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OSHA Struggles When Tower Climbers Die

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Posted on May 24, 2012
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By Ryan Knutson, PBS Frontline, and Liz Day, ProPublica

(Page 2)

“Until there’s an incentive for the carriers to actually improve this they’re probably not going to,” said Catherine Ruckelshaus, legal co-director at the National Employment Law Project, a liberal group that advocates for worker rights. If regulators held carriers accountable for accidents involving contract workers, “they’re going to try to insure that the subcontractors that they engage are legitimate, above-board subcontractors with sophistication and good health and safety training.”

But Ed Reynolds, an industry consultant who was AT&T’s president of network services until 2007, said punishing carriers for tower-climbing accidents would not reduce fatalities.

“You can take the captain of the ship approach,” he said. “You can say that Randall Stephenson is responsible because Randall Stephenson’s the CEO of AT&T. But what impact 2026 would [that] have on the eventual safety of future crews? I think that’s too far to connect.”

 

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The use of subcontractors and temporary employees has been on the rise for several decades as businesses have sought flexibility, relief from union requirements, and savings.

An analysis of labor statistics by the Government Accountability Office found that the number of workers employed by contractors jumped nearly 25 percent from 1995 to 2005 and the total number of “contingent” workers 2013 including contractors, temporary employees, self-employed workers, part-time workers and day laborers 2013 totaled more than 40 million.

The trend toward subcontracting has changed the American workplace in ways unanticipated by the authors of the Occupational Safety and Health Act, said Judson MacLaury, who served as the Department of Labor’s historian from 1972 to 2006.

“Subcontracting was not a factor in the development of the Act,” he said. “It only became an issue for OSHA itself when it became an enforcement problem.”

The shift toward subcontracting has been most noticeable in high-risk industries such as oil and gas, trucking, nuclear waste removal and home-building. Though workplace injuries and deaths have decreased over OSHA’s 40-year lifespan, subcontract workers face greater risks than traditional employees, studies have shown. Contractors were injured or killed in eight of the National Council for Occupational Safety and Health’s 10 worst workplace accidents of 2010. In six of the accidents, no full-time employees died, only contractors.

To sanction companies for safety violations involving subcontractors, OSHA must meet the requirements of what it calls the multi-employer citation policy. It’s a directive spelled out in agency rules, rather than the law.

The policy, which dates to OSHA’s early days, was created with construction and manufacturing in mind, industries with centralized work sites at which the supervisors for the companies that own and operate the sites are more likely to be present.

The tower industry doesn’t function this way. Work is done on thousands of cell sites in remote locations all over the country for short periods of time. Carriers sometimes don’t own towers, leasing space for their antennas instead, and typically don’t have employees on site.

On paper, the multi-employer policy allows OSHA to cite companies that contract out work if they supervise a work site and can correct safety violations or require others to do so.

In some instances, courts and OSHA’s appeals commission have interpreted the policy more narrowly, ruling that if companies didn’t expose their own employees to danger or didn’t have specific knowledge of the conditions that caused harm, OSHA could not impose sanctions.

Business organizations, such as the National Association of Home Builders, have argued against penalties based on the multi-employer policy, contending that employers should be responsible only for their own employees, not those hired by subcontractors.

OSHA sometimes wins such battles. In 2009, for example, the 8th U.S. Circuit Court of Appeals in Missouri upheld the agency’s citation against a general contractor for failing to ensure that a subcontractor used proper safety gear on a scaffold. But these victories often have been costly and time-consuming, playing out over years.

Some of the agency’s leaders have been skeptical about pursuing cases under the multi-employer policy. Charles Jeffress, OSHA’s top administrator from 1997 to 2001, said companies whose employees are not on site should not be held accountable for hazards created by subcontractors.

“You can’t sit in an office building thousands of miles away and direct the work,” he said.

Philip Colleran, who worked as a senior compliance officer at OSHA in Illinois for 17 years before leaving to start a private consulting firm in 1990, said the agency has become reluctant to initiate multi-employer cases without what it considers overwhelming evidence.

“The sad truth is the agency’s lawyers are still reluctant to prosecute even clear-cut controlling entities, such as general contractors,” he wrote in an email, “let alone nebulous relationships such as the type of 2018subcontractors’ you’re addressing.”

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