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September 20, 2014

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With little aid from expected allies, OSHA overhaul died

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Twelve construction worker deaths on the Strip, an outcry over weak safety enforcement by state regulators and a massive worker walkout captured the attention of state legislators over the past year, including the chairwoman of the Senate Commerce and Labor Committee and the Assembly majority leader.

But the Nevada Legislature’s response to the safety problems won’t approach the sweeping transformation seen in other localities — notably New York City — following construction deaths and the documentation of weak safety oversight.

After half a dozen hearings, two modest changes in workplace safety are making their way through the Assembly and the Senate. One would require construction workers to undergo 10 hours of safety training. The other would direct the state’s Occupational Safety and Health Administration to call family members of workplace accident victims after investigating a fatality.

Safety experts say the proposals could help address some of the problems here. But they fall far short of changes some originally envisioned.

“It’s just a matter of priorities and a matter of what can be done,” said Danny Thompson, executive secretary-treasurer of the state’s AFL-CIO, who has sat on an OSHA advisory board for more than a decade.

Thompson said unions are confronting more pressing priorities this session, including fending off public employee layoffs and salary cuts, and promoting workers’ compensation reform.

The story of why efforts at sweeping reform of workplace safety stalled at the state level reveals the difficulty legislators have of accomplishing change when the people most likely to push the issue and with the most expertise are focused on other matters.

•••

State Sen. Maggie Carlton grew alarmed last year, reading headline after headline about workers dying on the Las Vegas Strip.

“I was reading the stories of the families and I looked up at my husband over coffee in the morning and I said, ‘This is just flat-out wrong. People are dying on the job site and it seems like nothing is really happening.’ ”

The casualty that stood out to her was operating engineer Harvey Englander, who was crushed by a manlift in the second of five accidents that would kill six workers at CityCenter. During a settlement conference, Nevada OSHA deleted all the violations found at the construction site following Englander’s death.

In June, Carlton took note when workers walked off the job over alleged safety violations by contractors at CityCenter, the largest private commercial project in the country. They were led by Building and Construction Trades Executive Secretary-Treasurer Steve Ross.

“I thought, if he’s willing to take his guys out on a walkout over this, then this is really serious,” Carlton said. “We should be looking into this.”

A month later she submitted a bill draft to make “various changes to provisions governing occupational safety and health.” Her planned bill’s chances improved in November, when Democrats gained control of both state houses and she was named head of the Senate Commerce and Labor Committee.

Meanwhile, Clark County Commissioner Chris Giunchigliani had also become alarmed by the worker deaths and arranged a safety round-table with Ross, who is also a member of the Las Vegas City Council.

After speaking with Giunchigliani, Carlton figured a consensus would emerge form those sessions that could be proposed in her bill draft.

The group met once in June and again January, after getting snowed out in December. But a concrete policy proposal never emerged.

Ross had a different strategy, one that attracted the strong support of contractors and other union leaders, unlike Carlton’s efforts.

Ross said early on that he thought neither contractors nor OSHA held the key to safer construction sites. Instead, the key was to change the behavior of workers, and the cultural attitudes toward safety on job sites, he said. And the only way to do that was to require safety training.

“I thought, ‘What is going to change this is to change the safety culture and safety processes, and how craftsmen and women are thinking,’ ” Ross said in an interview last week. “We needed that message to be clear.”

At Ross’ request, Assemblyman John Oceguera, who became the Assembly majority leader, held a bill draft open that would require 10 hours of OSHA-certified safety training.

•••

Carlton, meanwhile, thought ineffective safety law enforcement by Nevada OSHA needed to be addressed. She became more convinced after learning that high-level officials at the Business and Industry Department had interfered with an OSHA investigation to reduce violations related to an accident at the Orleans that caused two fatalities.

At the time Carlton didn’t know a lot about OSHA.

Although she has studied workers’ compensation, an issue that is perennially addressed at the Legislature, workplace safety measures hadn’t come up since the late 1990s. Nevada OSHA is required to be at least as effective as the U.S. Labor Department’s OSHA, a situation that adds complexity to the issue.

Carlton was counting on labor groups with expertise in OSHA issues to come forward, as they often do to push OSHA legislation at the federal level. None did.

Carlton said she called Ross and left messages, but never heard back.

“I was like, ‘Wait a minute, you said this is a priority and you wanted to do something,’ ” Carlton said.

Ross said that except for newspaper reporters’ calls, he always returns phone messages.

Realizing she would have to write the bill herself, Carlton began cramming on workplace safety and putting an office extern on the subject.

In March, she challenged OSHA officials’ track record during heated testimony. She had expected union officials to testify at the hearing and to bring family members of workplace accident victims, but they didn’t show up.

Union leaders said their absence was due to a “miscommunication.” Family members who were interested in testifying said Carlton never reached out to them.

Union members, leaders and family members did speak at a hearing the following week.

They also made a strong showing at a hearing on Oceguera’s training bill around the same time. When Marcus Conklin, chairman of the Assembly Commerce and Labor Committee, asked those at the hearing if there were any objections to the bill, no one spoke up.

Behind the scenes, however, people were scrambling to sort out objections by OSHA officials, who thought the legislation placed too large a burden on the agency to regulate the training called for in the bill. Eventually the bill toned down mandatory involvement of OSHA.

It wasn’t until a Senate hearing weeks later that the objections were raised publicly by Northern Nevada contractors concerned that it would be too difficult to train so many workers so quickly.

The Assembly Ways and Means Committee has yet to vote the bill out of committee.

With no help forthcoming, Carlton realized she would have to take on the agency herself. She decided that removing OSHA from the Business and Industry Department and creating a stand-alone agency would address what she saw as problematic influence.

With a deadline approaching, staff lawyers used established language to propose placing OSHA under an existing body — the Review Board, which currently hears OSHA cases that have been appealed.

This wasn’t what Carlton had intended, but she didn’t have the time or expertise to create a stand-alone agency at that point.

Facing sure defeat, Carlton deleted the entire bill and added a provision intended to improve family members’ knowledge of the process. OSHA officials agreed not to object to that provision, unlike her other ideas, she said.

•••

People involved point to a combination of factors to explain why Carlton didn’t get more assistance. She didn’t reach out strongly enough to the labor community, some say. Others say that OSHA is too complicated a body to restructure in a single legislative session.

“Maggie took on the whole OSHA thing, which is huge to try to do,” said Giunchigliani, a former assemblywoman. “Making change in Carson City at one time is generally not going to happen.”

Carlton didn’t get as much help as she expected from the unions because they thought addressing other issues was more realistic and more pressing, Thompson said.

Another problem was that no one settled on a root cause of the problem to be fixed and how to best address it.

Ross thought training was the problem. Carlton thought more independent regulators would help.

Giunchigliani focused on administrative problems at OSHA, which she thinks are better addressed by the executive branch than by the Legislature.

“OSHA has not been advocacy-oriented and willing to go out and initiate changes as they can and should,” Giunchigliani said. “We need someone to come in with a different perspective. Unfortunately it’s the same old, same old, and until that culture changes you’re not going to have a fundamental change at OSHA.”

OSHA chief Tom Czehowski testified that the agency was caught off guard by massive Strip construction because it could not pay inspectors enough. As a result, the most qualified ones left the agency, he said.

Any request for more money this session would be a tough sell.

“If it costs money it’s probably not going to go this session,” Thompson said. “They’re talking about laying off schoolteachers.”

Yet, Sen. Randolph Townsend says the Legislature may yet see more OSHA proposals this session.

Townsend, a Republican, is a former chairman of the Senate Commerce and Labor Committee. He no longer sits on the committee and hasn’t been involved in the OSHA discussions this session, but he said last week he plans to introduce an amendment to one of the workers’ compensation bills that would require contractors on very large projects to pay for OSHA inspectors to be on site at all times.

He has not written the bill yet and acknowledged that it may end up instead requiring private safety professionals on the job site, which could have a different effect.

“The structure in place didn’t really accommodate for the kind of growth we saw in Las Vegas,” Townsend said.

Carlton said that in retrospect she wishes she had maneuvered differently. She would have started researching and writing legislation sooner if she realized she wasn’t going to get help, she said.

She, like Townsend, will be termed out of the next session. She hopes someone else will take on the issue.

“This was a team effort, and I didn’t have the team to get it done,” Carlton said.

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