Las Vegas Sun

March 18, 2024

CONSTRUCTION WORKER DEATHS ON THE STRIP:

OSHA oversight in question

House committee testimony ‘raises very, very serious’ concern at state, federal levels

Deaths

MAISIE CROW / SPECIAL TO THE SUN

Retired ironworker George Cole, brother-in-law of Harold Billingsley, testifies Tuesday before a U.S. House committee investigating enforcement of safety regulations by the Occupational Safety and Health Administration. Billingsley died last year after falling 59 feet at the CityCenter construction site in Las Vegas.

Federal Hearing Focuses on Vegas

The U.S. House Education and Labor Committee took aim at OSHA on Tuesday, citing the recent fatalities at construction sites on the Las Vegas Strip. After hearing testimony from OSHA's Assistant Secretary of Labor, Edwin Foulke and Las Vegas resident George Cole, among others, the committee took OSHA policy to task and was joined by Nevada Congresswoman Shelley Berkley who also expressed concerns.

Sun Topics

Witnesses and lawmakers at a House hearing delivered a blistering portrayal Tuesday of construction safety oversight on the Las Vegas Strip.

“The project in Nevada looks a little like a test case here, in the sense that fatalities and injuries have taken place, yet they continue,” said Rep. George Miller, chairman of the House Education and Labor Committee.

“The No. 1 tool in the arsenal — fines — continues to get waived,” Miller said, citing reporting by the Las Vegas Sun that found Nevada’s Occupational Safety and Health Administration originally levied fines against contractors after fatal accidents but withdrew those fines after contractors protested.

“This raises very, very serious questions about the state enforcement and what federal government ... has the ability to do under the current law,” Miller said. He was speaking specifically about fatalities at MGM Mirage’s CityCenter and the general contractor at that site, Perini Building Co.

The committee’s hearing came after 12 construction workers fell, were crushed or died in other kinds of accidents in less than 19 months on the Strip and following two deadly construction crane accidents in New York City. Lawmakers sought to assess whether federal OSHA is doing its job to protect workers.

Witnesses and lawmakers at the wide-ranging, lively hearing raised issues of deep concern and proposed a number of solutions.

The most compelling testimony came from George Cole of Las Vegas, brother-in-law of a worker who fell 59 feet to his death at CityCenter on Oct. 5. As his wife cried softly in a chair behind him, the retired Las Vegas ironworker told the packed hearing room that his brother-in-law, Harold “Rusty” Billingsley, might be alive today if OSHA had not diluted federal safety regulations.

In halting terms, Cole also spoke of his family’s pain after discovering that state regulators had withdrawn citations originally levied against Billingsley’s employer after his death.

“Rusty’s death was not his fault,” Cole said, despite Nevada OSHA’s ultimate finding that he alone was responsible and the contractor bore no responsibility. “The OSHA photos of his crushed and lifeless body will forever overshadow the energetic and fun-loving life of this kind and generous man.”

Democratic members dominated the proceedings, questioning federal OSHA chief Edwin Foulke about his agency’s performance. Federal OSHA has been under fire from Democrats throughout the Bush administration for failing to draw up more strict safety rules and to enforce regulations in place.

Foulke stumbled often throughout the roughly three-hour hearing and repeatedly said he did not know the answer to questions such as the total number of construction workers in the country.

Nevada Democratic Rep. Shelley Berkley sat in on the hearing, though she is not a member of the committee. She told Foulke: “I don’t want to turn on the TV and find out more workers died at another site, so there’s a bit of urgency.”

Mark Ayers, president of the AFL-CIO national Building and Construction Trades Department, testified that despite 20 years of improvements, “we suddenly find ourselves in the midst of a safety and health crisis” because of the number of deaths in Las Vegas and New York City. He welcomed the attention to a subject that, he says, is often given short shrift.

Ranking Republican Howard “Buck” McKeon spoke of a proposed federal crane standard. “This hearing is an important first step to examine safety protections for workers in the construction industry,” he said.

The committee repeatedly referenced reports in the Sun about the spate of deaths on the Las Vegas Strip. The Sun’s investigation found that more construction workers have died in nearly 19 months on the Strip than were reported during the entire 1990s building boom.

Miller ignited a lively exchange with Foulke over the Nevada agency’s practice of reducing or eliminating fines after meeting privately with contractors. After Billingsley’s death, for example, a fine of $13,500 against Perini was eliminated after the company appealed to OSHA officials in a private meeting.

Miller called that process a “secret handshake.”

As roughly half the states do, Nevada runs its own workplace safety regulatory agency. By law, a state OSHA must be at least as effective as the federal agency. Foulke explained that he did not have control over Nevada OSHA’s decisions to write down or eliminate fines, and was not aware of the details surrounding the Billingsley case.

Foulke also said settlements are often made to ensure contractors fix safety problems immediately rather than risk allowing them to go on while the case is appealed.

The Sun’s investigation found that Nevada OSHA had withdrawn citations following Strip fatalities even when contractors had fixed the safety problems found in the investigation.

Miller said Nevada OSHA’s practice appeared to diverge from the intent of federal regulations. “Somehow there’s a different view of the universe here in the role these fines play in the ability to diminish the accident rate and ability to enforce the law,” he said.

Rep. Lynn Woolsey of California expressed concern that profits had become more important than worker safety.

Woolsey and Miller said they wondered whether federal OSHA might need more teeth in policing states that run workplace safety agencies.

Foulke explained that the federal government audits and studies state agencies but does not get directly involved.

After the hearing, Miller elaborated on his comments.

Referring to Nevada OSHA and the construction industry, he said: “The relationship in Nevada does not appear like it’s a healthy one for workers.”

Referring specifically to Perini, whose various projects on the Strip have seen nine of the 12 recent deaths, Miller said: “You have a repeat offender, in this case — if I’m reading it right — a repeat offender on fatalities and you keep withdrawing the fines? Excuse me, I assume you’re going to correct the error that’s just killed somebody.”

The committee, prompted by Cole’s testimony, spent a great deal of time questioning OSHA’s use of “compliance directives,” which interpret regulations.

At issue in Billingsley’s death is a 2002 directive advising contractors that they did not have to follow a law requiring decking or flooring below employees as long as they require that employees use safety harnesses.

Nevada OSHA recently rescinded that directive in Nevada, saying it had weakened safety on construction sites by removing a redundant system that could save workers if their safety harnesses failed or were not attached.

The agency’s action came after the Ironworkers union explained to officials that several workers in Las Vegas, including Billingsley, might have been caught midfall had the flooring been in place.

Nevada OSHA last week sent a letter to Las Vegas contractors instructing them to provide decking or netting below employees, Ironworkers union representatives attending the hearing said. The union plans to send letters to state regulatory agencies across the country asking them to follow Nevada’s lead. But, more important, they want Foulke to withdraw the compliance directive at the federal level.

Cole told the committee that at one time in his career, he taught workers about OSHA safety standards. “I was surprised and amazed that the federal government would come out with a directive that would take safety away,” he said. “They took it out. It was there.”

Foulke, questioned publicly about the compliance directive issue for the first time at the hearing, defended OSHA’s decision and said that, contrary to the position of the Ironworkers, the compliance directive ensures more protection.

He pointed to the ceiling of the hearing room.

“That’s 30 feet,” said Foulke. “If I fell over backwards and landed on the floor my likelihood of surviving is low.” Better, he said, is for workers to have their safety harnesses attached at all times.

Miller questioned his logic.

“But you might tie off to something and then it’s faulty,” Miller said. “I like the idea of 100 percent fall protection, but there aren’t a lot of things in life that are 100 percent.”

Berkley asked Cole whether he thought his brother-in-law, who did not have his safety harness attached when he fell, would be alive today if the compliance directive had not been in place.

“Mrs. Berkley,” Cole said to the hushed room, “I know for a fact of an ironworker who is alive after a 30-foot fall. I don’t know one on a 60-foot fall.”

Like Berkley, other Nevada lawmakers have turned their attention to the Strip deaths.

Republican Rep. Jon Porter stopped by the hearing to tell the family that he was seeking additional federal funds for worker training in Nevada. “The safety concerns must be addressed by federal and state officials, as well as the contractors and workers carrying out construction,” he wrote in testimony submitted to the panel.

Senate Majority Leader Harry Reid sent a staff member to the hearing and will continue to monitor what he called a “disturbing” situation.

“Today’s hearing clearly illustrated that OSHA can and should do more to protect workers, particularly by enforcing existing law and accelerating the time it takes to implement rules,” a representative for Reid said.

Lawmakers at the hearing appeared to agree on that point.

But even so, making changes to OSHA is not going to happen anytime soon, they acknowledged after the hearing.

Woolsey, who originally organized the hearing and has sponsored a modest OSHA reform bill, called Tuesday’s proceedings “a dress rehearsal” that could raise public awareness and bring out new ideas.

“I think OSHA needs a complete overhaul,” she said in an interview after the hearing.

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