Las Vegas Sun

September 15, 2019

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Interpreting protections away

Union: OSHA weakens its standards with challenge-proof ‘directives’


Richard Brian

An ironworker died at CityCenter, shown under construction this month, when he fell 59 feet through a hole in a floor. An OSHA-required backup deck or netting was not in place.

Prompted by circumstances surrounding the deaths of construction workers on the Las Vegas Strip, the International Association of Ironworkers is questioning federal safety regulators over their decision not to enforce several safety laws.

The union says the federal Occupational Safety and Health Administration has issued directives that undermine its safety regulations, including one that had been in place for decades — a requirement that contractors provide temporary decking or netting below workers to catch them if other safety measures fail.

The federal agency determined the decking, which can be cumbersome for contractors, is unnecessary if workers attach their safety harnesses. OSHA spelled out that interpretation in a directive to field officers in 2002.

The union says the decking is a necessary added precaution. “The dangers are too great, the injuries too serious, and fatalities too numerous to say we don’t need a backup,” said Ron Gladney, general counsel for the ironworkers union.

Statistics the international has gathered show that OSHA’s interpretations could be contributing to an increase in fatalities in recent years. The union says that in 2005, after word got out to contractors that OSHA was no longer requiring contractors to provide decking or netting below employees, union ironworker fatalities nationwide rose from five or six a year to between 14 and 19. In the first four months of 2008, the union has counted 11 deaths.

The international’s decision to question OSHA further thrusts the union into the complicated politics of modern construction safety.

OSHA in recent years has issued interpretations of long-standing safety requirements that, in some cases, effectively change or abolish those requirements without public review, critics argue. For nearly three decades after OSHA was created by a Democratic Congress and signed into law in 1972 by a Republican president, the agency issued what are known as compliance directives to instruct field officers in enforcement of OSHA laws.

But in the past decade, OSHA’s construction standards division began using compliance directives more broadly. They were used to interpret safety standards and to tell employers which standards could lead to safety violations.

Employers see those directives as positive steps to help them understand the intentions of OSHA law, said Chris Williams, director of safety for Associated Builders & Contractors, a trade group.

“Like anything written by government, OSHA regulations are full of words that can be confusing, and compliance directives are meant to clarify what they mean,” Williams said.

But labor advocates say the use of directives to interpret or change the meaning of construction safety standards is improper. The directives do not go through the same public review as the standards themselves did.

“A party can challenge a standard within 60 days when it’s issued, but with compliance directives you don’t have the right as a worker or union to challenge it, and it becomes a way of changing the rule,” said Peg Seminario, AFL-CIO’s director of safety and health.

The Ironworkers international has been reluctant to challenge those interpretations forcefully, fearing that OSHA would respond by weakening standards. The debate over the decking requirement illustrates the union’s wary approach.

After the Las Vegas Sun wrote about lax enforcement of safety requirements involved in the deaths of nine construction workers on the Las Vegas Strip, local Las Vegas union business agent Chuck Lenhart sent a letter to Nevada OSHA challenging the agency’s failure to enforce the decking standard.

Union officials then drafted a strong letter for the president of the international, Joseph Hunt, to send to the U.S. Labor Department secretary. A copy of the draft obtained by the Sun shows that it focused on one of the Las Vegas workers whose death served as a case study in the Sun’s stories, ironworker Harold Billingsley.

On Oct. 7, Billingsley fell 59 feet through a hole in a floor at MGM Mirage’s CityCenter project. The contractor, Perini Building Co., had not provided decking or netting at least two floors or 30 feet below Billingsley, as called for by federal OSHA regulations.

But in keeping with the federal OSHA directive, Nevada OSHA inspectors did not cite Perini for the failure.

After drafting its strong letter to the labor secretary, union leaders decided not to send it. They were concerned that OSHA would react by abolishing the decking standard, according to one person involved with the union’s decision.

The international’s approach now is to discuss the issue with representatives from Congress and the Labor Department, Gladney said. Committees in the House and Senate are looking into issues of workplace safety.

The union also intends to raise the subject at a meeting in Las Vegas with OSHA administrators, contractors and policymakers, Gladney said. That meeting, as yet unscheduled, is being arranged by Clark County Commissioner Chris Giunchigliani and Las Vegas City Councilman Steve Ross.

The union also takes issue with an OSHA directive about the use of connecting studs on steel beams. The union contends the directive creates a tripping hazard that causes falls.

But the decking standard is of the most concern in Las Vegas. In 2001, OSHA published new steel erection standards that had been negotiated over many years in an advisory committee made up of business and labor representatives.

According to an ironworker representative on the committee who did not want his name used, a contractor suggested abolishing the existing decking standard. The idea was quickly dismissed as unacceptable by labor advocates.

The next year, however, OSHA issued its directive interpreting the decking requirement. The directive said that a violation of the decking provision would be considered insignificant and that employers would not be cited as long as they ensured that workers used safety harnesses.

“The way we look at it, any type of fall protection is an option,” said Dale Kavanaugh, an administrator for federal OSHA who has worked extensively on the standards. “It was never intended to provide two different forms of fall protection.”

Other safety officials disagree. Decking or netting is necessary to provide extra protection to workers, said Larry McCune, principal safety engineer for California’s state OSHA office, known as Cal/OSHA.

About half of all states, including Nevada, have OSHA departments. State OSHAs are required to be at least as effective as the federal agency. Cal/OSHA thinks it would violate that requirement by adopting the federal agency’s 2002 interpretation of the decking standard.

“When the federal directive came out, we didn’t amend our standard to follow them because our standard is more effective and we don’t have the authority to interpret the standard to allow something that would be more hazardous and substantially weakens the standard,” McCune said.

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