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No Incentive for Safety

[ 85 ] May 22, 2014 |

One big victory for corporations in recent years is keeping OSHA fines so low that their trivial cost makes fixing safety problems not worth the effort. Of course this has a predictable cost:

Twenty-eight-year-old Daniel Collazo was nearly done with his shift cleaning machines at the Tribe hummus plant in Taunton, Mass. when other workers heard his screams.

Collazo had become caught in the rotating screws that blend the hummus and struggled to free himself as slowly-winding 9-inch blades kept turning, crushing his arms and part of his head, according to public records. His co-workers dashed to cut the power and desperately tried to untangle Collazo from the machine.

Despite their efforts, Collazo died in an ambulance on the way to the hospital. But the horrific Dec. 16, 2011, accident could have been prevented had the plant followed a standard safety practice known as “lock out/tag out.” It requires employees to be trained to cut power to industrial machinery before cleaning activities begin.

OSHA had visited this factory and found the working conditions outrageous:

Two years before Collazo was killed, federal officials fined the owner of the Tribe plant for failing to follow the safety procedure at another of its New England food processing plants. Tribe’s own consultant had warned that failing to train cleaning workers in lock out/tag out created “an extreme safety risk,” records show, and said “the probability that a fatality could occur is likely certain within a year’s timeframe.”

OSHA fined Tribe $9500 for those violations.

Tribe thought at that price there was no reason to fix the problems. Now they were fined $450,000 upon Collazo’s death, but you can see why they would take that risk since the managers no doubt didn’t think someone would actually die. What is $9500 for a subsidiary of Nestle? Pocket change.

I did like this:

Since Collazo’s death, Tribe has hired a new chief executive, Adam Carr, who has sought to increase the company’s visibility. Tribe finished paying its OSHA fines in April and has embarked on a new marketing campaign: “Hummus made with love and chickpeas.”

The secret ingredient is the blood of dead workers.

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  1. “OSHA fined Tribe $9500 for those violations.”

    Boy, I’m surprised that that didn’t learn ’em!

    “Tribe finished paying its OSHA fines in April and has embarked on a new marketing campaign: “Hummus made with love and chickpeas.”

    Uhm, shouldn’t that marketing campaign be, “Hummus made with real humans and chickpeas”?

    Then you wouldn’t just get the Liberal market with the chickpeas, you’d get capture the Conservative market with the “real humans!”

    WIN-WIN!!!

  2. Bloix says:

    A big part of the problem is the outdated workers comp system, which bars employees from suing employers for negligence in exchange for a fixed payment regardless of fault. When workers comp was introduced it was a huge progressive step forward, because it guaranteed that an injured worker would receive some compensation, but the amount of the payment has not kept pace with inflation or modern expectations about the value of a workers’ life.

    In Massachusetts, the payment is $4000 for burial, plus, if the worker had a spouse or dependents, 2/3’s of the worker’s wages up to a max of 250 times the state’s average weekly wage, which this year is $1,181.28 – so no more than about $300,000, paid out over perhaps 7 years.

    That’s very low compared with what a jury would have awarded for the pain and fear, and the lost wages and loss of consortium, to a married man with dependents killed in this kind of accident.

    • Erik Loomis says:

      As I’ve stated before, the AFL opposed early workers’ compensation laws because it limited the ability of workers to sue their employers for accidents. In the early 20th century, courts were moving away from the doctrine of workplace risk and granting workers significant settlements. It was companies freaking out about this that led to workers comp plans that paid workers nowhere near what they would have made at work.

      • rea says:

        What you miss, is that lots of these cases don’t work in a fault-based tort system, even without the “assumption of risk” rules that used to bar them in the 19th Century, and evenwith modern comparative negligence instead old the contributory negligence rules that were in place in most jurisdictions back before the 1970’s.

        In the Daniel Collazo case, what happened was that the employee screwed up and got killed. Now, you can argue very persuasively that the employer should have trained him better, and should have had rules and enformcement in place to try to prevent these kind of screwups, but the tort system is inevitably going to treat Daniel Collazo’s mistake in not turning off the pwer before cleaning the machine as the most significant act of negligence causing the accident. Gving Daniel Collazo’s heirs a negligence remedy sounds great only if you don’t allow for the probability that they lose the case and get nothing.

        The worker’s compensation system instead recognizes that fallible humans are going to make mistakes, and treats insuring against these inevitable accidents as a cost of doing business, without regard to fault. That’s a better system, although many of the compensations sytems we have now (1) ought to pay more, and (2) ought to have workable provisions for tort actions in addition to worker’s compensation in the event of intentional and quasi-intentional torts (arguably such as the Daniel Collazo case, where the employer was wilfully disregarding safety rules)

        • Erik Loomis says:

          I’m not saying we should eliminate the workers’ compensation system. I am saying why labor opposed it in the 1910s. And I’m also saying it exists at least as much for employers’ interests as for workers.

        • cpinva says:

          this would be exactly the negligent act of the employer, ultimately leading to a fatal, easily preventable accident. collazo’s actions, unless done with intent to cause harm, are irrelevant, because the company failed to train him properly to begin with.

          “Now, you can argue very persuasively that the employer should have trained him better, and should have had rules and enformcement in place to try to prevent these kind of screwups,”

          it wasn’t mr. collazo’s job/responsibility, to ensure he received the requisite training, it was the employer’s. again, absent intent to cause harm on mr. collazo’s part, the employer is ultimately responsible, for any harm, caused to any employee, for the employer’s failure to provide required training and equipment, no matter how much they whine about “contributory negligence”. that’s why company execs make the big bucks.

          • rea says:

            I’ve litigated quite a few of these cases, on both sides, in the context of the “employer intentional tort” exception. I did one in particular that bore a strong resemblence to this one, although it was well drilling equipment rather than hummus manufacturing equipment that was at issue in my case (but still, rotating screws). But the point is, everyone can easily see that cleaning these machines with the power running risks disaster. It would be surprising if Collazo didn’t understand that, at least in an abstract, theoretical way. But this sort of safety issue is not something that’s solvable simply by making sure everyone knows what is dangerous and trusting them to make the right decision. Experience shows that employees will violate inconvenient safety rules unless they are coercively enforced by the employer. But it’s hard to prevai in a ngligence action if your theory is that the defendant failed to make you act safely.

            • cpinva says:

              I can see that, but that’s a different issue entirely,:

              ” But it’s hard to prevai in a ngligence action if your theory is that the defendant failed to make you act safely.”

              failing to make you act safely, vs failing to provide you the legally mandated training & tools, that would enable you to act safely.

              I can harangue you all day long, in an effort to get you to act in a safe manner, but if I fail to provide you the training & tools necessary to do so, I’m wasting my breath.

    • dave says:

      I’ve always felt that workers compensation should be an optional route for an employee. Comp payments are not really supposed to be punishment or deterrent for employers, they are supposed to make up for lost wages to due workplace injury.

      The big benefit to Comp is that you don’t have to prove negligence. You just have to prove you were hurt at work. It makes sense to me that your recovery should be smaller in the absence of negligence.

      However, if you think you can prove negligence you should have the option of suing your employer in court.

    • Brian says:

      This case seems to me to be one where criminal penalties could and should be applied both to the company and to the responsible individuals. OSHA very seldom invokes criminal penalties, but when plant officials deliberately ignore a violation specifically brought to their attention by OSHA and by a private consultant, and their indifference leads to a man’s death, they should be prosecuted.

      There’s a cliche about having “skin in the game.” Daniel Collazo had skin in the game, but the worst thing that can now happen to the plant managers is that they lose their jobs. If they knew that failing to implement OSHA’s recommendations might get their sorry asses sent to jail, I’ll bet they’d have implemented lock out/tag out within hours of the citation.

  3. Warren Terra says:

    Could someone knowledgeable about the subject explain why power isn’t cut to the machinery before the worker starts cleaning it? Every piece of machinery I’ve ever used in the home insists that power sources be removed prior to cleaning or servicing. I mean, it’s good that other workers are supposed to be able to cut the power, but shouldn’t that be moot?

    • Erik Loomis says:

      I obviously can’t speak to this particular factory, but I can say that employers have always resisted cutting power for cleaning because of its reduction in efficiency since for many integrated systems, you’d have to shut down an entire assembly line for this purpose. But again, that’s a general statement and I don’t know about this hummus factory.

      I do think I should drive up to Taunton and take a picture of the factory. Seeing sites where terrible things happen have power, even if it’s just the outside of a building.

      • Bitter Scribe says:

        Lock out/tag out* is now a standard feature for most industrial machinery. IOW, it’s designed so you can cut the power to that one machine without affecting the power supply to others.

        The problem is, a lot of operational machinery doesn’t have LO/TO because it’s too old. (This is especially true in food processing, where they tend to keep machines running until they almost literally fall apart.) OSHA could require retrofitting, but that would, of course, cost money.

        *If anyone cares, “lock out” means no one can turn the machine on. “Tag out” means you can turn it on only through a coded keypad.

        • njorl says:

          “Tag out” originated with electricians cutting power at the circuit breaker and putting a tag on the switch or breaker box. You couldn’t reset the breaker without cutting the tag off, and only the person who put the tag there was supposed to be allowed to cut it off.

          If you cut someone else’s tag, even if there was no injury, your name was dirt. No one would ever work with you again.

          • Chuchundra says:

            That’s what tag out means at my job, although we use a lock and a tag whenever possible.

            Removing someone else’s tag, without following the proper procedure for doing that, means you’re escorted off site immediately and invited to find new employment.

            Running a safe workplace requires not just training and commitment, you have to be willing to discipline the workers who violate the safety rules because, sure as shit, some idiot is going to violate them so he can get the job done and knock off early.

          • Rhino says:

            I have physically restrained someone from cutting off a lock in exactly this situation. The individual complained to the foreman, who told me I should have ‘blacked both his eyes’, and proceeded to fire the moron.

            Lock out and tag out are taken incredibly seriously in the skilled trades, so most of our accidents of this type are from people not locking out in the first place. Just a few weeks ago an electrician died in my area because he neglected to lock out.

            • Herbal Infusion Bagger says:

              I thought lock-out-tag-out came from the petroleum/petrochemical industry to avoid incidents during shutdowns from a valve being opened when the receiving line was open for repair. You learn something new everyday.

          • Lurker says:

            And if it is done well, the lock is personal. The key is only held by the person doing the work. The spare key is sealed and located in some cabinet in an office behind a secretary who doesn’t belong to the maintenance organization, so it is unavailable for practical purposes.

          • dsn says:

            In the Fire Dept we were trained that after you killed the utilities (say for an elevator rescue), you locked a padlock across the lever and gave the key to your officer. If multiple crews are working, there is a device that allows you to attach multiple locks, so that the power cannot be restored without all the keys from all the crews.

      • Jeff R. says:

        There’s a photo on the front page of the Boston Globe today. Here’s a link to the story on the Globe’s website: http://www.bostonglobe.com/business/2014/05/21/worker-death-hummus-maker-willfully-ignored-safety-stands-osha-says/OxFU0kIuBY9R0dBuyF8t0I/story.html

      • joe from Lowell says:

        I do think I should drive up to Taunton and take a picture of the factory.

        You know what you’ll pass on your way, if you take Route 140?

        The Myles Standish Industrial Park.

      • peggy says:

        Boston Globe photo of the factory

        The Tribe logo sign will allow me to never buy from that company again.

    • Nobdy says:

      had the plant followed a standard safety practice known as “lock out/tag out.” It requires employees to be trained to cut power to industrial machinery before cleaning activities begin.

      So I think this is exactly what “lock out/tag out” is, and Wikipedia confirms that. So…ummm…power SHOULD be cut. That was the exact failure in this case.

      • Warren Terra says:

        I read it as meaning the crew had to be trained so they knew how to cut the power, should it become necessary for them to cut the power – not trained always to cut the power.

        • J. Otto Pohl says:

          But, it would seem cutting the power first before cleaning would be the best option and should be mandatory. Otherwise there is apparently a fairly high risk of somebody getting an arm caught in the moving blades. In this case it caused a fatality. Making hummus should not be a life endangering job.

        • Nobdy says:

          It was poorly phrased in the original article, but here is from Wikipedia

          Lockout-tagout (LOTO) or lock and tag is a safety procedure which is used in industry and research settings to ensure that dangerous machines are properly shut off and not started up again prior to the completion of maintenance or servicing work. It requires that hazardous power sources be “isolated and rendered inoperative” before any repair procedure is started. “Lock and tag” works in conjunction with a lock usually locking the device or the power source with the hasp, and placing it in such a position that no hazardous power sources can be turned on. The procedure requires that a tag be affixed to the locked device indicating that it should not be turned on.

    • Larry Lennhoff says:

      The linked article says

      Gabriel Collazo, who had left his job at Tribe by the time of his brother’s death, said the augers his brother cleaned were often in operation because it made it easier to loosen and hose away caked hummus on the machine.

      • jim, some guy in iowa says:

        this is a large part of the problem. (sometimes it’s easier and more effective) to do things the unsafe way

        not to be ancedotal, but a farm does have a lot of these kind of things. so to say someone is straight-up stupid and/or evil to do something the unsafe way is missing a point

        (part of why I don’t like to have outside help- one thing to fuck myself up but a wholly different thing to have responsibility for someone else getting fucked up)

    • brenda says:

      I work in a related industry and lock out/tag out is fucking basics. And carries virtually no additional cost except for some training and oversight. There is NO conscionable reason to not adhere to this. Totally unnecessary risks with predictable consequences.

    • rea says:

      Very often, it’s because it’s a human thing to take silly risks to avoid momentary inconvenience. Why do people ride in cars without fastening their seatbelts?

      • Ahuitzotl says:

        Because seatbelts jam in an accident and you get burnt to death in your car – 85% of all car fatalities are caused by seatbelts! (no, seriously, I had this repeated to me numerous times in AR when they were finally struggling to pass a compulsory seatbelt law a few years back).

  4. Rob in CT says:

    Tribe Hummus is PEOPLE!

    More seriously, obviously any fine or punitive damages has to actually hurt or it’s pointless. Even the $450k doesn’t seem like much.

    • Rob in CT says:

      But of course what we really need is Tort Reform, Less Regulation and Lower Taxes. It’s the three-legged stool of the New Gilded Age!

    • Barry Freed says:

      Even the $450k doesn’t seem like much.

      This is pretty much it. I wonder if Tribe ignored the consultant figuring that it was worth the risk or Tribe took the consultant seriously and figured that it was just the cost of doing business.

      • cpinva says:

        “I wonder if Tribe ignored the consultant figuring that it was worth the risk or Tribe took the consultant seriously and figured that it was just the cost of doing business.”

        like GM recently, and Ford before them, I’m sure Tribe did a risk analysis, and determined it was cheaper to just pay out per event, then actually fix the problem.

        • Barry Freed says:

          That’s certainly the way I’d bet.

        • DAS says:

          If I am sufficiently willfully negligent, know that my negligence could result in a death and that negligence does result in a death, doesn’t that become depraved indifference murder?

          I would imagine doing a risk analysis and concluding that a certain level of death was acceptable would constitute knowing that one’s negligence could result in death. If corporations are people, shouldn’t Tribe, GM*, et al., be convicted of second degree murder and sentenced to prison for however many years?

          * didn’t the Feds own GM at some point? I’m surprised that the GOoPers and Teabaggers haven’t jumped on with some sort of “when GM killed people, it was the government killing people” talking point

  5. Jeremy says:

    The best solution here is to allow an employee injured on the job to elect whether to receive workers’ comp benefits, or to pursue a civil lawsuit. Workers’ comp will probably be the best solution for an employee who suffers only minor injuries (since this will save the employee the costs of litigation), but an employee (or his or her heirs) would be entitled to pursue the full value of a more serious injury in litigation. Of course, lobbying from businesses would prevent this change from ever being made in pretty much any state, but forcing businesses to absorb the full cost of the harm they cause to their employees would do a lot more for worker safety than OSHA or workers’ comp.

    • Erik Loomis says:

      This. And a permanently injured worker should receive their fully salary indexed to inflation for the rest of their lives.

      • Nobdy says:

        Do you mean permanently injured or permanently disabled?

        Because in some jobs permanent injury is sort of inevitable, such as some hearing loss for demolition teams.

        • Emily68 says:

          Even with adequate ear-plugs?

          • Nobdy says:

            My understanding is yes. Sure if you use absolutely perfect safety protocol 100% of the time and use ear plugs and coverings and are sufficiently far from explosions you won’t have any effect, but my understanding from people who’ve done the work i that since the materials are generally quite dangerous hearing loss is not a primary concern so you have situations where, say, someone using an explosive in one area of the site makes sure everyone is out of the range of physical danger but is a little more lax about making sure that workers in other areas are prepared with hearing protection equipment.

            There are other examples of work where injury is just sort of inevitable or at least highly likely. This rule would, for example, destroy the NFL (which might not be such a bad thing.)

      • Donalbain says:

        Also tied to usual promotion prospects of a worker in place until retirement.

        • Lurker says:

          In Finland, the rules for all sickness and disability pensions, including both work-related and non-work related injuries and sicknesses, include this provision. After five years of medical retirement that has started after age 24, you receive an automatic raise that represents your missed promotion. The raise is 55 per cent minus your age, but not more than 25 per cent. I think it is pretty just.

          In case of a work-related injury, the pension is 85 per cent of your income, averaged over five last years, before that raise.

    • Jeremy says:

      On re-read of my comment, calling that “the best solution” was an exaggeration. But the fear of internalizing the full cost of on-the-job fatalities (which would run well into the millions for an employee with a couple of children) would at least be a more powerful motivating force than fear of a $10K fine from OSHA.

    • Bloix says:

      West Virginia, due to an activist Supreme Court that has repeatedly refused to apply the workers comp bar as written, has for decades allowed workers to sue their employers on what works out to be more-or-less a gross negligence standard. Anecdotally, I can tell you of recoveries of several million dollars in cases that in other states would have been dismissed. I don’t know if there’s any academic work comparing the rate of accidents and the compensation of workers in West Virginia as compared to other states.

      • rea says:

        Hopefully, I will not be booed off the board by confessing to being the winning defense attorney in this:

        http://milawyersweekly.com/fulltext-opinions/1990/01/01/travis-v-dreis-krump-manufacturing-company/

      • J R in WV says:

        The case you refer to was a wood products plant, which had removed every trace of safety equipment on wood working tools, like table saws, routers, sanders, etc. Then came the OSHA inspector, who ordered work stopped until every piece of safety equipment was reinstalled and working properly.

        So they installed the safety hardware on everything, the OSHA inspector left, and the bosses forced the workers to immediately remove every bit of safety equipment prior to resuming work.

        The victim lost his hand on a table saw the next day.

        The court found that the company – in forcing workers to work without safety equipment in place after the OSHA inspection and order, willfully caused the accident to happen, and therefore was liable for the accident employee’s wound.

        I have a hard time seeing why anyone would not blame management for this on the job injury!

  6. Nobdy says:

    I’m not a criminal lawyer but is there a potential case for criminal negligence here? Their own consultant TOLD them this was going to happen, OSHA fined them…if that’s not depraved indifference what is?

    • daveNYC says:

      Shutting down the machines, thus potentially delaying the delivery of tasty middle-eastern dips.

      I might have to switch my hummus brand.

    • cpinva says:

      remember, a company isn’t human, unless it’s convenient to be treated that way.

      “Their own consultant TOLD them this was going to happen, OSHA fined them…if that’s not depraved indifference what is?”

      the ONLY way to stop this, is to grab the nearest, high-paid company executive, and run them through a 100% re-enactment of the event. I can guarantee, once they run out of executive VP’s, things will change around here!

  7. Shakezula says:

    That poor man, what a horrible thing.

    In a just world scum like Shaels and Paul would have too look at the coroner’s pictures from industrial accidents every time they flapped their lips about how important it is not to fetter employers with regulations of any sort.

  8. Origami Isopod, Commisar [sic] of Ideology for the Bolsheviks says:

    Oh, god, that poor guy.

    Unrelatedly: What happens when sick workers aren’t given time off.

    • Pee Cee says:

      Ahh, Red Robin. We stopped eating there when my wife got a burger contaminated with slivers of metal. After that I’m totally not surprised that other things are getting transmitted via their burgers.

      Also, can I say that I’m really fscking sick of “You are posting comments too quickly. Slow down.” showing up when I haven’t posted a comment for several hours?

      • Erik Loomis says:

        The thing to do with these problems is e-mail Farley. He’s who runs the site and is the only one of us who can help.

        • Pee Cee says:

          I’d do that if I could provide any meaningful diagnostics on the problem. So far it seems completely random when the message shows up.

          • Jordan says:

            Do you put an email address into the email box? I used to get that message a lot, but it hasn’t happened since I started putting in an email address. (it also made a gravatar show up for some reason, but I think that is on me).

        • njorl says:

          Am I the only one who thinks Erik might just be having some fun at Farley’s expense?

      • Warren Terra says:

        Or ask the commenter “Nathanael” for tips. The other night (Saturday? Sunday?) He spent about three hours posting about a dozen comments each to what seemed like most of the threads from early May, threads that had been quiet for a week or more. It was impressive, in its way, though I’d really recommend he gets help. Still, he didn’t have the problem you had; maybe he knows a trick.

      • joe from Lowell says:

        Ahh, Red Robin. We stopped eating there when my wife got a burger contaminated with slivers of metal.

        Yummmm!

      • joe from Lowell says:

        We stopped eating there when my wife got a burger contaminated with slivers of metal.

        When I was in college, I once got bits of steel wool in my noodles at this Korean place.

        I complained and made them give me another one, and then ate that.

        The guy I was with said, “I can’t believe you did that.” He didn’t mean, eat the second serving. He meant complain!

  9. Nick says:

    Here in Alberta, which is by no means an industrial also-ran, there is a weird system that I had never heard of before here; workers who are going to do certain jobs have to have what are called safety ‘tickets’, short training courses that are provided by various union or government bodies. These usually cost about 50-100 dollars, and cover basic and specialized safety skills. Examples are:

    Construction Safety and T-something Skills (CSTS), that you need just to step on a construction lot; Confined Spaces; one that deals with hydrogen sulfide gas that’s required for energy industry personnel; Fall Protection; and even things like Bear Safety. Many of them have to be renewed frequently, and I’m sure that there are forms of government (or insurance) regulation that require companies to make sure their workers are competent. I’ve known many people who came here to work who had to get their tickets before finding a job. Many of them have to be renewed. Of course, wages in Alberta are high enough that workers are willing to do this, and unions have leverage to both charge fees, set up institutional programs, and require industry to recognize these.

  10. Nick says:

    And I just want to say that a shitty economy potentiates every underlying problem. In a good economy with plentiful jobs and good wages, workers are free to judge for themselves the balance of safety vs. pay that they’re comfortable with. In a lousy economy with no jobs and stagnant wages, workers don’t have the same freedom to pick and choose. Obviously this is first and foremost an issue of regulation, then punishment, and finally compensation, but it happens more easily when there is a background of economic struggle.

  11. Josh G. says:

    OSHA fines need to be scaled to the size of the business. The whole point of a fine is that it’s supposed to be punitive, and that can’t work if a mom & pop business is charged the same amount as a giant multinational conglomerate like Nestle. The fines should be enough to hurt – and if the issues persist, then OSHA should have the power to shut down the business altogether until they are fixed.

    • cpinva says:

      how about a fine, that will have an “earnings per share” impact? the fines themselves aren’t deductible, for tax purposes, but they’re usually so nominal, the big boys don’t care. on the other hand, if a fine was large enough, to have an affect on EPS & Dividends, that’s something management and the Board would have to explain, in the required notes to the financials, and the annual sh’s meeting. you probably don’t realize it, but most of the large, multi-national companies have millions of issued & outstanding shares. taking a one or two cent (or a nickel, whatever) per share bite out of EPS & dividends, will nearly instantly cause a reaction.

    • ScottK says:

      An idea pulled out of the air, and there are probably a thousand reasons it won’t work, but… apply the fine as a raise for all employees. Mess up safety? 1% raise across the board. That scales with the business and gives the money to the affected people.

      The hard parts, I suppose, would be applying the baseline to new employees and keeping someone from sabotaging safety in order to get the raise.

    • Andrae says:

      I like this idea. To keep things simple, how about scaling the fine by $market-cap / #full-time-permanent-employees. Where a permanent employee is one who cannot be dismissed without cause or formal redundancy.

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