge difference,” said Fran Schreiberg, a former Cal/OSHA official who now works with a nonprofit work-safety organization in Northern California. “Health and safety people don’t know how to put a (criminal) case together. And half the reason that a lot of (district attorneys) don’t want to bring these kinds of cases is that they’ve never done them before. It’s a different ballpark; they couldn’t tell where right field ended.”

What caused Alonzo’s death was disturbingly familiar and clear-cut, prosecutors said: a trench that was not protected from collapse. It was the kind of mistake that explains why the construction industry, which provides 6% of the nation’s jobs, accounts for 20% of on-the-job deaths.

State building codes require any trench deeper than 5 feet to be protected from collapsing by shoring the walls with wood supports or by digging the walls at a slant of less than 90 degrees.

Neither had been done in the Pacoima case, prosecutors said, despite the fact that a city building inspector had seen the violation three days earlier and had warned the general contractor to make the change.

In October, the district attorney’s office charged Alonzo’s boss, Bill Lindon, a sewer and plumbing subcontractor, with manslaughter, only the fifth time prosecutors in the rollout program had filed that severe a charge.

“Mr. Lindon had been warned to use shoring,” Deputy Dist. Atty. William Carter said. “His contract (with the general contractor) specifically called for it . . . That’s what makes these kind of cases so tragic.”

Both Lindon, who faces a preliminary hearing on the charges next month, and his attorney declined to return a reporter’s phone calls. He has been fined $36,085 by Cal/OSHA.

A half-dozen of the 40 convictions obtained by the workplace rollout program have involved cave-ins similar to the one that killed Alonzo. Three of the five cases in which employers were sentenced to jail involved insufficient shoring.

Other convictions that resulted in jail terms involved a contractor who was sentenced to 30 days for allowing workers to work within 6 feet of a high voltage overhead power line, causing the death of one employee; and another contractor who was sentenced to 45 days for ordering a worker into a confined space without doing air testing or providing safety equipment to retrieve the worker from a narrow, 35-foot-deep pit. The employee died from suffocation.

Most work-safety cases filed by prosecutors have resulted in plea bargains. In many of the cases, prosecutors insisted on fines that support job-safety programs. The largest fine was levied last summer when a Paramount metals company, charged with exposing workers to lead poisoning, agreed to pay $200,000 to finance a new occupational lead-screening program for the county Department of Health Services.

While Reiner’s admirers praise the prosecution of such cases, his critics accuse the district attorney, who ran unsuccessfully for state attorney general last year, of showboating.

Prosecutors who attempt to criminalize workplace deaths and injuries frequently do so “to satisfy the political environment, to show that they’re being tough,” said Paul Kamenar, executive legal director of the Washington Legal Foundation, a pro-business research organization.

Too often, defense attorneys say, prosecutors make criminal cases out of matters that are more properly resolved as personal injury lawsuits.

“Accidents do happen,” Kamenar said. “There is no evil heart lurking there, where corporate executives sit down and say, ‘How can we electrocute our work force today?’ ”

The district attorney’s office prosecutes only about a third of the workplace death and injury cases it investigates. In some cases, it must wrestle with legal definitions of accountability.

Late last year, a Municipal Court judge acquitted Mobil Oil Corp., its plant manager and its security director of criminal charges filed in the wake of a 1988 blast at Mobil’s Torrance refinery that killed one employee of a Mobil contractor and seriously injured two other workers.

The judge held that Mobil was not responsible for the activities of the contractor, Cal Cat, which pleaded no contest and paid a $26,500 fine.

Prosecutors like Reiner began developing enthusiasm for prosecuting workplace deaths after a 1985 landmark murder case in an Illinois state court, in which executives of Film Recovery Systems were convicted for failing to warn workers of the hazards of open vats of chemicals.

Appeals court rulings in other states since then have generally established the right of states to prosecute. Nevertheless, the cases are sometimes difficult to win.

In another Illinois case, the Cook County prosecutor’s office spent seven years attempting to convict executives of Chicago Magnet Wire Corp. of subjecting three dozen workers to toxic dust and gases. The Illinois State Supreme Court finally allowed the case to be tried. But a Cook County judge last spring acquitted the executives, saying that while they were “careless housekeepers,” they did not criminally expose workers to dangerous conditions.

New York state prosecutors were stunned a few weeks later when a Brooklyn judge imposed a light sentence on two brothers who were facing up to 15 years in prison for exposing their thermometer factory workers to mercury poisoning. Although about 75 workers at Pymm Thermometer Corp.’s plant suffered damage to their central nervous systems, the judge dismissed the heaviest conviction and ordered the brothers to serve weekends in jail for six months.

Last summer, organized labor and its congressional allies introduced the first proposed wholesale rewriting of the OSHA act. The proposal would allow OSHA to seek federal prosecution of employers who are suspected of “willful” violations leading to serious injuries; currently, criminal prosecution is restricted to cases of death.

The head of OSHA, Gerard F. Scannell, has warned that expanding criminal penalties would weaken voluntary cooperation by businesses.

Earlier this month, a federal appeals court issued a ruling that further restricted Justice Department prosecution of work-safety cases under the OSHA act. The court held that the only people who can be prosecuted for violating the act are “officers” of a corporation--not managers who oversee the workers. The court ruled in favor of the manager of a Milwaukee tunnel project, who contended the federal government did not have the right to prosecute him after three workers died in a tunnel explosion.

Workplace Fatalities, Injuries

The Labor Department has never accurately calculated how many people die on the job. It admits its estimate for 1990--2,900--severely understates the total. Various work-safety organizations estimate the annual total at 7,000 to 11,000, including work-related traffic accidents. The National Center for Health Statistics offers the following breakdown of workplace deaths for 1989, the latest year available, by industry groups:

CATEGORY DEATHS Agriculture 1,300 Mining 300 Construction 2,100 Manufacturing 1,100 Transportation/Utilities 1,400 Wholesale/Retail Trade 1,100 Services 1,500 TOTAL 10,400*

The Labor Department’s survey of injuries and illnesses at private workplaces is regarded as more accurate than its estimate of fatalities. Last month, the department released its 1990 survey, estimating that almost 6.8 million occupational injuries and illnesses occurred last year, with nearly half serious enough to cause workers to lose work time or have their duties restricted. Here is a sampling:

CATEGORY INJURIES/ILLNESSES LOST WORKDAYS in thousands in thousands Agriculture 116 1,124 Mining 60 870 Construction 638 6,625 Manufacturing 2,429 22,282 Transportation 517 7,261 Retail Trade 1,153 8,998 Services 1,263 11,780 TOTAL 6,753* 64,746*

* NOTE: Not all categories shown