Testimony of Donald Coit Smith
Senate Committee on Health, Education, Labor and Pensions
April 29, 2008
Good morning Senators and thank you for having me at this hearing.
My name is Donald Coit Smith. My official title is the Division Safety Manager
for a polyurethane manufacturer with responsibilities for manufacturing plants in
Texas, Oklahoma, and Colorado. This function I’ve held for over 19 years, with 30
years in the manufacturing field altogether. My specialties include inspecting and
investigating to OSHA standards.
I also have the title of father to a son killed on the job.
Section one
I will begin by addressing my experiences with the Occupational Safety and Health
Administration from the employer standpoint. Having been through several OSHA
inspections, planned and otherwise, the courtesy and professionalism of those
inspectors have been exemplary. I can safely say with reasonable accuracy that the
knowledge gleaned from those inspectors has been a worthwhile activity. While
reading the code of federal regulations can be sometimes tedious, if not altogether
aggravating, the times I’ve needed interpretations has been met with understanding
and patience. I think a salute to those men and women is in order.
I have unfortunately seen citations and fines issued in some of our plants for
various things, none of which were major but nonetheless were citations, and are
what I consider violations of the law. Those violations were abated post haste,
documents drafted reflecting the abatements, and a plea entered for immediate
withdrawal of all fines levied. In all cases that I remember, every fine was reduced
at least by half and some altogether dismissed.
This “process” is what was explained to me by my mentor as the proper way to
deal with OSHA.
But I did not understand why these reductions were so easy to attain. I attributed it
the good nature and “helping hand” of those inspectors in their willingness to
“settle” the account with the least possible effort. I also came to the opinion of
viewing it as a possible revenue-generating function of the agency. To this date, I
am still uncertain of the motivation to settle for less.
I spoke of fines for citations. In my opinion, what the fines represent is called a
“cost of doing business” among corporate America. The pittance remitted for those
fines seem, well pretty much just that... a pittance... or maybe more adequately
stated, a nuisance settlement. I do not say they aren’t justified, but rather the
standpoint of OSHA as I’ve experienced is not one of grit but one of pacification
and conciliation. On the OSHA website the mission statement in part is as follows:
OSHA's mission is to assure the safety and health of
America's workers...
Let’s look at the word “assure” closely. Webster’s says it is to “make certain.”
Senators, OSHA doesn’t make certain of anything from what I’ve been through. If
I had to change one thing that could make a profound difference in OSHA, it
would be to make fines and punishment so severe that employers would tremble at
the thought of violating the code.
SECTION TWO
I told you at the beginning that my second title is father to a son killed on the job. I
do not possess the capacity to adequately describe the horror that possesses my
soul from my son’s death. To lose him caused me to reflect on faith in my God. I
still to this day have issues with Him over my loss. However, I have come to
believe He took him for a reason of His own, possibly to foster events that led me
to being here today. To this I must yield to a higher authority and is why I do what
I do. I have a mission. That mission is to do what it takes to strengthen the law that
will prevent what happened to my son from happening to anyone else. Looking at
the statistics on America’s job deaths, you’ll see that about 6,000 people die in
America from job-related activities each year. That is a figure that is 6,000 too
many.
You know that I’ve dealt with OSHA from the employer standpoint, but let me tell
you that dealing with them from a parent’s standpoint is dreadful. I have been met
with resistance at virtually every corner I’ve had to turn. It started with the
inspection of the death facility and getting information on the why and how of my
son’s death. I’m not talking about the fact that he was electrocuted...that was
obvious. But how could this have happened? And why weren’t the events that led
up to his death avoided? In my study of the situation from the information I’ve
obtained, the root problems that surfaced were really simple and stood out. A blind
man could see them in a minute.
There was no commitment. There was no deterrent.
There were citations issued to the offending company by OSHA on my son’s
death. The original set totaled seven... all within 29 CFR 1910.147, which is the
OSHA lockout regulation.
After the well-versed and experienced OSHA inspector painstakingly reviewed the
case, making absolutely sure what he was indicating were true violations of federal
law, the lawyers for OSHA and the offending company got together and
“negotiated” out all but two citations.
The original 7 citations called for a combined penalty of $31,000 with two of the
seven citations not having any amount assigned. In the end, a fine of $12,000 was
paid. It is interesting to note that, according to the OSHA website, one of the
original 7 citations that had zero dollars assigned was placed at $7,000 in the end,
but the violation summary has the total penalty at $5,000. If I hadn’t seen the pay
off check with my own eyes I wouldn’t know for sure myself.
The one thing I know for sure is that my son died and there was nothing I could do
about it. The laws of this nation couldn’t protect him. Fear of violating OSHA
standards couldn’t protect him. The value for human life couldn’t protect him.
How do the OSHA penalties given out for my son’s death affect me? Well, frankly
mad doesn’t describe it. And every American should be mad as well. The system
I’ve worked in for all these years, of which I had great faith, seems to have literally
bargained his life. For one thing the penalties are no real incentive for compliance.
As I said, the penalties are a “cost of doing business,” What makes matters worse,
if it can be, is the workers comp system which allows the state and the insurance
industry (at least in Texas) to benefit from his death. Now to me that’s just morally
wrong. But that’s another issue I’m working on.
SECTION THREE
My presence here is two-fold. To let you know how frustrated I am about OSHA’s
role in prevention of injury in the workplace and to urge you to do whatever it
takes to get this job death atrocity under control.
I would suggest placing severe penalties, both monetarily and criminally, on
operations violating federal standards where job deaths occur. Current legislation is
not a deterrent. Any review of the topic will show too well how little attention is
paid to it.
SECTION FOUR
Excerpt from The Family Bill of Rights: Item 5
Family members should have the opportunity to interview co-workers and
management that have knowledge of the facts of the case and any signed
affidavits should be submitted, obtained, and applied by OSHA during
investigations.
“In viewing what is “right” and what is “wrong” with how families are treated in
job related deaths, I believe one must look at our current laws. To the naked eye it
is obvious the law favors corporate America with regards to keeping information
hidden. A closer viewpoint reveals just how this is done. All OSHA documents and
local law enforcement investigations are kept from families’ eyes (in part) via the
Freedom of Information Act. This includes “negotiations” and OSHA/company
meetings, even though families follow procedures in filing documents to have
access to these meetings. Seems as though, at least in my case, OSHA was not
willing to follow the law and no one was there to make them. While securing
production secrets for the good of the company is important to lever any market
advantage, when items are covered that would lead to revealing criminal- type
actions, the whole legal system (and those who made the law) should be revised.
Part of that revision should be allowing families of workers killed on the job
access to ALL information available, including negotiations and
meetings/correspondence. Even investigating law enforcement is blocked from
getting this part (ref: Bell County Sheriffs Office).
However, all this is virtually meaningless unless something is done to allow
successful prosecution of negligent employers. Right now the only avenue is
“gross” negligence and that is akin to the employer holding a gun to the
employee’s head and pulling the trigger. I believe what is happening in this
country is just that... only the employer’s gun is their apathy and greed. And the
law protects them!
Now at some point OSHA will render its investigation “public” but that is only a
very small and insignificant document redacted to be almost useless. One can read
the citations on the Web. This document does not have the interviews and reasons
why OSHA “fines” are levied. These interviews go deeper to the root cause of job
deaths. They can point to individuals and company policies that contribute/cause
the job death. But let’s review: the law protects these people. If a company is a
subscriber to workers comp, they are untouchable and unless OSHA proves “gross
negligence,” federal law keeps them safe. The maximum penalty for gross
negligence? A fine and six months in jail (for someone... and you can bet it’s not
the boss).
I will sum with the viewpoint of parents of dependents killed on the job. Unless
laws are changed to allow prosecution and legal actions to be filed by parents
outside of workers comp, protection, we will continue to see job deaths on a
regular basis. But knowing exactly what happened to their loved ones is important.
Just the knowledge may help. Allowing this knowledge to escape government/legal
cover up is a step in helping families of workers killed on the job cope with their
loss.”
SECTION FIVE: CLOSING
Thank you very much for this opportunity to have input and, in closing this
address, I’d like to leave you with what I’ve told my sons each time we part.
To them I say: “te amo, mi hijos.”
And to all of you here I say:
May God bless you and may God bless America.
Donald Coit Smith