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February 11, 2012

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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

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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.

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

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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.

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