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Lost Letter: How Government Fails to Deliver on Worker Safety

Tuesday, 18 October 2011 12:57 By Chris Hamby, iWatch News | Report
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By late 2009, workplace safety regulators had serious concerns about large mail processing centers across the country. Ongoing inspections suggested a widespread, recurring risk of electric shocks or burns from electrical explosions — hazards that have injured at least eight postal workers and killed one over a decade.

A federal inspector’s findings at a massive processing center in Philadelphia in December 2009 reinforced the agency’s worries: There, too, the U.S. Postal Service had failed to provide employees working on dangerous electrical equipment the proper tools, safety gear and training.

But when the federal inspector presented findings to local managers at the plant, they weren’t surprised. Just months earlier, the same agency, the Occupational Safety and Health Administration , had also noted electrical safety issues — and certified the center as among the nation’s safest places to work.

Within a year, the same agency had bestowed its highest honor on the site — “Star” status as a “model workplace” worthy of exemption from regular inspections — and cited it for four “willful” violations of safety standards — the most serious category of offenses the agency can allege.

The apparent contradiction reflects a fundamental tension within the agency responsible for protecting the nation’s workers. With one hand, OSHA encourages companies to comply with safety standards through cooperative programs between employers and regulators. With the other, the agency enforces the law through inspections and penalties.

In theory, the two approaches should rarely collide. Truly exemplary workplaces shouldn’t need strong enforcement. But an examination by the Center for Public Integrity’s iWatch News has found instances of preventable accidents at OSHA-certified “model workplaces,” sometimes leading to deaths, citations and penalties. Since 2000, at least 80 workers have died at “model workplaces” OSHA considers the nation’s safest and exempts from some inspections. Yet the sites often retain their status and freedom from routine inspections. While the government sends mixed messages, workers are caught in the middle.

Nowhere is the tension between approaches more pronounced than in the relationship between OSHA and the Postal Service, an independent federal agency that employs more than half a million people and has been resisting remedies urged by OSHA in a standoff that has spiraled into a full-blown legal dispute. The Postal Service, the nation’s second largest employer, has more locations in OSHA’s “Voluntary Protection Programs,” as the self-policing program is known, than any other U.S. employer. It's also the only employer OSHA has challenged in an administrative court over organization-wide safety concerns.

“It’s kind of schizophrenic to go in there and approve them to VPP, then turn around and hit them with willful violations,” said retired inspector and OSHA official David Martin . The agency “should be saying, ‘We’re sorry we missed those problems ourselves, and we’re partially complicit.’”

VPP has grown rapidly during the past decade despite warnings from government auditors that quick expansion could compromise the program’s quality. No employer has seized on the program’s expansion more than the postal service. Though some of the largest companies — including General Electric, Monsanto and Georgia-Pacific — have added large numbers of VPP sites , none matches the Postal Service, which now has about 130 “model workplaces.”

But regulators say that, even as scores of Postal Service sites were being admitted to VPP, postal managers were aware of serious electrical hazards at processing centers but did little to protect employees for at least five years. In 2010, the Labor Department — OSHA’s parent agency — took an unprecedented step, filing a complaint against the Postal Service in an administrative court and alleging in its legal filings that electrical safety problems persist at all of the Postal Service’s roughly 350 processing and distribution centers, 22 of which are “model workplaces.”

The case is based in part on a recent enforcement blitz in which OSHA found similar violations at mail processing centers across the country. This barrage of inspections included three VPP sites, which received either “willful” or “repeat” violations for electrical safety problems.

Much of the agency’s concern is with the lack of tools, safety gear and training for employees working on equipment that sorts and moves mail. The biggest threat: a relatively infrequent but potentially devastating type of accident known as an “arc flash” — essentially an electrical explosion capable of causing severe burns. It could occur during a number of daily tasks, such as working on electrical cabinets, and the potential triggers are many, including faulty equipment or improper tools.

On top of the electrical safety problems, records show that OSHA suspects the Postal Service fails to report some instances of workers being hurt on the job. “OSHA believes that under-recording of injuries and illnesses may be a pervasive problem at the USPS,” agency head David Michaels wrote in a letter to the Postal Service’s safety director in January.

If true, the accusation has implications for Postal sites seeking to remain a “model workplace.” Members of the voluntary protection club must demonstrate low injury and illness rates to qualify and retain membership.

Representatives from the postal service’s national office declined repeated interview requests. Instead, the Postal Service provided a brief statement noting its high number of VPP sites and generally defending its record and commitment to safety.

“The Postal Service places the safety and well-being of its employees as a top priority,” the statement from USPS spokesman Mark Saunders said. The Postal Service has recently invested in some training and safety gear as part of its new electrical safety plan, Saunders said.

In a legal filing , the Postal Service has denied violating safety standards and said it isn’t true that similar problems exist at all processing and distribution centers. Further, it has accused OSHA of overreaching in seeking to force corrective action nationwide and violating the Postal Service’s “due process rights.”

Some remedies, the Postal Service said in filings with an administrative court, may be “impossible or infeasible.”

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One reason could be the Postal Service’s ailing financial condition. It is losing billions of dollars every year. But postal officials declined to explain to iWatch News what might stand in the way of making the remedies urged by OSHA.

Jordan Barab, OSHA’s No. 2 official, told iWatch News that the Postal Service “has been in denial.”

Yet despite the legal conflict and assertions of systemic hazards, the Postal Service remains the top participant in OSHA’s most prestigious recognition program.

Three weeks after iWatch News sent detailed questions about the Philadelphia facility to OSHA, the agency booted the site from the Voluntary Protection Programs. Another postal site that was cited recently for electrical safety problems, in Des Moines, Iowa, has voluntarily withdrawn, while a third, in Baton Rouge, La., remains a “Star” site.

As many as 22 others are likely to have problems similar to those in Philadelphia, OSHA alleges, though the facilities have not been inspected.

Altogether, about 130 facilities remain VPP sites exempt from regular inspections.

Orders from above

As OSHA rapidly grew the ranks of VPP sites, the Postal Service proved an eager partner. In 2005, it became the second employer to join a new initiative, known as “ VPP Corporate ,” that allowed an entire organization to be certified, then receive streamlined applications at its individual workplaces.

Announcing the Postal Service’s addition to this select group in June 2005, acting OSHA Director Jonathan Snare said, “The continued commitment to the safety and health of the entire USPS workforce is truly exemplary and worthy of emulation by other corporate entities.”

For OSHA, more sites meant more potential “Special Government Employees” — not government workers at all, but safety specialists with companies already in VPP. By joining in large numbers, the Postal Service became a primary contributor of these deputized evaluators.

“OSHA relied very heavily on those because they could get away with a very thin OSHA staff on the site evaluation team,” Martin said. At the same time, the agency cut the number of staffers dedicated to the office responsible for VPP.

Employers perceive benefits to VPP, too. Besides exemptions from routine inspections, participants often point to lower injury and illness rates, reduced workers’ compensation costs and better job applicants. VPP is also good publicity.

One of the first locations evaluated under the streamlined corporate program was the processing center in Philadelphia. Evaluators in 2005 gave managers 90 days to remedy 27 issues, including some related to electrical safety, then approved the site as a “Star.”

In a statement, the agency recently admitted that, though the electrical safety problems were supposed to have been fixed in 2005, some were still present four years later, in April 2009, when OSHA officials returned to the site for a scheduled re-evaluation.

Those evaluators placed the plant on a “ one-year conditional status .” If it made some improvements — such as better oversight of contract workers, identification of hazards and employee training — it could remain a “Star.”

The Postal Service agreed to provide quarterly updates on its progress toward fixing the problems. But internal OSHA emails obtained by iWatch News show that, during the following months, an agency official struggled to get information from the Postal Service on how, or even whether, it was addressing these problems.

Meanwhile, union officials lodged a formal complaint about the site with OSHA, triggering the kind of inspection even members of the voluntary protection club can’t avoid. The inspector, visiting in December 2009, found that workers “were regularly exposed to electrical shock and burn hazards” because they didn’t have the proper tools, protective gear or training. OSHA issued four “ willful” violations — reserved for the most serious cases, in which inspectors determine an employer intentionally violated safety standards or acted with “plain indifference” toward them — and a $210,000 fine; the Postal Service is contesting all of the violations.

Managers at the processing center told the inspector the electrical safety issues already “had been discussed in detail with OSHA representatives during this site’s VPP recertification process early in 2009,” according to the inspection report.

The bosses wanted to be cooperative, the report notes, but there were orders from above.

“The management for this facility and district stated that they had been instructed by their national office to wait until a national policy had been developed, approved and distributed before acting independently on any apparent hazards addressed during the inspection,” according to the OSHA report.

By that time, a national policy had been in the works for more than five years.

Eight injuries, a death – and delay

Widely accepted standards address the hazards noted at Postal Service locations such as the Philadelphia mail processing center. Those standards, developed by the National Fire Protection Association and known as NFPA 70E , call for identifying risks and guarding against them with tools and training, among other things. The association developed the original version in the 1970s at OSHA’s request, and OSHA often cites the document as standard industry practice. “People are at least trying to comply with it at this point,” said Joseph Weigel, an expert on the hazard and an independent consultant who helps companies comply with electrical safety rules.

But not the Postal Service. A 2006 memo obtained by iWatch News shows that the mail system’s national office told managers across the country not to conform to these standards. “Do not expend funds on any NFPA 70E training or consulting activities,” the memo instructed. Wait until headquarters has developed its own standards.

In the meantime, the Postal Service took no interim steps to protect workers, even as the process of developing a new policy dragged on for years, the Labor Department now says in a legal filing.

According to the complaint filed in 2010 by the Labor Department, electrical hazards have had serious consequences for some postal workers: Since 2000, at least eight employees have been injured by an arc flash, an electrical explosion that can cause serious burns. Another postal employee with no electrical training died after being electrocuted, and OSHA issued notices of “serious” violations.

Concerned officials with the American Postal Workers Union tried for years to reach some agreement with postal managers to address the electrical safety concerns. “We got to the point where it was clear that wasn’t going to happen,” said Corey Thompson, the union’s national safety and health specialist.

At the national office’s urging, union officials across the country flooded OSHA with complaints. Because OSHA’s resources were limited, the union worked with regulators to identify 28 postal sites that were priorities for inspection. Three were VPP sites; one of them was the Philadelphia mail processing center.

“This is concerning me,” Al D’Imperio, OSHA’s area director in Philadelphia, wrote of the large processing center in a February 2010 email to other agency officials. A few months later, the findings from the December 2009 inspection were released, and D’Imperio had grown more alarmed.

“I do not want the [Philadelphia postal] site to be considered as a VPP site,” he wrote, noting the serious electrical hazards uncovered by the inspection.

The next day, OSHA’s regional administrator asked managers at the Philadelphia center to withdraw voluntarily from VPP while noting that, if OSHA had to terminate the site, it would be prohibited from reapplying for three years.

The agency generally asks members to withdraw first, rather than immediately stripping “model workplace” status, to give them time to reassess safety programs and reapply in a year.

The plant manager refused in a three-sentence letter . “The Postal Service Byberry Road NDC respectfully declines to withdraw voluntarily,” the manager wrote.

After another couple of weeks, OSHA’s VPP manager tried again in an email: “Keep in mind that by voluntarily withdrawing at this time and working on the VPP elements, your site will then be able to submit an application in one year which we would be glad to consider.”

It wasn’t long before another letter arrived from the plant manager, this one two sentences long. “Again, we respectfully decline to withdraw from the VPP Program,” he wrote.

In April 2011, OSHA finally kicked the site out of VPP. The decision came more than six months after the agency first asked the site to voluntarily withdraw — and three weeks after inquiries to OSHA about the site from iWatch News.

Widespread hazards

Overall, inspectors have found similar violations at more than 30 Postal Service sites. In most cases, OSHA found, the Postal Service failed to provide its employees the proper tools, protective gear and training for working on potentially dangerous electrical equipment.

In many cases, the agency deemed the violations “willful” or “repeat.” The Postal Service has contested most of these citations.

As these inspections were beginning, the Postal Service released the long-awaited revisions to its electrical safety practices in the form of a management instruction issued in December 2009 and a management maintenance order issued in February 2010.

But to OSHA, they didn’t go far enough. In July 2010, the agency filed what’s known as an enterprise-wide complaint , saying the revisions “fail in significant respects to ensure compliance with the requirements of the electrical safety-related work practices standards.”

OSHA has asked the administrative court to force the Postal Service to provide its employees with the proper training and protective gear, to comply with the agency’s electrical safety standards and to conduct electrical safety inspections and report to OSHA annually for the next five years.

In a court filing, the Postal Service denied that electrical safety problems exist at all of its processing and distribution centers. And it argued that the commission can’t force fixes at sites that haven’t been inspected and, therefore, can’t compel changes at all processing and distribution centers.

One reason for the Postal Service’s reluctance to remedy safety issues at its facilities could be finances. The nation’s public mail system, perennially in financial straits, announced major cuts in September amid intense debates over government spending, the impact on delivery schedules, worker benefits and competition from the private sector. Among the potential effects of the cuts: closing some processing centers.

Private safety analysts such as Weigel estimate the cost could run as high as $300,000 for each mail processing center to comply with electrical safety standards.

While OSHA has put a hold on adding processing and distribution centers into VPP, it hasn't halted approvals for Postal Service sites generally. The Postal Service no longer enjoys organization-wide certification, but sites that already have VPP status can keep it.

Despite the ongoing legal battle, no other employer can boast that it has more “model workplaces.” The contradiction, said Adam Finkel, a former OSHA administrator who is director of a University of Pennsylvania program on regulation , “does kind of boggle the mind.”

Key findings:

  • Since 2000, at least 80 workers have died at “model workplaces” OSHA considers the nation’s safest, and which it exempts from some inspections. In 47 of these cases, inspectors found serious safety violations and, sometimes, tragedies that could have been averted.
  • Even when workers die and inspectors find safety violations, “model workplaces” often face minimal consequences and retain the special designation. At least 65 percent of workplaces where a fatal accident occurred remain in the “Voluntary Protection Programs” today.
  • Though OSHA has targeted dangerous industries for special enforcement programs, “model workplaces” are exempt from even these inspections.  Over four years, at least seven people have died in one of these hazardous industries facing added scrutiny: oil refining.
  • Two arms of OSHA — one that elicits cooperation with industry, the other that enforces the law — sometimes reach strikingly different conclusions about the same workplace, highlighting a fundamental tension within the agency charged with protecting the nation’s workers.
  • The Postal Service has the most “model workplaces” of any U.S. employer, yet OSHA is engaged in an unprecedented legal fight over what it says are systemic safety problems, including knowingly exposing workers to potentially deadly electrical hazards for years.

About this series:

Over eight months, the Center for Public Integrity’s iWatch News examined the nation’s “model workplaces” and the fatal lapses that sometimes led to workers’ deaths. This series of stories relies on thousands of pages of government documents and inspection reports; multiple databases of the federal Occupational Safety and Health Administration; and interviews with current and former OSHA officials, union representatives, company officials, accident victims’ families and workplace safety and health experts. Among the challenges in piecing together the story of OSHA's Voluntary Protection Programs: The agency's inconsistent injury and illness records, incomplete data on fatalities, and heavy redaction of case files obtained under the Freedom of Information Act.

These stories were written and reported by Chris Hamby.


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