Worker safety lost on appeal
Rosa Frias was working the evening shift at Bimbo Bakeries in South San Francisco when she reached into her bread-making machine to remove a hunk of dried dough.
She screamed as her left hand, and then her lower arm, were sucked into the gears of the Winkler stringline proofer. That night, the limb had to be amputated above the elbow.
The incident drew a $21,750 fine from the California Division of Occupational Safety and Health. But Bimbo paid nothing. It appealed to the Cal-OSHA Appeals Board, which dismissed the case on a technicality: The inspector had retired and Cal-OSHA could not prove that he had had permission to enter the factory.
Since that 2003 accident, five more employees in Bimbo’s California plants have lost fingers or parts of fingers in accidents in which inspectors found similar safety violations. In two of those accidents, the appeals board reduced the fines by thousands of dollars.
“That is mind-boggling,” said Linda Delp, director of UCLA’s Labor Occupational Safety and Health program.
It is not, however, unusual for companies to fare well on appeals. A Times review found that the board has repeatedly reduced or dismissed penalties levied by Cal-OSHA over the last few years, even in situations in which workers have died or been seriously injured. The board’s actions have done more than save companies money. They have undermined Cal-OSHA’s efforts to prevent future accidents, according to labor advocates, inspectors and state documents.
Earlier this year, 47 inspectors and district managers at Cal-OSHA, about a quarter of the staff, signed a letter to the board complaining that Cal-OSHA’s “deterrent effect has been significantly undermined as employers learn they can ‘game the system.’ ”
“It sends a message that all an employer has to do is appeal,” said Jeremy Smith of the California Labor Federation, a group that lobbies on behalf of unions. “Penalties will get whittled down, and the employer can write that off as the cost of doing business.”
Candice Traeger, the chairwoman of the appeals board, acknowledged that during her tenure thousands of cases had been settled, often for cents on the dollar.
It is not because the board favors employers, she said: Rather, the board had to clear a backlog of 2,500 cases, a goal it accomplished earlier this year.
The backlog, which had drawn a federal complaint, was bad for workers, she said, because companies did not have to fix problems while their cases languished.
“Eliminating the backlog . . . was what gave us the flexibility [to] do what we are doing now, which is make and create a better appeals process,” said Traeger, a former Teamster union steward and executive at UPS who was appointed in 2004 by Gov. Arnold Schwarzenegger.
In May, however, the state Senate Committee on Labor and Industrial Relations took Traeger’s board to task over the way it had whittled down its caseload.
Drawing in part from testimony at a Senate oversight hearing, the committee issued a report that cited “drastic” penalty reductions for employers and a flawed hearing process. According to the report, the board scheduled multiple cases to be heard simultaneously by the same judges, often far from where witnesses lived.
“Many argue that this practice is resulting in fines and penalties for real workplace hazards being withdrawn, downgraded and severely reduced in coerced settlements,” the report said.
Traeger countered that many cases have been settled because Cal-OSHA inspectors have not properly issued citations or documented the problems -- not her board’s fault.
“Honestly, nobody likes us,” Traeger said. “I tend to think that means we’re doing something right. We’re balanced, we’re in the middle. We make a determination on what’s right under each case.”
In California, imposing safety fines on an employer can be an elaborate process.
First, a Cal-OSHA inspector cites violations, which can be appealed to an administrative law judge appointed by the appeals board. Then the three-member board can either accept the judge’s decision or change it. Its decisions, in turn, can be appealed in state court. (Any fines collected go to the state, not the employees.)
The current board is made up of industry representative Traeger, public representative Robert Pacheco and labor representative Art Carter. Carter was appointed in March after the labor seat had been vacant for two years.
There is no simple way to assess all 18,000-plus appeals the board has handled since 2005 because the dockets are not readily accessible. But one measure of the board’s record is to look at cases in which the panel has stepped in to review its own judges’ decisions. These “Decisions after Reconsideration” are the board’s way of setting precedent for its judges to follow.
The Times reviewed all 55 decisions the board has issued under Traeger, finding that in about half of them, the panel reduced or dismissed the employer’s fine -- often by thousands of dollars. It also changed the gravity of some findings -- reducing them from “serious” to “general,” which could have implications for a company’s insurance costs and competitiveness.
In 11 of them, the board changed rulings in employers’ favor even before an appeal was filed. Some examples:
* When a worker died in Barstow in 2001 after a hopper with 13 tons of liquid asphalt fell on him, Cal-OSHA fined the company $18,000 for not securing the load -- a penalty upheld by a judge. But the appeals board in 2007 dismissed the case, ruling that Cal-OSHA needed also to show that the design of the equipment was unsafe.
* A judge upheld a citation against a general contractor after a subcontractor’s worker was injured in an accident involving a pressurized pipe. But the board in 2007 dismissed the citation against the contractor even though there had been no appeal, saying the contractor could not be aware of a subcontractor’s “every activity.”
* In a 2006 case, a worker’s arm and fingers were injured when a rock conveyor moved unexpectedly at a quarry. A fine of $12,600 was issued. The appeals board stepped in to say that such fines can be reduced, at the board’s discretion, for reasons that include financial hardship to an employer.
That decision drew a stinging dissent from the then-labor representative on the panel, Marcy Saunders. “A decision that allows a multimillion-dollar employer to be rewarded for committing a violation which results in the fracturing of a worker’s [limb] and . . . potentially allows all ‘financially distressed’ employers to avoid responsibility for safety violations is, at best, irresponsible and, at worst, shameful.”
The appeals board also has let stand judges’ decisions to dismiss cases on narrow technical grounds.
Kevin Scott Noah, 42, was installing rebar on the Golden Gate Bridge when he fell 50 feet to his death in August 2002.
A Cal-OSHA investigator concluded that the contractor had not provided employees with scaffolds and issued three “serious” citations and a $26,000 fine, records show.
The contractor appealed on the grounds that Cal-OSHA had issued the citations to “Shimmick Obayashi,” the name listed on the company’s business cards. The company’s full name was “the Shimmick Construction Company Inc./Obayashi Corp.”
An administrative law judge tossed the case out, writing that Cal-OSHA had failed to determine the company’s legal name.
Although the board let the decision stand, Traeger said, the panel since has begun allowing incorrect names to be amended on citations.
That is little comfort to Noah’s mother, Sandra Noah, who said that her son had three boys who had to grow up without a father. “I just don’t feel it’s right,” Noah said.
Dozens of times in the last two years, the board and its judges have summarily reduced a $5,000 fine that is levied on employers for not reporting workplace accidents within eight hours as required, according to the Senate report.
Traeger told The Times that flexibility is necessary to ensure that injuries get reported, and employers who report late should not be treated the same as those who try to hide accidents.
But Paul Koretz, a Los Angeles city councilman who wrote the reporting law when he was in the Assembly, said, “This is not what was intended. They are obviously trying to get around this legislation.”
Labor advocates say the Bimbo case crystallizes their concerns about a process that they consider stacked against regulators and employees.
After Frias was injured, an inspector found that the machine that had mangled her hand lacked a required guard. But by the time Bimbo’s appeal was heard, in 2007, that inspector had retired and was unavailable.
Cal-OSHA lawyers insisted that the inspector had permission to enter the factory: His report said plant managers were cooperative. What’s more, Bimbo did not offer any evidence that it refused entry. In addition, Frias’ foreman testified that it was standard procedure for employees to put their hands into machines.
Even so, the judge dismissed the case, so Bimbo was not required to fix the problems.
Over the next three years, six more employees lost fingers or parts of fingers, and Cal-OSHA filed citations against Bimbo in five of the accidents.
Cindy Marquez’s case at the Montebello plant was eerily similar to Frias’: She too reached into a machine without the proper guards, records show. The judge ruled that Cal-OSHA had not offered enough proof that an unguarded blade should be a serious violation. The fine was reduced from $22,500 to $5,000. Cal-OSHA has appealed.
A representative of a public relations company retained by Bimbo issued a statement that said, in part, “the use of the appellate process provided under the law did not delay our efforts to correct safety issues that arose at our plants.”
Union officials at the plants confirmed that the company eventually learned from the accidents and has since spent millions of dollars improving safety.
After The Times began asking about the Bimbo cases, Cal-OSHA inspected several of the company’s facilities earlier this month.
“Bimbo has a significant way to go to achieve acceptable workplace safety levels,” said Division Chief Len Welsh through a spokesman.
Traeger, meanwhile, said the board intends to review the judge’s decision in the Frias case.
Six years after her accident, Frias’ workers’ compensation attorney says she is too distraught to talk about it. The attorney, Donald Galine, was incredulous when told of the subsequent injuries at Bimbo plants.
“Five injuries after Rosa?” he said. “Had the state done what they are supposed to, maybe Rosa would not have been saved -- but maybe others would have.”