Masonry Magazine January 1980 Page. 11
How Real A Threat?
Criminal Prosecution By OSHA
Under the Occupational Safety and Health Act of 1970
By JAMES T. PATTERSON
This article reviews the individual and corporate risk of criminal prosecution under the Occupational Safety and Health Act of 1970. Even though only four criminal prosecutions have been made by OSHA, there is still significant risk to the individual, particularly since "Miranda" warnings against self-incrimination may not be required during the initial phases of an investigation of an employee job-related fatality. Employers and those individuals within the corporation who possess the power to prevent or correct violations of the Act may wish to have an attorney present during questioning by an OSHA investigator when a fatality has occurred.
Section 17(e) of the Occupational Safety and Health Act of 1970 (Act) provides that: "Any employer who willfully violates any standard . . . or . . . any regulations promulgated pursuant to this Act, and that violation caused death to any employees, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both . . ."
Although the Occupational Safety and Health Administration (OSHA) has brought criminal prosecution only four times since the Act became effective in 1971, there are indications that this provision of the Act may be used more often in the future.
Criminal prosecution of any member of a construction company, regardless of the person's level of authority, would surely be distressing and counterproductive. In addition to the bad publicity and possible "black-listing" by owners, one can visualize that some firms might suffer crippling company-wide erosion of profits, due to the stress and anxiety such action would create among management and supervision.
Therefore, this issue seems worthy of discussion. This article will review the four criminal cases prosecuted by OSHA to determine what factors these cases had in common, and the question of the individual's right to counsel and his protection against self-incrimination will be reviewed.
A word of caution the writer is not an attorney and Reprinted with permission from the March, 1979 issue of Professional Safety magazine, official publication of the American Society of Safety Engineers. Copyright 1979 by ASSE. cannot substitute in any way for legal counsel. In dealing with OSHA, legal counsel is an absolute necessity.
Criminal Prosecution By OSHA
In U.S. v. Turcon Co., a fatality occurred as a result of a trench cave-in and prosecution was brought against the corporation and the president, individually. The action was based upon the fact that a citation for violation of a trenching standard had been issued three weeks prior to the fatality and that the president "was active in conducting and supervising construction activities at the time of the violations." Although the president was acquitted, the corporation was fined $5,000.
In U.S. v. Dye Construction Co., the trial court dismissed all counts against the president and two of the three counts against the corporation, leaving a corporate fine of $3.500.
In U.S. v. Pinkston-Hollar, Pinkston, a vice president, was supervising placement of roof insulation in high wind. An employee fell through a roof opening, but caught himself and avoided a fall to the concrete floor thirty-five feet below. The employee then warned Pinkston that protection against falls was necessary. Despite Pinkston's awareness of applicable OSHA regulations, work continued. Shortly thereafter, another employee fell through a roof opening and was fatally injured. The jury acquitted both Pinkston and the corporation on all counts.
In U.S. v. Crosby and Overton, two officers and the corporation were charged with four counts of willful failure to provide equipment and work practices necessary to enter closed tanks that contained toxic atmospheres. Two citations for failure to provide full protection had been issued previously. The District Court allowed a plea of nole contendere and handed down a sentence of four years' parole and establishment of a safety program. Concurrent civil action resulted in a penalty of $14,250 and an abatement order more severe than the criminal penalty.
Careful study of these cases reveals the following common factors:
* Each involved a construction company.
* Either "near miss" accidents or citations by OSHA had taken place shortly before the fatality.
* The individuals charged with criminal violations knew, or should have known, of the circumstances surrounding the fatality.
* The individuals charged with criminal violations had either the power to "stop the work" or the responsibil-
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MASONRY/JANUARY, 1980 11