construction safety:

Bridge contractor shows it’s willing to fight

A California case suggests Nevada OSHA will have a tough time in its probe of the death of worker on the Hoover Dam bypass bridge

Las Vegas Sun File

A worker employed by a joint venture involving Japan’s Obayashi Corp. recently died during construction of the Hoover Dam bypass bridge, shown in May.

By Alexandra Berzon (contact)

Tuesday, Dec. 23, 2008 | 2 a.m.

Construction Deaths

Worker dies at Hoover Dam bypass bridge project (11-25-2008)

Six years ago, while working on the Golden Gate Bridge in San Francisco, carpenter Kevin Noah fell 50 feet to his death.

California fought for five years to hold Noah’s employer responsible for safety violations that led to his death. Eventually, the employer’s lawyers persuaded a judge to overturn the violations based on a minute technicality.

Noah’s case, recounted last year by the San Francisco Bay Guardian, is worth rehashing in Nevada because one of the companies involved was Obayashi Corp., a Japanese construction giant that is part of a joint venture that employed Sherman Jones, a worker who died recently on the Federal Highway Administration’s Hoover Dam Bridge project.

Authorities have not released details. They will say only that the accident occurred during a routine operation to adjust a cable used to align temporary concrete towers that support construction of the bridge’s twin arches.

Nevada Occupational Safety and Health Administration inspectors want to know whether unsafe conditions led to Jones’ death. If history is any indication, the investigation will be difficult.

Dean Fryer, a spokesman for Cal/OSHA, says Nevada needs to understand what it is up against with the Obayashi joint venture.

“Normally we get cooperation from companies when we do our investigations, but this company is lawyered up and made life very difficult for us,” said Fryer, whose agency is considered one of the toughest state OSHAs in the nation.

By contrast, Nevada OSHA has a record of backing away from its findings in investigations of workplace fatalities. A Sun investigation this year found Nevada OSHA repeatedly withdrew citations in fatality cases after the construction companies involved met privately with OSHA. (In the months after the Sun’s stories, Nevada OSHA became less willing to make deals in fatality cases.)

Cal/OSHA’s investigation involved an Obayashi joint venture, Shimmick Obayashi, general contractor for the Golden Gate Bridge project.

“They didn’t do anything illegal, but they were exercising their judicial right to the point that it was impeding our investigation,” Fryer said. For example, the company insisted one of its lawyers sit in on all interviews with employees.

Cal/OSHA found six violations of safety laws by Shimmick Obayashi, three of them serious, and fined Shimmick Obayashi $26,025.

The contractor appealed.

Four years after the death, at an appeals hearing, Shimmick Obayashi’s lawyers didn’t deny the company had violated safety laws.

Instead, they argued the citations should be overturned because Cal/OSHA hadn’t written the name of the joint venture correctly on the investigation report. They said it violated code that required the state to cite “the correct legal entity.”

On business cards, the joint venture called itself Shimmick-Obayashi, which is how OSHA had referred to it. But its legal name was Shimmick Construction Co. Inc./Obayashi Corp., Joint Venture.

“That argument had come out of nowhere,” Fryer said. “It impacted our staff because they had put all this work in and we thought we had a good case. This type of thing doesn’t usually happen.”

Tom McGuire, general counsel for Obayashi Corp., said in a statement the company’s involvement in the Golden Gate Bridge retrofit project was largely financial. The company wasn’t the managing partner and therefore wasn’t involved in dealing with Cal/OSHA, McGuire said.

Obayashi also battled Washington state’s OSHA after a fatality on a light rail tunnel project. In August, Washington OSHA cited Obayashi for five serious safety violations, with fines of $29,000. But that just set off the appeals process — which is ongoing.

In the past eight years, about half of all OSHA cases nationwide in which Obayashi was involved and cited ended up going to a formal appeals process, an OSHA database review shows.

Nevada OSHA has its work cut out, Fryer said.

“I often wonder, even here in California, if we shouldn’t consult with other states when we’re doing an investigation to see if there’s anything in particular about a company and their approach,” he said.

Discussion: 5 comments so far…

By letjusticeprevail

12/23/08 at 5:39 p.m.

Suggest removal

Sherman Jones family: Don't trust NV OSHA. PLEASE keep on top of the investigation and understand that if you do not agree with NV OSHA findings you have the right to file a formal complaint (CASPA)against them to Region 9 of OSHA in San Francisco. We did that after they were "influenced" to change 'willful neglect' findings in our son's death to merely serious. Sounds like this coporation will do the same as the gaming industry will to avoid blame and bad publicity. Wonder if the gov will get involved in this too?
By SafetyNow

12/23/08 at 10:24 p.m.

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From an inside perspective there are no words to describe how it felt
being forced into a front row seat to look on in disbelief and horror as
the blade of corruption was repeatedly and unnecessarily plunged back
into an open wound. Where death and loss are just the beginning of
what you'll have to endure, when there is no end in sight. Things
like truth, honor and justice cease to exist, and the only fate worse than
having to survive the nightmare is failing to expose the truth before
history repeats itself, naming its next victim. And imprisoning all
survivors into this Corporate world of corruption where the only ties
that bind are those of Corporate Greed, Political Favors, Oversight &
Injustice.

Rest In Peace Kevin
Mary Vivenzi
By SafetyNow

12/27/08 at 12:06 a.m.

Suggest removal

To elaborate on Dean Fryer (spokesman for Cal OSHA) comments...
1.) "Normally we get cooperation from companies when we do our investigations, but this company is lawyered up and made life very difficult for us,"
2.) "The company insisted on having one of its lawyers sit in on all interviews with employees."

Not only did the company insist on having one of its lawyers sit in on all interviews with employees. They also (just to name a few.)

Immediately transferred the entire crew to working the nightshift making them inaccessible to OSHA during business hours.

Sent OSHA two big boxes of unorganized paperwork (with the words KEVIN NOAH USLESS DOCUMENTS written on the boxes)

Hired an attorney who in his earlier days actually had a hand in creation of OSHA.
who has since switched sides making a fortune while seeking out loopholes in a system he himself helped to create.

Tried to run out the time clock on OSHA's investigators by forcing them to obtain individual subpoena's for each coworker they needed to interview (OSHA investigations cannot exceed the six month time period allowed to complete and file their findings) Because of this alone OSHA investigators almost missed that deadline
Insisting on having one of its lawyers sit in on all interviews with employees was just the companies way of assuring that not only would it make the employees uncomfortable while being interviewed it allowed them to prevent the employees from saying anything that they weren't supposed to

As for the way Shimmick/Obayashi legal team got the judge to overturn the case by arguing the citations should be overturned because Cal/OSHA hadn't written the name of the joint venture correctly on the investigation report. They said it violated code that required the state to cite "the correct legal entity."

What can I say other than they got away with it. Whether the paid the judge off or just straight out lied. I cannot say. I have an opinion but I'll keep that to myself. I prefer fact.
and the fact is OSHA didn't fail to cite "the correct legal entity."
The correct entity was cited.
Shimmick Obayashi was not only the name printed on their business cards,
It was also the name on the employee identification badges (see below)
Employee paychecks and the name used to file their quarterly reports with the Highway & Transportation District (see Below)
*Continued in next post*
By SafetyNow

12/27/08 at 12:11 a.m.

Suggest removal

The following link is to a document from the Highway & Transpotation District's Finance-Auditing Committee which includes a quarterly report filed after the case under the name...
SOJV ~ Shimmick/Obayashi Joint Venture.
not SCOCJV ~Shimmick Construction Obayashi Corporation Joint Venture.

http://www.goldengate.org/board/2007/Age...

Photos of both Kevin's company id as well as the visitors identification badge I kept
(from when the bridge was on "CODE ORANGE" alert for potential terrorist attacks) can be seen at the bottom of the page via the following link. (Needless to say they both say SOJV ~ Shimmick/Obayashi Joint Venture.
not SCOCJV ~Shimmick Construction Obayashi Corporation Joint Venture.)

http://netflixcommunity.ning.com/video/v...

The following link is to yet another shinning example of many attempts to publicly boast about how they won a safety award for their work on the Golden Gate Bridge (AKA; The job that Kevin was killed on) and their non existent Commitment to safety
It was things like this that cause the most pain

http://www.americanexecutive.com/index.p...

And last but not least this final link is to the only award they did disserve not to mention they were also the first to ever receive it.

http://www.youtube.com/watch?v=TCZKssOvt...

Boyd Gaming was the second recipient

http://www.youtube.com/watch?v=6wrVngaFt...

Thanks again Alexandra for all your hard work and dedication.

Mary Vivenzi
United Support & Memorial
For Workplace Fatalities
Email ~ Mvivenzi@usmwf.org
web site ~ http://www.usmwf.org
Blog ~ http://weeklytoll.blogspot.com/
Transforming tragedy into prevention
"One with a voice that does not protest an injustice
is an accomplice to it."