Keeping transportation dollars from worker-safety violators, such as Thomas Industrial Coatings

The $109 billion transportation bill passed last week in the Senate has a title that doesn't even mention roads or highways. It's called the ''Moving Ahead for Progress in the 21st Century Act'' (MAP-21) The 74 Senators who voted in favor of the bill (S. 1813), including 22 Republicans, described their support in terms of its potential to save and create nearly 3 million jobs, many in the construction industry.

One provision of the legislation fits especially well with the bill's title, with real potential to make progress on worker safety while we move ahead with transportation projects. Section 1520 of MAP-21 concerns bridge and overpass upgrades and maintenance projects, including the application of industrial coatings and cathodic protections. In determining eligibility to receive the federal funds, the contractor or subcontractor must, among other things,

"demonstrate a history of compliance with applicable requirements of the Occupational Safety and Health Administration..."

It will be up to the Secretary of Labor to develop the criteria to make this assessment. One company that shouldn't be able to able to receive any of these federal funds is Thomas Industrial Coatings, based in Pevely, Missouri.

In a five-month span in 2006, three of this firm's employees were killed on-the-job from fatal falls while performing bridge repair projects. In February 2006, the victim was Jimmy Belfield, 39; in May 2006 the victim was Dan Denzer, 47; and in July 2006 the victim was Andy Wilson, 49. Federal OSHA conducted post-fatality inspections after all three incidents. Agency inspectors found numerous violations of safety standards and classified many of the violations as willful, meaning the employer intentionally violated a regulation or showed plain indifference to it.

Thomas Industrial Coatings contested OSHA's findings and the proposed penalties, and the three cases have been in litigation before the Occupational Safety and Health Review Commission (OSHRC) for five years. Although the company continues to fight some of the citations through the appeals process, reading the administrative law judges' decisions to-date tell me all I need to know about this company's attitude about worker safety.

The first case involved worker Jimmy Belfield, 39, who fell to his death on February 17, 2006 into the Mississippi River, from a scaffolding system being installed under the Jefferson Barracks bridge. Mr. Belfeld's body was recovered from the water two months later.

OSHA issued two serious and one willful violation for failing to have a lifesaving rescue skiff available when employees were working over water. OSHA proposed a $64,400 penalty. The company contested, saying in part, that owner Don Thomas personally met with four businesses situated along the Mississippi River and made arrangements for them to provide rescue boats in case a worker fell from the bridge into the river. Thomas Industrial Coatings (TIC) argued that these arrangements met OSHA's requirement to have a rescue skiff available.

That might be the case had TIC actually made such arrangements. In upholding OSHA's willful classification, the OSHRC judges noted

"...personnel from only two of those businesses confirmed that they actually met with Thomas, and they testified that no guarantees were made that a rescue boat would be available to TIC at all times. The owner of Limited Leasing Company ("LLC") told Thomas that LLC would help out 'in any way possible' if needed, but the owner also admitted that the pilot of his boat would not stay on the boat 'vigilant and ready to respond.' As he put it, 'there were never any guarantees made that [LLC]
would be there . . . every day just for [TIC].'

And the president of Bussen Quarries ("BQ") admitted to speaking with Thomas, but only about permitting TIC to locate a rescue boat at another operator's site or at BQ's sand dock. BQ had no boats of its own to provide TIC with rescue services. Even if we assume that Thomas did, in fact, speak with personnel from the other two businesses he identified at the hearing, J.B. Marine and Louisiana Dock Company ("LDC"), Thomas himself admitted that neither one of these businesses had a boat or rescue service 'manned . . . each and every day,' or available to TIC 'on standby,' in the event of an emergency.

Furthermore, even if TIC's emergency response system called for relying on these nearby businesses, when Jimmy Belfield, 39, fell from the bridge into the Mississippi River, TIC's safety manager never attempted to call these businesses. The judges also provide example after example of TIC management's knowledge of the requirement to have a rescue skiff available and their intentional disregard of that requirement.The OSHRC upheld OSHA's willful classification of the violation, amended the other two citations, and assessed a penalty of $56,000.

Intentionally shirking on emergency response equipment is bad enough, but the judge's revelations in the two other fatality cases involving TIC employees is jaw dropping.

On May 10, 2006, TIC employee Dan Denzer, 47, was preparing to paint the underside of the Lexington Avenue bridge near Kansas City. He was not wearing fall protection and he fell 40 feet to his death from a suspended scaffold platform. Then on July 5, Andy Wilson, 49, was working on a suspended platform under that same Lexington Avenue bridge when he fell to his death. He was also not wearing fall protection.

OSHA conducted post-fatality inspections after these two incidents, issued citations for numerous willful violations, and proposed an $1.848 million penalty in Mr. Denzer's case, and another $514,500 in Mr. Wilson's case. Thomas Industrial Coatings contested these findings and offered employee misconduct as a primary defense. The administrative law judge didn't buy it.

In the October 2010 decision on the two cases, the judge exposed TIC's shallow attention to safety, and how several individuals foretold the subsequent worker deaths.

Shortly after Mr. Denzer's death in May, one worker resigned from TIC because he thought the company 'wanted to do everything too fast and not safe.' Referring to that testimony, the judge wrote that the individual told a co-worker he believed there would be another death on the site. He was right. Andy Wilson, 49, died at the same bridge worksite eight weeks later.

The judge wrote:

"It cannot be emphasized enough that Denzer's death was not the result of an unusual circumstance or a freak accident. His death occurred in precisely the manner any reasonable person would have foreseen."

In upholding OSHA's classification of some of the willful violations, the judge referred to a 2005 incident involving one of TIC's insurance carriers. An environmental engineer with AIG Environmental, Ms. Geri Kountzman, had recommended to TIC that it use third-parties to conduct safety inspections. She believed that TIC's safety manager was overstretched and unable to keep up with safety monitoring. The judge wrote:

"During her 2005 inspection of TIC's site, Kountzman observed missing handrails and toeboards on a 40 foot high scaffold. She saw painters working on the unguarded scaffolds without personal fall arrest systems. No one was making safety inspections at the beginning of the work shift. Kountzman wrote in report for AIG, 'Significant review and management of TIC's Environmental Health and Safety program is needed to begin to effectively and pro-actively manage the risks associated with TIC's operations. TIC's current attitude of 'entrust in our abilities to avoid potential liable exposures' is neither responsible nor effective.' She gave TIC a below average rating in her report.

Based on Kountzman's report, her supervisor sent an email to TIC's insurance broker stating AIG would not be renewing its insurance policy for the firm.

The judge did not mince words in describing TIC's attitude about the AIG incident and other forms of dissent:

"TIC's pattern when it runs afoul of the law is to blame its employees, both living and dead, for their misconduct. If an employee breaks ranks and asserts the company itself was responsible for safety violations, as John Doe did, he is fired and his name is smeared. TIC did not agree with Kountzman's recommendations, so Long [TICs safety manager] proceeded to denigrate her in his deposition testimony. Long referred to her as a "Nazi" because of her insistence on compliance with safety standards. TIC did not heed the advice of Kountzman and AIG. Six months after Kountzman's report, James Belfield fell to his death.

TIC has manifested an ongoing intentional, knowing, and voluntary disregard for the
requirements of the Act. The company ignored recommendations to add safety personnel, either inhouse or third party. Despite abundant evidence that Long was overwhelmed by his responsibilities as TIC's only safety officer, TIC failed to address the problem. None of the employees who failed to tie off was disciplined. ... There exists a company-wide culture of noncompliance with OSHA's fall protection standards, which TIC has neglected to confront."

The judge mentions above "John Doe," a former TIC employee whom the judge found credible. The court refrained from using his name to prevent further "injuring his reputation and perhaps jeopardizing his future employment." John Doe gave damaging testimony against TIC and he was fired. The judge wrote:

"As part of its defense strategy to undermine Doe's credibility, TIC accused Doe of various illegal and unsavory acts. ...Doe met with OSHA representatives on July 26, [2006], and informed them that the crew routinely did not tie off while dismantling the Safespan platform. The next day, TIC fired him. At the time of the hearing, Doe was in the process of suing TIC.

TIC's attack on Doe's credibility at the hearing amounted to character assassination. ...Unquestionably, Doe struggled with personal issues. He testified that during his time with TIC, he had gone through a painful divorce and had been arrested twice for drunk driving. ...His alleged repeated substance abuse, criminal activity, and general boorish behavior were overlooked by TIC's management and co-workers. No one at TIC ever took issue with his conduct until he gave his statement to OSHA on July 26, 2006."

In this decision, the judge upheld eight of OSHA's willful violations in the two cases and assessed a combined penalty of $871,500. He wrote:

"...TIC's intentional disregard of the requirements of the Act is well-established. Despite TIC's history of employees failing to tie off (directly resulting in the deaths of Belfield and Denzer), the company continued its lax monitoring and nonexistent discipline."

He added that TIC's lone safety officer was overstretched.

"TIC knew this, but ignored advice to hire more safety personnel. After Belfield died, TIC considered hiring more safety personnel, but ultimately decided against it."

When I read the judges' rulings in these two cases, involving these three worker fatality incidents, I think most people would agree that Thomas Industrial Coatings is the type of firm that should not be eligible for public funds to support its business. I noticed, however, on the Track the Money site, TIC received more than $7.5 million in federal stimulus dollars in 2009 and 2010, awarded by the Corps of Engineers. It makes me wonder how (or if) the Corps of Engineers evaluated TCI's compliance with worker safety rules.

If MAP-21 passes the House of Representatives in its current form, the Labor Department will have an opportunity to ensure that firms like Thomas Industrial Coatings don't receive funds for certain transportation projects. Such prohibitions because of glaring disregard for worker safety should extend beyond this two-year authorization to other federally-funded projects, and should remain in place until the firm demonstrates a transformation in its attitude about worker safety. That really would fit with the bill's title ''Moving Ahead for Progress in the 21st Century Act."

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