a dangerous business
mcwane story
interview: john henshaw

How successful do you think OSHA has been at protecting workers in the United States?

In the last 30 years, OSHA has some tremendous in strides or strides in reducing injuries, illnesses and fatalities. In the last 30 years, the numbers have gone down significantly. In the last six or eight years, injuries and illnesses have gone steadily down, and fatalities have gone down to the point where they're lowest ever. That's a measure of success, but that's not enough. I mean, any injury is too much, any fatality certainly is too much.

Fatalities are not accepted practice. Injuries and illnesses and amputations are not accepted practice.

Are OSHA's basic laws tough enough?

The laws are fairly strong, in the sense of what was enacted in 1970 in the OSHA Act, and the standards and regulations that were promulgated since then, up to this day. And we'll continue to promulgate standards. They are strong. Obviously, we're constantly looking at where we need to improve that, and will continue to make those improvements as we go forward. But they are one of the reasons why we have seen a reduction in injuries and illnesses and fatalities.

So you don't see any need to increase the penalties, say, for deaths of workers? Or in general, the criminal penalties, for instance, around OSHA?

OSHA's penalties were restructured in 1990 or thereabout 1990, where we've increased the penalties for, let's say, willful violations, from $10,000 to $70,000 per violation. We also have the ability either aggregate those violations or go instance by instance, and that's our "egregious" policy.

So we have the flexibility of citing, for a violation, say, up to $70,000 for willful, and multiply those by the number of instances that that may occur in a work site. So we have a great deal of flexibility in levying penalties to employers that choose to not follow the act or follow the laws of this land. ...

John Henshaw has been assistant secretary of labor for occupational health and safety since August 2001. In this interview, he maintains that OSHA regulations are strong and points for evidence to the "significant" reduction of workplace injuries, illnesses, and fatalities over the past 30 years. He also says that he believes OSHA enforcement actions should be targeted at "bad actors" -- those companies with the highest injury rates and worst violation records. This is an edited transcript of his interview with FRONTLINE, conducted on Sept. 30, 2002.

The budget for OSHA is going to be decreased in the coming year?

There's a slight decrease in the budget that we've requested and submitted to Congress. Obviously, the Appropriations Committee is now reviewing the president's request. It's a slight decrease. But overall, it is sufficient for us to carry our strong, fair and effective enforcement of policy. ...

Before you became the administrator, you were quoted in Chemical Week as saying, "Enforcement may reach the law of diminishing returns." What did you mean by that?

It is my strong belief that enforcement is one of the tools that we have -- and certainly within the act, it allows [us] to do many different things aside from just enforcement. The notion there is that there are many tools that drive performance. Inspections and enforcement will drive performance with those facilities that have no other incentive to comply. What we wanted to do is be very strong on enforcement, so we can focus on the actors or the bad actors who are not choosing to comply and not choosing to provide a safe workplace.

The other portion of the population, in my belief, really want to do the right thing. There are employers out there that truly want to comply. They may not know how; they may not know what are the nuances of a standard, and they may not have all the information available to them and may not understand. A lot of the employers we go into -- especially when you're talking about 80 percent of our workplaces out there today [that] are small businesses -- they don't know oftentimes what it means to comply, what are the standards relevant to their business.

And so what we have to do, instead of doing enforcement on some of those facilities -- especially the ones that have low injury and illness rates ... -- instead of wasting our enforcement dollars going to them, we ought to be going to outreach education and compliance assistance. If that doesn't work, then we go to enforcement. But my contention is, with the 80 percent of the small businesses out there, a lot of them just don't know how to comply, know how to provide a safe workplace.

So you believe basically in counseling or treatment, if you will, as opposed to prosecution?

No. Prosecution should be focused on those who only respond to prosecution, only respond to enforcement, because that's a one-on-one intervention. You go, inspect one time, and you intervene. Now our trick is, or our challenge is to make sure that sticks, make sure that enforcement actually causes the change in the workplace, and it's a safer workplace.

How many criminal referrals have there been since you've been head of OSHA?

I don't have that statistic. We've had criminal referrals. Certainly the most notable one is Tyler Pipe, where we've got a criminal--

But that started before you got here.

That started before, yes.

I mean since you've been in office. Do you have any idea?

I have no idea how many we've had. I don't know that statistic. ...

Editor's Note: After the interview, Mr. Henshaw said he had referred five cases to the Justice Department.

There was a study done a couple of years ago about the way in which statistics are gathered by the Department of Labor concerning injuries and in the workplace. [What] it says is that 53 percent of injuries aren't counted. So how do you know that the injury rate is going down?

... Our definition [of injuries and illnesses] is pretty solid. It's part of our record-keeping standard, where we spell out what is required as far as recording injuries and illnesses in the occupational work-related setting. I don't know that study you're referring to, and whether they're talking about first aids or non-occupational that may present themselves in the occupational setting.

No, they're talking about the fact that, for example, certain self-employed people are not covered in the statistics that are put together. Federal public employees are not covered, along with self-employed people and that, in general, small businesses do not report; there isn't very much enforcement about their failure to report injuries, particularly occupational-related illnesses on the job.

Well, that's true. Some businesses or some industries are exempt from our reporting requirements, and that's true. ...

So there is a degree to which we really don't know how big the problem is and whether it's growing or not?

No, that's not quite true. Because [the Bureau of Labor Statistics] is consistent over the years, we know whether at least that consistent population is going down or up. And the point is it's going down. So the same industries that we've been measuring over the last 10 years are consistently going down, and so we know that population's going down.

What we don't have is the small businesses that are exempt from the record keeping. Obviously, some of the federal and state employees, they're not included in the statistics. And we have gathered those data as well, and see those populations going down as well. ...

You know, the question that's been raised to us is that the emphasis on self-policing -- which is really what you're talking about as opposed to enforcement -- in an atmosphere where we've discovered corporate fraud in the accounting industry, for example, and so on -- haven't we learned a lesson that the lack of real enforcement, tough enforcement can lead to potential disaster?

I think we have tough enforcement. It has been steadily getting tougher and tougher over the years. We're increasing the number of our inspections, not decreasing. We are increasing the number of inspections. We are increasing our efforts. In fact, the statistics for this year show that we have a 70 percent -- highest ever -- 70 percent of our violations that we find in workplaces are serious. Highest rate ever, 73 percent.

Why is that?

Because we're more serious about finding serious violations and identifying serious violations, as well as we're targeting those workplaces that have high injury rates and high hazards, and obviously levying more penalties associated.

Again, I'm speaking for people that we've interviewed, but they point out -- for example, you talk about tough enforcement. They say the penalty under OSHA for a willful and negligent death in the workplace, the maximum penalty is a misdemeanor, right? A six-month sentence. And the penalty on federal land for harassing a wild burro is a year in jail.

Well, the penalties we can levy ... on a willful violation is $70,000 per violation. As well as -- let's say, a plant has four machines and they're improperly guarded. We have the ability to either levy a penalty of $70,000 for the entire operation, or $70,000 per machine, and that's the egregious policy. And we've done that several times this year, and we'll continue to do that.

The Tyler case is a good example, right, of where you've done that? But there was a misdemeanor criminal plea in the Tyler case.

That was a criminal action versus a civil action.

Right, and my understanding is that your office was not consulted about the $250,000 plea bargain in that case. Is that true?

Well, we're responsible for the civil action; that's where we fine. And the penalty we initiated was over a million dollars for the willful and serious violations in that case, an egregious -- exercising egregious policy.

But were you consulted by the Justice Department?

The Justice Department is responsible for the criminal action. I don't know what the conversations were between our attorneys and their attorneys. But that is their responsibility from the criminal side. ...

In the Tyler, Texas, case, in the death of Mr. Hoskin, do you know that, within two months of that death, another worker was killed in another plant in a similar situation owned by the same company?

It was in Anniston, Alabama. ... It was a significant enforcement action against the company in Alabama as well, so $150,000 levied in penalties.

No criminal charges?

I don't know what the criminal action was. I just said that's a Justice Department decision as to whether they want to take that. All I can say is the fatalities are extremely serious to me, are serious to OSHA. The numbers have gone down. But as I said before, one fatality is too many.

McWane has had 595 violations, and we've had over 111 inspections of those facilities. So clearly they have a serious record with us, and we need to do something different.

I know, I've read the case around Horace [Rolan] Hoskin. I know of the incidents in Alabama. In fact, what we've done here is we are issuing letters to families from my office, from me, acknowledging the fact that we had this tragedy, how serious it is to us, and how important it is to prevent every fatality. So we're doing everything in our power to drive those fatalities down, and we won't rest until all of them are.

What happens when you come across a company that has, as in the case of Tyler Pipe, repeated violations, and then it turns out, repeated instances in other plants owned by the same people? Do you do a pattern of practice investigation? Is this a conspiracy case, or do you have to do it case by case, incident by incident?

I'm a safety and health professional. I know that there's corporations with certain philosophies and cultures and practices. With Tyler Pipe or McWane or other organizations, when they have a pattern, we need to take special attention and make special attention to those facilities, to make sure that we don't have the same kind of pattern going throughout the organization.

In fact, what we've done as a result of Tyler Pipe -- and they're pleading guilty and dropping the contest for our recent enforcement action in the criminal case -- is that we've worked out an arrangement with them. They've agreed to this. We are going to inspect five of their facilities to our choosing and do a wall-to-wall inspection of those five facilities, because my only concern is that they get the message; that they turn themselves around and manage that company more appropriately -- and fatalities are not accepted practice. Injuries and illnesses and amputations are not accepted practice. So we are going to go back to those five facilities, and we're going to pick them. They're not going to pick their best--

Five of their plants.

Five of their plants and McWane, which is the parent company of Ransom and Tyler, we're going to pick those and we are going to do wall-to-wall inspections of those facilities. The sole purpose and the only purpose in my mind is to make sure they should turn around and produce a good management philosophy and practice; [that] they bring in safety and health professionals who can identify hazards and control those hazards.

And they've agreed to this. Proof's in the pudding. They've got to produce, and we're going to be there to help them along.

You know when we looked at the cast iron foundry, the reason that we focused on [McWane] in part was that we counted up 420 OSHA violations over a seven-year period. How can that possibly happen if there's an effective enforcement program going?

I can't speak to the past. All I can speak to is from where I'm starting from in the future. But the fact is McWane has had 595 violations, and we've had over 111 inspections of those facilities. So clearly they have a serious record with us, and we need to do something different. And that's why we're going to these five facilities.

One of their former plant managers tells us, on the record, the company philosophy is, "Come on in, inspect, we'll pay the fines. Production's what's important."

And what's important to OSHA is illness and injury reduction and reducing the hazards. So that's where we've got to find the right message to companies like Tyler, that they've got to turn themselves around. That's our goal. It's not to levy penalties and issue fines and violations and identify violations. The purpose has got to be reducing the hazards to the point where we have no injuries, no illnesses and no fatalities.

[Some of your critics say that] the regulations and the criminal law in particular, is not strong enough. [They] say there have been 250,000 workers who died, at least, since OSHA was passed and as far as we know as of 1998 [there have been only] 128 criminal referrals -- [a] drop in the bucket. ... Is [there] a cop on the beat?

Well, there is a cop on the beat, and that's our job.

But do you have -- is there a loaded gun?

We have a number of success stories. Number one is the numbers have been going down. We have the lowest fatality rate ever in our history, and that speaks to something. It's still not good enough.

You don't accept that the statistics are potentially not very accurate, that this academic study that was done says that your statistics are really off and you're underreporting the number of deaths, but primarily injuries and illnesses.

Well, the statistics you're referring to I thought were injury and illnesses, not fatalities.

Well, they say you underreport fatalities by about 500 a year.

I don't know. I don't know how they derive that, but I don't think we're underreporting fatalities. Fatalities are much difficult, obviously, to conceal. We have association and agreements with municipalities and law enforcement authorities where we get referrals when there's a fatality and it's suspected to happen in a workplace. We get those referrals, so we can do more comprehensive inspections.

The employer is required to notify us of a fatality in the workplace. We also get referrals from news media, the coroners, the police authorities, so we match that with the referrals we get from the employers themselves as we go about our fatality investigations. So I don't think fatalities are that far off. I'm not saying they're perfect, but they're not far off. And even with that, the numbers are going down. So I think we're really much more effective in our statistics around fatalities.

But you remember, I think ... in the prior Bush administration, when there was a crackdown on the failure to report, injury reporting and all other reporting went way up, because there was a fear of consequences. But it's been 14 years since that's happened.

We crack down every day. We crack down in every inspection. As I mentioned before, during our inspection process, we will look at our record keeping and assure that it's accurate to the extent we can. ...

You're the administrator. You've seen the cases come through, and you've been in this business for a long time. Is a misdemeanor a strong enough penalty, criminal penalty, for willfully and negligently having a worker killed, in effect?

My role is on the civil side. My concern is exercising strong, fair and effective enforcement and levying the right penalty and getting the right amount of attention to the employer so that they change their workplace. That's my goal. I'm using everything in my power, everything -- the authority I have under the OSHA act and every legal avenue I can pursue -- to make sure that employer changes their attitude and produces a safe workplace. That's what we've done at Tyler.

And you think they're going to change?

Proof's in the pudding. That's why we have to go into those five facilities. We have to do wall-to-wall inspections, and when we identify violations, we're going to cite them, going to cite them to same degree. They've got to change, and they indicate the willingness to work. But the proof's in the pudding. We will not put any more people in jeopardy here. Our job is to do very careful inspections, and thorough inspections; if there's violations, cite. And we're going to keep going back until they have changed to produce a safe workplace.

But the OSHA law is designed, as it's written, to stop potential violations. You're forced to use it to try to stop or have people pay for violations that have taken place.

That's correct. That's precisely why we've instituted our site-specific targeting. These sites have the highest injury rates. So we want to focus our inspections on those sites where they have the highest injury rates, which stands to reason they have the highest degree of hazards. ...

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