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COOKING THE BOOKS: Underreporting Worker Injuries and Illnesses on the San Francisco Bay Bridge Project
Confined Space has often covered stories of chronic undercounting of workplace injuries and illnesses by employers, as well as violations OSHA's recordkeeping rules. More specifically we've covered the systematic falsification of injuries and illness numbers by KFM - Kiewit Pacific/FCI Constructors/Manson Construction, A Joint Venture, on the project to rebuild the eastern span of the San Francisco Bay Bridge. The consortium had never missed a chance to brag about worksite injury and illness rates that they claimed were one-fourth to one-third those of other California bridge builders -- until Cal/OSHA and the Tribune documented the real story based on interviews with two dozen Bay Bridge workers - that KFM had "cooked the books" on injury rates.
But now, thanks to KFM worker interviews from Cal/OSHA's casefiles, we're able to present for the first time a series of posts that paint a detailed and vivid picture of exactly how KFM used a sophisticated combination of strategies to "cook the books" of worker injuries and illnesses.
KFM's cookbook includes:
- cash incentives to workers and supervisors who do not report injuries;
- reprisals and threats of reprisals against those employees who do report injuries;
- selection and use of employer-friendly occupational health clinics and workers comp insurance administrators;
- strict limits on the activities of contract industrial hygiene consultants; and, ultimately,
- a secretive management committee which decides whether reported injuries and illnesses are legitimate and recordable.
But the problem is much bigger than KFM. The consortium's deliberate under-recording of workplace injures and illnesses is part of a growing national problem that has resulted in repeated "willful" citations by Federal OSHA and has important adverse impacts on hazard prevention by employers, resource allocation by government agencies, and the accuracy of safety in the nation's workplaces. The KFM story also presents a searing indictment of controversial "behavioral safety" programs which punish workers for injuries and reward workers for not reporting injuries or unsafe conditions.
Since 2004, the Oakland Tribune has run an extended, award-winning series of articles about safety and production problems at the bridge, and has posted the Cal/OSHA citations and key witness testimony on its website. In August 2006, the newspaper ran another series of articles on the specifics of KFM's injury reporting suppression program.
In June 2006, Cal/OSHA issued "willful" citations against KFM for deliberately failing to record at least 13 worker injuries at the bridge, as well as two more citations for failing to investigate reported accidents and failing to record injuries within the time period set by law. The citations followed a report by the California Bureau of State Audits that accused the agency of not having procedures necessary to verify the accuracy of injury and illness reporting, and noting that the Cal/OSHA's compliance assistance/partnership approach with the company made it even more difficult to uncover unsafe conditions and faulty reporting.
KFM was accused of violating laws that require employers to record on an "OSHA Log 300" all injuries and illnesses on the job that result in death, days away from work, restricted work, medical treatment beyond first aid, or loss of consciousness.
Cal/OSHA considered KFM's violations "willful" because evidence showed
that the employer committed an intentional and knowing (as contrasted with inadvertent) violation and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law.KFM had originally claimed that it had zero lost work days and zero restricted work days for more than 1 million man-hours of work at the Bay Bridge in 2004. KFM's recorded injury rate was 1.47 injuries per 100 workers, as compared to another major bridge project in the San Francisco Bay, which had a rate of 12.43 injuries per 100 workers. But some things in life are just "too good to be true."
As a result of two state investigations in 2005 - one by Cal/OSHA and one by the Bureau of State Audits (BSA) - KFM revised its 2004 Log 300 to add one "newly recognized" case with 14 days away from work. However, the consortium claims the 13 cases identified by Cal/OSHA were either fraudulent or exempted under Log 300 regulations.
Cooking the Books: The Carrot
The centerpiece of KFM's strategy to suppress reporting of worker injury and illnesses is its "Safety Incentive Programs" designed to
to motivate employee and supervisory safety performance to achieve zero injury results in an environmental that sustains teamwork, open communication, and total involvement.Monetary incentives are given to every level of employee - hourly, foremen, supervisors and managers - for meeting quality and completion timeline goals, but only if no Log 300 recordable injuries are reported. Any reported injury or illness that is "Log 300 recordable" loses the worker, his or her crew, the foreman, other supervisors and managers the monetary bonus.
The monetary incentives for workers as a crew and for foremen are substantial:
General foreman, superintendents, craft superintendents, job superintendents and project managers also received monetary awards and "merit cards" essential for salary increases and individual career advancement. The time periods for these awards were determined by the collective number of hours worked by all crews under the salaried employee's supervision, ranging from 5,000 to 100,000 hours of work.
- The "Pile Head Welding Incentive Plan" provided the individual crew members with $200, $400 or $600 in bonuses over every 26-36 day period - only if there is "no recordable accident" - and crew foremen "receive double the award amount." The crews consisted of 8 employees - 1 foremen and 7 welders and helpers;
- The "Pier 10W - 7 W Access Casing Incentive Plan" provided - only with "no reportable/recordable accident" - "possible incentive for entire crew achieving target is $3,150 ($5,544 total pay off with gross up) with maximum award incentive for entire crew can be $6,750 ($11,880 total pay with gross up)." The crews consisted of 6 employees - 1 foreman, 4 carpenters and 1 laborer);
- The "Pier 9W-7W Pier Column Formwork Incentive Plan" provided - only with "no reportable/recordable accidents" - "maximum award incentive for entire crew is $6,400 ($11,264 total payoff with gross up)." The crews consisted of 13 employees - 3 foremen, 8 carpenters and 2 laborers;
- The "Pier 10W - 7W Misc. Metal & Set Casing Pre-Cast Slab Incentive Plan" provided - only with "no reportable/recordable accidents" - "maximum award incentive for entire crew is $3063." The crews consisted of 2 employees - 1 foreman and 1 ironworker journeyman;
- The "Skyway Concrete Placement Incentive Plan," whose "approximate maximum award for entire crew is $37,560," clearly stated "any reportable accidents will eliminate the entire crew for the current award period. Any recordable accidents will eliminate the entire crew for a minimum of two award periods and up to elimination from the entire program as determined by the Job Superintendent." The crews consisted of 11 employees - 2 foremen, 7 laborers and 2 masons.
As always, the awards were dependent on no injuries or illnesses being reported. Section 11 of KFM's 2004 Safety Plan on the "Recognition and Rewards Program" stated:
Employees will forfeit their recognition/reward on a crew-by-crew basis for any OSHA recordable injury or when directly involved in a general liability accident. When an employee suffers a restricted duty or lost-time accident case, the entire job will forfeit the recognition/reward for the current period."(emphasis added)Rewards for supervisors and managers, depending on the number of accident-free hours worked, ranged from a "Merit Care and $100" to a "Merit Card and $3,000," with a variety of gifts along the way including an "engraved billfold," "engraved watch," "trip not to exceed $2,500," and a "gift decided by the District Safety Manager."
Welders told Cal/OSHA that during the first six months of the incentive plan, from November 2003 to June 2004, they received their monthly $200-$600 incentive awards in the form of crisp, new $100 bills tucked neatly inside their pay envelopes.
But any "OSHA recordable injury" resulted in everyone up the chain losing their cash incentive, and perhaps not just for the current bonus period but for future award periods as well. Thus the cash incentive plan was self-policing - no worker wanted to lose their own cash bonus, or make their foreman, general foreman, superintendents and project managers lose their bonus money.
Pile excavation crew foreman Arne Paulson told Cal/OSHA:
It was known by everyone not to report any injuries because that would mean no BBQ, no tool prizes, no tool box prizes. Everyone would know who 'lost' the prizes for the crew, so everyone was terrified to report anything.Welder David Dixon reported to Cal/OSHA that supervisors "downplayed reporting of accidents. If you reported an injury, 'you are hurting the team' or 'you are screwing the crew.'"
Another welder, Mario Armani, said the cash
bonus program keeps guys away from reporting accidents, many injuries are not reported, many employees would clean out their own eyes [of metal slivers from grinding] or have their co-workers do it.According to the Cal/OSHA case file, an injured welder, David Laniohan, did not report his injury on the daily time card so as to stay in the good graces of the foreman,
because no foreman wants to have a 'yes' answer [time card asks whether an injury occurred that day]. The foremen get bonuses for no injuries. There is a general pressure not to say 'yes'Paulson told Cal/OSHA that as a foreman,
whenever I tried to report an injury in the crew, I could not get anyone (superintendent or manager) to sign the form...salaried employees received bonuses for production, which also include safety goals, so any reported injuries mean no bonus. Paulson himself was injured on the job, but for months was literally carried by co-workers onto the tug boats going out to the work barges to do paperwork in a make-shift office so that there was no "lost time" or "restricted work" duties to record. "The whole reason they were carrying me out to the barge was to avoid putting my injury on the Log 300," Paulson told Cal/OSHA.
Cooking the Books: The Stick
When the financial incentives were not enough to suppress reports of recordable injuries and illnesses, Bay Bridge threats of discipline, suspensions and layoffs were used by supervisors to maintain an accident-free record, according to statements given y workers' to Cal/OSHA.
KFM's formal policy states that workers are required to report each and every injury, from simple first aid cases to recordable injuries and illnesses needing medical treatment. Failure to report any workplace injury or illness could be the basis for disciplinary action against workers.
As Daniel Otto, a fit-up and welding crew foreman, told Cal/OSHA, the KFM "safety program was organized to look good on paper, but actual practice on the job was different." Combined with the incentive system, workers were left feeling as if "they got you coming or going - if you report, then everyone loses the money; if you don't report, then they can use that against you in a disciplinary action," according to the Cal/OSHA file.
Mechanic Keith Bates told Cal/OSHA:
Everyone was on 'pins and needles' all the time because everyone wanted to keep their jobs, but it was clear that if any injury or illness was reported, there would be adverse consequences...KFM discouraged reporting of accidents because it threatened crew cash bonuses and crew barbeques. Workers were individually warned by foremen and superintendents, but we were never threatened at the mass safety meetings. Employees who made safety suggestions or expressed concerns were 'black-balled' by supervisors...definitely a disconnect between the stated policy and what really happened on the job.Otto told Cal/OSHA he was
personally involved with superintendents [Dave Polette] and foremen [Doug Silverwood, Jim Belcher and Tim Peeler] who discouraged the reporting of injuries. This happened in my own case, and with Fernando Rivera, Francisco Aguirre, Dave Dixon and Chris Hallstrom.Otto said that superintendents and foremen "conducted reprisals against employees in the form of verbal humiliation in public," and also in "laying off injured workers, such as Fernando Rivera, Dave Dixon and Chris Hallstrom, to send a message to the crew."
Welder Chris Hallstrom reported to Cal/OSHA that
Randolph got hurt when he was struck on the head, and he insisted on getting a medical evaluation [which means an injury report is filed]. [Foreman] Jim Belcher told everyone on the boat going out to the pile - welding and fit-up crews together, more than 30 workers - "here's the guy who lost you the incentive."Later on, when Hallstrom wanted to get a medical evaluation of his swollen knee, "Jim Belcher said to me, 'do you want to be another Randolph?"
Jim Belcher was then the welding foreman and Belcher hounded Randolph after his injury. He [Randolph] got fired for something Belcher made up. It was made clear that this would happen to everyone,
David Roundtree, a welder who left KFM on his own initiative in June 2004, told Cal/OSHA that
the incentive plan works against reporting injuries. Everybody trying to keep their jobs - don't make waves. When you reported injuries, they treated you as a criminal...KFM created an atmosphere where you didn't want to report. They called everyone 'whiners' and 'crybabies'...There was self-generated pressure not to report, especially among Latino workers. Almost no Latinos ever reported any of the injuries they had.Francisco Aguirre, an apprentice welder at the bridge, confirmed the harsh atmosphere in the KFM work site to Cal/OSHA:
There was a lot of pressure from supervisors (Dave Polette, Jim Belcher and Tim Peeler) not to report injuries because they will lose safety cards for themselves and cash bonuses for the crew...The pressure from above was very intensive - we had to finish by some time and no accidents.An investigator for the Bureau of State Audits wrote up his interview notes with welder Mario Armani as follows:
he [Armani] said that he raised his concerns but was told to 'find another job.' One time, he was boxed in by KFM management, after he had raised concerns, and was told that he had better weld very fast or they would fire him for working too slow." The BSA report issued in February 2006 noted
of 139 current and former KFM employees who responded to our survey, 52 indicated that they had been injured while working on the Skyway project, and 24 of these injured employees indicated they felt pressure to not report their injury. Although we did not specifically ask about safety incentives in our survey, five workers mentioned them as a reason why injuries were not reported. However, a more frequent concern, expressed by 14 of the workers, was that they believed they would lose their jobs or face lesser forms of retaliation if they reported an injury.Cooking the Books: The Doctors
Another key to maintaining miraculously low injury and illness rates at the Bay Bridge was careful management of the "work status reports" received by KFM from its contract first-aid personnel on site, from the three occupational health clinics under contract to diagnose and treat injured workers, and from the third party administrator of its self-insured workers compensation insurance.
Treatment for injuries that only require "first aid" is not recordable, but lost or restricted workdays are. Work status reports are a key trigger for recording "lost work days" and/or "restricted work days" on the OSHA Log 300. KFM's safety staff spent a lot of time, according to Cal/OSHA's investigative file, riding herd on the diagnosis and treatment of injured workers to ensure that they didn't turn into "lost" or "restricted" work days.
Former Field Safety Manager Winston Peart, who worked for KFM between April 2003 and March 2004, gave a written statement to BSA investigators in the fall of 2005.
KFM had an on-site first aid office in which contract nurses who were on call would treat injured workers. It was my experience with KFM, and with other companies that I have worked for, that these nurses are aware of the criteria defining what is a first aid and what is "medical treatment beyond first aid." To help an injured patient, these nurses sometimes conduct "medical treatment beyond first aid." However, they know to document the procedures as first aid to avoid making the injury recordable...I saw numerous embedded object eye injuries, and frequently these injuries required medical attention beyond first aid. However, I do not believe that all of these injuries were reported on KFM's 300 logs...Welder Chris Hallstrom told Cal/OSHA that when he
It is my understanding that Mr. Hughes [KFM Safety Director Robert Hughes] would accompany the victim to the clinic because Mr. Hughes knew the doctors there and had some degree of influence in persuading them to classify injuries in a way as to not make them either reportable or recordable, depending on the severity of the injury....In essence, the clinic is selected based on its willingness to classify most injuries as return-to-work injuries. From my conversations and experience with Robert Hughes, I believe that he selected the Skyway Project's medical clinic based on this criteria.
was being seen by Dr. Stephen Nord at Premier Care Medical Group in Pleasanton, he was always accompanied into the exam room by safety managers Rob Hughes or Chuck Chartrey. "The safety guy would bargain with Dr. Nord. They would bargain over the wording of the work status report and the job restrictions." Hallstrom asked to see Nord alone, "but Chuck Chartrey would not permit it. The safety people would sit there saying "no problem, he's on [unofficial] light duty" so that the doctor would not write up any official days of RWD [restricted work days] on the work status reports.Employer knowledge of the diagnosis and work status is a key determinant of any Log 300 entry. Under California's workers compensation law, the employer has the right to "designate" the physician treating work-related injuries and illness for the first 30 days of treatment, unless the worker "pre-designates" a physician prior to any accident. The employer's designated doctor keeps control of injury treatment and work status reports after the first 30 days, unless workers formally ask to be treated by another physician.
But Foreman Daniel Otto told Cal/OSHA that injured workers were "extremely discouraged to go to their own doctor." And it appears the discouragement worked: the Cal/OSHA case file indicates that not one injured worker had pre-designated a non-KFM doctor.
Specialty Risk Services (SRS) is the third party administrator of KFM's worker compensation self-insured insurance policy. When KFM workers did not pre-designate their own doctor for the first 30 days of treatment, and if the workers did not ask to transfer their treatment after 30 days to their own physicians, then SRS would only pass on to KFM the work status reports of KFM's "designated" doctors, as allowed by law.
The Cal/OSHA case file indicates that SRS acted as a "knowledge screen," blocking the transfer of information from non-KFM physicians to KFM managers responsible for Log 300 entries. Even when workers decided to go to their own doctors after the first 30 days of treatment, it appears that SRS did not transmit the non-KFM physicians' work status reports to KFM. If KFM didn't see the reports, then they could not be the basis for any lost or restricted work day entries on the Log 300.
Foreman Paulson told Cal/OSHA that after his knee injury at work, he was sent to a KFM-designated clinic, U.S. Health Works,
who prescribed him aspirin and sent him back to work. [Paulson] then went to Kaiser immediately after work, where the MD prescribed crutches and RWD [restricted work days] for 14 days as well as Vicodin. [Paulson] "could not report [his visit to Kaiser] to KFM or I would have been fired or laid off right away."At Paulson's next visit to U.S. Health Works, the doctor there told him he did not need crutches and sent him back to work with a "return to full duty" work status, which would not trigger a Log 300 entry, according to the Cal/OSHA files.
Carpenter Steve Swanson, who suffered a hernia working at the Bay Bridge, said
KFM is so paranoid about injuries - 'do not go to your own doctor, go to our doctor.' They are set up with their own doctor - he works for them - it's an insurance thing to keep down workers comp cases.Swanson's hernia was declared to be "non-industrial" by the physician at U.S. Health Works in Berkeley, so the injury was not entered onto the Log 300, and Swanson did not qualify for workers comp medical coverage, according to the Cal/OSHA files.
Welder Venture Ochoa told Cal/OSHA that KFM
safety staffer Chad Hoople threatened to "send me home for telling On-Site [contract first aid provider at the worksite] that [he] should be sent to a doctor at the clinic," [even though] KFM doesn't want any records of injury and they doesn't have a real doctor....The company doctor is on KFM's side; he doesn't care about the workers.Cooking the Books: The Industrial Hygiene Consultant
A June 2004 Oakland Tribune report showed that KFM had knowingly exposed workers to welding particulate and fumes, including manganese, for more than a year, in excess of Cal-OSHA standards. Exposures caused pneumonia-like conditions that workers nicknamed the KFM flu. Cal-OSHA records show prime contractor KFM Joint Venture didn't tell the workers about the overexposures, or require respirators or address the problem.
According to Rosemarie Bowler, a lecturer at San Francisco State University who researches the toxic effects of manganese on the brain, "They had increased respiratory problems, and their working memory was impacted from the manganese." Yet KFM never recorded the illnesses on their Log 300 forms and Cal/OSHA declined to cite the contractor for ignoring the claims of as many as 48 sick welders.
How did they get away with it?
Log 300 recording depends on employer knowledge of workplace illness. So, KFM's "Sergeant Schultz" strategy was deliberately limit information it received that explicitly pointed to employee exposure to potentially illness-causing chemical exposures so that responsible officials would know as little as possible.
In 2002, KFM hired the Salt Lake City-based firm IHI Environmental, which has a Bay Area office, to conduct industrial hygiene monitoring and provide technical assistance at the Bay Bridge.
IHI President Don Marano told Cal/OSHA that his firm was "hired for specific tasks, to provide specific information, we had no general responsibility...We gave KFM the data - it was their responsibility to interpret and act on it." During the 2002-2004 period, Marano told Cal/OSHA, "early on we did give recommendations. Some were followed, some were not or only partially implemented."
In June 2004, however, the reporting protocol for IHI changed as KFM had been sued by welders claiming welding-related illnesses from their work at the Bridge. "We did the same work as before, but reported on the results without interpretation and recommendations by IHI," Marano told Cal/OSHA. "KFM did not want anything other than raw results data."
Cal/OSHA's investigative files note that "IHI Environmental tables indicate that between March 2003 and June 2004 IHI personnel took 111 personal samples for welding fume exposure and 46 personal samples for fibers on welders. 23 of the 111 samples (21%) showed exposures above the Cal/OSHA PEL [permissible exposure limit] of 0.2 mg/m3 while another 6 samples showed exposures over the 10-hour day "adjusted" PEL of 0.16 mg/m3 (taken together this means 26% of personal sampling documented over-exposures). 16 of the exposures above the Cal/OSHA PEL occurred between March and June 2004.
Former Field Safety Manager Peart told BSA in his written statement
I was aware that an industrial hygiene company had conducted air samples in the confined spaces in which the welders worked. I asked Mr. Hughes about the results and he said that they were within acceptable parameters. When I pointed out the workers were still getting sick, he said the workers were just 'crybabies.' I asked if the workers would be allowed to see the results and he said that they wouldn't know how to interpret them.Actually it was worker complaints about welding fume exposures that generated the first Oakland Tribune articles, which sparked the BSA audit of Cal/OSHA's performance at the Bay Bridge (resulting in strong criticism of Cal/OSHA for mishandling three worker complaints). This information ended up as the basis of multiple lawsuits against KFM and IHI Environmental by the welders.
In fact, it wasn't until after almost a year of continuous welding fume exposures to welders who were forced to take numerous personal sick days due to that the "KFM flu" that KFM finally installed an effective ventilation system, according to the Cal/OSHA case file.
Peart told Cal/OSHA that employees were "afraid for their jobs" if they called in sick with work-related illnesses, instead they would "call in sick for a home-related illness, such as a 'cold picked up from a child'" rather than from welding fumes. The former safety staffer said "things would have to become a serious issue (such as welding fume exposures) before they were addressed" by KFM.
Peart reported to Cal/OSHA that "the problem of welding exposures was definitely not resolved in April 2004, when I left. The welders were still complaining about it and they didn't have an effective ventilation system."
Despite the illness-related worker absences, ongoing media coverage and state investigations, no welding-related illnesses were ever entered onto KFM's Log 300.
Cooking the Books: The Real Decision-Makers
KFM's ultimate "failsafe" for maintaining low injury and illness rates at the Bay Bridge is the fact that the consortium, like all employers, is the one who decides what gets entered onto the Log 300, a decision that is supposed to be made by considering the medical work status reports, internal accident reports, Log 300 regulations, and "other relevant information."
In May 2006, Cal/OSHA conducted interviews with KFM safety managers Robert Hughes and his successor Tim Dare. Dare told Cal/OSHA that the decision to make a Log 300 entry was made via "informal, verbal discussions" among a select group of managers (all of whom are eligible for the cash incentive program), including the project safety manager, job superintendents and construction managers on site, the local project director, and the district and regional safety managers in Vancouver, Canada.
Conveniently, this select group of decision-makers does not meet formally, but rather has "informal" telephone conversations; it does not keep any records of their discussions or who participated; and it does not exchange emails or generate any written record of their deliberations or decisions.
Exactly what occurs behind closed doors with this group of managers was not discovered by Cal/OSHA or the BSA until former safety staffer Winston Peart wrote to the BSA:
During my experience at KFM, I witnessed a pattern of deliberate underreporting of injuries. This was frequently accomplished by classifying injuries in a way that allowed individuals to return to work and perform some light-duty assignment. This allowed KFM to avoid reporting the injury to Cal/OSHA or submitting an Employer's First Report of Injury (Form 5020) to KFM's worker's compensation administrator. In addition, I found that these injuries were typically not included on the Form 300 logs.Cooking the Books: Why KFM Does It
Why would a giant construction consortium spend so much time and effort to keep recorded injury rates low? The reasons were explained in a September 3, 2006, editorial by the newspaper chain which publishes the Oakland Tribune:
Thus, a head injury to Ramon Martinez, Keith Bates' disabling fall from a truck, Darrell Hall's back injury and a career-ending knee injury to Arne Paulson never showed up on state injury records. Paulson even spent 16 months performing light duties before going to an outside physician who almost immediately scheduled him for surgery. Paulson said he was fired by KFM the day he was on the operating table.A win -win situation for everyone -- except KFM's employees
How does this scenario help KFM, beyond sanitizing its injury record?
Good safety records keep insurance rates down, enabling a firm to more competitive when bidding for jobs. High insurance rates resulting from two many injuries can price contractors out of the market. Its sort of market-controlled, says Bart Ney of the California Department of Transportation. And, if most other things are equal, safety records can be the deciding factor in getting a contract since fewer injuries signal that a contractor runs safe projects, saving time and money.
Cal/OSHA: A Schizophrenic Enforcer/Defender
KFM's creative accounting with worker injuries has been enabled by Cal/OSHA's schizophrenic jumping between worker protector and employer defender.
Normally, federal OSHA would have jurisdiction over the parts of the job that were done on floating platforms. Federal OSHA would not give up its jurisdiction on work done on barges in the bay until Cal/OSHA agreed to.a "compliance assistance partnership" with KFM. Rick Rice, undersecretary of Cal/OHSA's parent agency, defended the partnership in his reply to the scathing Bureau of State Audit (SBA) report by saying that "federal OSHA encourages them [partnerships] and expects State Plan states to engage in them."
As guest-blogger ERM wrote in a series on recordkeeping problems last May,
Federal OSHA has been promoting voluntary partnerships for years, in an effort to induce companies to make safety improvements. OSHA lacks the resources to enforce everywhere, the reasoning goes, so the more it can encourage companies to comply voluntarily, the better for everyone. Being kinder and gentler to business is also in line with the political program of the Republican administration.The compliance assistance agreement with KFM allows Cal/OSHA complete access to the work site, with prior notice to KFM, in return for KFM's agreement to correct identified hazards found during a visit.
But a written partnership agreement, with explicit roles and rights for workers and their unions, was never formalized with KFM, which balked at signing any of the seven versions of the partnership text prepared by Cal/OSHA. Eventually Cal/OSHA gave up on a written agreement and has been operating on a "handshake" basis with KFM, but without any direct role for workers or any additional resources for monitoring the giant construction site.
The problem with the agreement, as CAPS, the union representing Cal/OSHA inspectors, noted in February 2006, is that
The Bay Bridge is an enormous, 10-year project that could keep a full-time team of inspectors busy morning, noon and night. Instead, Cal/OSHA has only had the resources over the last three years to send out individual inspectors on pre-announced, rotating visits about once every other week. The eight inspectors involved, and their supervisors, all have major responsibilities in their home offices, and none were dedicated full time to the bridge.Moreover, bridge workers interviewed by the Cal/OSHA enforcement inspector in 2006 said that advance notice of Cal/OSHA compliance assistance visits prompted a rapid clean-up of the areas to be visited by the compliance assistance personnel, who were then treated to a "dog-and-pony show" substantially different from the work site's normal activities.
At the same time that Cal/OSHA was citing KFM for recordkeeping violations, the agency was making a considerable to defend KFM in the media and with state auditors and legislators.
For example, when the willful citations against KFM were issued on the morning of Thursday, June 1st, 2006, Cal/OSHA did not issue a press release until the next day, a Friday, when media coverage would be minimal. The Cal/OSHA press release itself never mentioned that the citations issued were classified "willful" and most of the one-page release praised KFM.
When the Oakland Tribune ran another set of articles in August 2006 providing specific details on how worker injuries were under-reported by KFM, Cal/OSHA officials again leapt to the consortium's defense.
Dean Fryer, spokesman for Cal/OSHA's parent agency, told the Tribune:
This type of project involves extremely hazardous work and is very prone to causing serious injuries. The low rate of fatalities and serious injuries, which cannot be hidden and no one has alleged to have been hidden,Actually, hiding the actual injury rate was exactly what Cal/OSHA says happened at the Bay Bridge and precisely why it issued willful citations to KFM. These are not just "minor paperwork violations," but citations for a deliberate, willful suppression of reporting of serious injuries, at least four of which required major surgeries.
At the same time, KFM has appealed all three sets of citations issued by Cal/OSHA in enforcement inspections generated by two injury accidents and one complaint, as well as the June 2006 Willful Log 300 citations. The consortium has hired an expensive, very aggressive management law firm to fight all citations issued by its "partner."
Cooking the Books: A National Problem
The problem of deliberate employer under-recording has become so serious that even George Bush's partnership-crazy Fed OSHA has issued Willful citations to major Fortune 500 companies:
In April 2006, the Wall Street Journal reported on a Michigan State University study that indicated the current method the government uses to track on-the-job injuries and illnesses may miss up to two-thirds of the total number of cases. "Researchers estimated that 869,034 work-related injuries and illnesses occurred on average each year in Michigan from 1999 to 2001, compared with the BLS [Bureau of Labor Statistics] estimate of 281,567 per year. Dr. Rosenman estimates that 75% of the injuries and illnesses missed by BLS resulted from employer underreporting," the Journal noted.
- In June 2004, Federal OSHA issued a Willful citation (later changed to "unclassified") and $70,000 fine to Weyhaeuser's Truss Joint facility in Buckhannon, WV, for failing to record at least 38 injuries and illnesses on its Log 300. The citations "paint a picture of an organization where under-reporting of injuries and illnesses appeared to be a routine practice that was tolerated, and even rewarded, by company vice presidents," according to Occupational Hazards magazine.
- In October 2004, Southern California Edison under-reported workplace injuries and illnesses for the previous seven years and had to return $35 million in safety-related bonuses to the California Public Utilities Commission. "Edison found evidence that supervisors contacted outside medical personnel to influence treatment, change medical records or downgrade the seriousness of an injury. Other times, Edison said, its managers encouraged employees to dodge safety reporting requirements by undergoing physical therapy or using vacation days during recover," the Los Angeles Times reported.
- Also in October 2004, Federal OSHA issued two willful citations and $140,000 in fines to General Motors Powertrain Corp. in Massena, NY, for failing to record 98 instances of work-related noise-induced hearing losses and other injuries and illnesses. Eight other citations with $20,000 in fines were issued.
- In November 2005, Federal OSHA issued three willful citations and $165,000 in fines to Fraser Paper's Madawaska, ME, paper mills for Log 300 violations between 2003 and 2005. Fed OSHA found 59 instances of injuries and illnesses that were not records, 77 instances where recordable entries were not made within 7 days, and two years (2003 and 2005) for which incomplete annual injury and illness log summaries were certified as being complete.
Accuracy in Log 300 reports is important because these, along with other workers comp information, are used by employers to identify hazardous operations needing attention on the job, and by government agencies to set priorities for their limited research and enforcement resources. Moreover, injured workers, whose injuries or illnesses are not acknowledged by their employers, often cannot obtain needed medical treatment, rehabilitation and compensation.
As the publisher of the Oakland Tribune noted in its September 3rd, 2006 editorial:
If the safety record constructed by KFM is built on doctored injury reports, a facade of safety is created. If other firms follow the same practice, it means that an unknown number of work-related injuries and illness go unreported. That inflates safety and downplays injuries and risks. It's deceptive, giving state officials and the public a false picture of workplace safety, which in turn can lead to more hazardous conditions and injuries.What's Next for KFM and Cal/OSHA?
Although KFM lost its bid to build the second phase of the Bay Bridge's eastern span, the consortium will be working on site for several more years. The "compliance assistance partnership" with Cal/OSHA is still in effect, as are KFM's various safety incentive plans.
Cal/OSHA, for its part, will now have to divide its limited resources between defending its citations against KFM's "scorched earth" attorneys, and attempting to maintain a sporadic presence of non-enforcement personnel at the bridge to assist its "partner."
One of the key findings of the February 2006 BSA report was that Cal/OSHA clearly needs additional field inspectors and resources to meet its mission and legal mandate at the Bay Bridge and throughout California.
In July, the state legislature passed a very modest $1.5 million budget augmentation to hire an additional 15 Cal/OSHA inspectors. But in August, Governor Arnold Schwarzenegger eliminated the funds earmarked for hiring on the grounds that new inspectors are "not necessary" as "workplace injuries and fatalities in California are well below the national average."
"Cooking the Books" Series
Cooking the Books, Part I: Underreporting Worker Injuries at the San Francisco Bay Bridge, September 19, 2006
Cooking the Books, Part II: The Stick and The Doctor, September 20, 2006
Cooking The Books, Part III: The Industrial Hygiene Consultants and How KFM Benefits, , September 21, 2006
OSHA Recordkeeping Series by ERM
Part I: Learning From Enron: Why Accurate OSHA Recordkeeping Matters, May 15, 2006
Part II: At AK Steel, as at Enron, the Numbers Don't Add Up, May 23, 2006
Part III: OSHA Recordkeeping: Who Will Audit the Auditors?, May 27, 2006
Confined Space Bay Bridge and Related Stories
- Incentives To Cheat: OSHA Recordkeeping And Its Toll On Workers, August 27, 2006
- CalOSHA Fines Contractor For Recordkeeping Fraud, June 1, 2006
- Study Finds Workplace Injuries And Illnesses Significantly Undercounted, April 11, 2006
- Cal-OSHA Blasted By Auditor for Bay Bridge Illnesses and Underreporting. Understaffing Blamed, February 9, 2006
- More KFM Flu: Neglected Workers and a Suffering Safety Agency, April 19, 2005
- Behavioral Safety Out of Control and The KFM Flu, April 12, 2005