Articles from the major media and the NYCOSH Update on Safety and Health

(From the August 10, 2001, NYCOSH Update on Safety and Health)

Last month, after more than a year of acrimonious public criticism and strong expressions of federal disapproval, the New York State Labor Department replaced the director of its Public Employee Safety and Health Bureau (PESH). The change was greeted with applause from some of the agency's critics and with expressions of cautious optimism from others.

Labor Commissioner Linda Angello appointed veteran safety and health manager Maureen Cox to replace Robert Perez as PESH manager. Cox, who had been PESH manager during the tenure of Democratic Governor Mario Cuomo, was removed from that position shortly after Republican Gov. George Pataki was elected in 1994.

Angello appointed Cox to the post shortly after a high-level meeting with state union officials, including New York State AFL-CIO President Denis Hughes. A spokesperson for the state AFL-CIO told NYCOSH that Angello had agreed that there was a need to correct the enforcement shortcomings of PESH. "Very soon after AFL-CIO President Denis Hughes met with Commissioner Angello, we began to see things change for the better," said Arthur Wilcox, Director of the state AFL-CIO's public-sector division. "A new PESH director has been installed and we have resumed quarterly meetings between public-sector unions and PESH officials, meetings that had been a regular practice, but which were suspended by the Labor Department more than four years ago."

"Commissioner [Angello] has committed to strengthening the relationship between PESH and the organized labor movement of this state," said Public Employees Federation president Roger Benson, who is the co-chair of the New York State AFL-CIO's Public Employee Occupational Health and Safety Committee. Benson added, "the public employee unions have been protesting PESH deficiencies and will remain vigilant until they are corrected." PESH enforces safety and health regulations that apply to employees of state and local government in New York State.

Cox's appointment could represent a turning point for PESH, not only in its relations with organized labor, but also with the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA). Over the last two years OSHA released a series of scathing reports detailing major PESH failures to enforce safety and health regulations. OSHA, which is required to provide PESH with half of its budget, audits PESH enforcement efforts but lacks any authority to intervene directly in PESH activities.

OSHA officials expressed gratification at the appointment of Cox to head PESH. "We have worked with Maureen very successfully in the past," said OSHA Assistant Regional Administrator Brenda Judson, "and we know the strength of her commitment to making a success of the PESH program. We look forward to continuing that relationship."

Lee Clarke, safety and health director of one the state's largest public-sector unions, District Council 37 of the American Federation of State, County and Municipal Employees, also expressed satisfaction at Cox's appointment. "I have already found that PESH is more responsive to us," she told NYCOSH. "Of course, the proof is in the pudding, and it is too early to draw any firm conclusions, but I am very hopeful that she will make sure that PESH functions the way it is supposed to."

Joel Shufro, executive director of the New York Committee for Occupational Safety and Health, commented, "The appointment of Maureen Cox to head PESH clearly demonstrates how important it has been for the labor movement, working through the state AFL-CIO's Public Employee Occupational Health and Safety Committee, to intervene in what was becoming a disastrous situation. But the change will make a difference only if Commissioner Angello follows through by ensuring that the Labor Department takes its law-enforcement activities seriously," he added. "For years that has not been the case, and Cox cannot, by herself, turn the situation around. She certainly has the skill to do so, but her efforts will be fruitless if Angello and the Governor don't give her the backing and the resources she needs."

Shorting Public Employees on Workplace Protections: Pataki's Faulty Safety Patrol -- Unions representing public workers in New York State say that since Pataki took office in 1995, the state agency responsible for ensuring safety for public employees has been chronically late in responding to accidents, has routinely misclassified serious hazards as lesser problems, and has failed to use its power to press violations and fines against employers. The Public Employee Safety and Health program, known as PESH, which is part of the state labor department, has become such a toothless watchdog of worker safety that many unions don't waste time seeking its help. -- Village Voice, March 14 - 20, 2001  

(From the March 2, 2000, NYCOSH Update on Safety and Health)

The crisis over the New York State Department of Labor's failure to enforce safety and health laws for public employees became a public and political issue on Feb. 23, when the New York State AFL-CIO Public Employee Safety & Health Committee, its member unions and NYCOSH launched a campaign to pressure the state government to fulfill its obligation to enforce the laws that are intended to protect the safety and health of public-sector workers.

The union coalition released a report showing that the injury rate for public-sector workers in New York State is more than double the injury rate for private-sector workers in the state. In particular, the coalition noted that the injury rate for workers in public psychiatric hospitals was more than 400 percent above the rate for private-sector workers.

The coalition attributed the high injury rates to a sharp drop in enforcement activities by the New York State Public Employee Safety and Health division (PESH). According to PESH statistics which were analyzed by the union coalition, the number of PESH inspections fell by 46 percent from 1997 to 1999 and the number of PESH violations fell by 41 percent during the same period.

Over the last two years, public-sector workers from all over the state have been reporting similar experiences – PESH does not respond promptly to complaints, and then when PESH does respond, the result is an inspection that ignores conditions that are obvious violations of the OSH Act.

To gather more information on the problems occurring within PESH, the Public Employee Federation (PEF) surveyed all 58 PESH inspectors. An overwhelming response to the survey indicates that the PESH program is grossly understaffed, as PEF documented in a report released last week entitled "The Disempowerment of the PESH Program: Voices of the Rank and File PESH Inspectors." Not only do the PESH inspectors report that there are insufficient numbers of inspectors, but many of the offices have been without any clerical support staff for more than a year. Furthermore, inspectors are no longer provided necessary training to carry out the duties of their jobs.

"The labor movement of this state will not rest until the safety and health of our public employees is fully and adequately protected each and every day they go to work," stated New York State AFL-CIO Secretary-Treasurer Paul Cole.

The union coalition is calling for immediate reforms along with an investigation of PESH by the state legislature and an audit by the New York State Controller's Office. The Labor Committee of the State Assembly is expected to hold hearings on PESH later this year.

Copies of "Voices of the Rank and File PESH Inspectors" are available from the PEF Health & Safety, 1168-60 Troy-Schenectady Rd., Latham, NY 12110; Phone: 518-785-1900 x254 or click here to send a request by e-mail.

(From the February 16, 2000, NYCOSH Update on Safety and Health)

There is a large and growing crisis in the enforcement of safety and health laws for public employees in New York State. "The current administration has made a conscious choice to undermine public-employee safety and health in every way it can," according to NYCOSH Executive Director Joel Shufro, "and we can see the results in a marked decrease in inspections and citations."

The state's Public Employee Safety and Health bureau (PESH) has less than 70 percent of the professional staff called for by its budget, half of which is funded by the federal Labor Department. Compounding the lack of inspectors, many PESH offices have little or no clerical staff, forcing inspectors to devote a large portion of their time to administrative tasks.

Over the last two months, OSHA, which monitors PESH to ensure that it meets federal requirements in the enforcement of safety and health regulations, has taken the unusual step of identifying ten cases in which PESH officials appear to have under-enforced the law as a result of serious errors. PESH's response to the OSHA complaints has been to deny that it failed in most cases and to refuse to accept responsibility in cases where the errors can not be denied.

The breakdown in PESH enforcement not only puts public-sector employees at risk, it results in an injury and illness rate among public-sector workers that is more than twice that of private-sector workers in New York State.

Frustrated with PESH inaction, the New York State AFL-CIO Public Employee Safety & Health Committee is preparing to make a major issue of the Pataki administration's neglect of safety and health. The committees member unions -- including AFSCME District Council 37, Civil Service Employees Association, Transportation Workers Union, Communications Workers, New York State United Teachers, Service Employees International Union, Teamsters and the United Federation of Teachers – are, with the participation of NYCOSH, planning a public campaign -- to be launched before the end of February, to pressure the state government to fulfill its obligation to enforce the laws that are intended to protect the safety and health of public-sector workers.

(From the January 20, 2000, NYCOSH Update on Safety and Health)

In the second such action in less than a month, OSHA filed four Complaints About State Program Administration (CASPAs) with New York State's Public Employee Safety and Health bureau (PESH) on January 10.

The new complaints come on top of six similar complaints filed against PESH on Dec. 17 (NYCOSH Update on Safety and Health, Dec. 22, 1999).

The new CASPAs allege that --

¶ PESH granted a request from the New York City Department of Transportation to modify mandatory abatement of a violation without giving the union that represented the affected employees notice that the request had been filed;

¶ PESH improperly gave two employers permission to ignore a section of the Public Employee Safety and Health Law; and

¶ PESH allowed a violation to go uncorrected when it failed to conduct a reinspection of a workplace to confirm that a dangerous condition had been corrected, despite repeated union complaints that the violation had not been eliminated.

"These charges make it clear that PESH's problems are pervasive" said NYCOSH executive director Joel Shufro. "The agency is not protecting the safety and health of public-sector workers in New York State."

(From the December 22, 1999, NYCOSH Update on Safety and Health)

In response to a growing chorus of complaints from unions, workers and activists about serious lapses in safety and health enforcement for public-sector workers in New York State, on Nov. 22 OSHA put the State Labor Department on notice that it is not following "a basic program requirement that is necessary for plan approval," an omission that it "must" correct.

In addition, on Dec. 17 OSHA filed six detailed Complaints About State Program Administration (CASPAs) with the state's Public Employee Safety and Health bureau (PESH). Each of the CASPAs details a particular PESH investigation, noting specific instances in which it is alleged that PESH failed to properly enforce the safety and health law. PESH operates under rules set by OSHA, and the federal government provides the state agency with half of its budget. OSHA has given PESH until Jan. 17 to supply it with a detailed response to each CASPA.

According to a letter from OSHA Region 2 Administrator Patricia Clark to PESH, PESH is flouting the "basic program requirement" that requires PESH, as an employer, to give a copy of its list of injuries and illnesses among its employees to the union representing the employees. PESH officials refused to supply the Public Employees Federation (PEF), which represents PESH staff members, with a complete copy of its DOSH-900 log (the New York State equivalent of the OSHA-200 log). OSHA contacted PESH to express its concern over the apparent violation of OSHA regulations, and PESH officials confirmed that they would not release the DOSH-900 to PEF. In an interview with NYCOSH, PEF President Roger Benson commented: "The fact that the State Labor Department is refusing to follow the recordkeeping rules for Labor Department employees is symbolic of management's flippant attitude toward enforcement of safety and health standards for public employers."

Benson noted that "All of the CASPAs reveal the same underlying problems. The Pataki administration has refused to fill vacancies at PESH and to properly train PESH inspectors. This is sabotaging the effectiveness of the program and making it incapable of carrying out its legislative mandate."

The apparent enforcement failures detailed by OSHA in the six CASPAs dated Dec. 17 include:

¶ Three cases in which the PESH case files show that its inspectors identified and documented specific serious violations of the law, but PESH supervisors never issued citations for the identified hazards.

¶ In another case, OSHA alleges that PESH issued ten citations, but then "vacated" eight of them under a procedure that has no legal basis.

¶ In four cases PESH is alleged to have missed, by weeks or even months, mandatory deadlines to investigate complaints and issue citations.

¶ In two cases, in addition to other irregularities, PESH never met its obligation to enter a summary of the case in OSHA's national enforcement database.

¶ In another case, OSHA reports that a PESH inspector refused to look at a fall-protection hazard brought to her attention during a site visit, saying that because "she was not a Safety Specialist" (she was a Health Specialist) she could only refer the complaint to PESH, a violation of OSHA and PESH regulations.

¶ In one case, according to OSHA, PESH gave an upstate school district advance notice of an inspection, a violation of both federal and state regulations.

The Director of the New York State's Division of Safety and Health, Richard Cucolo, declined to comment on the specifics of OSHA's allegations. "We are going to respond to OSHA," he said, "but we just received them and we have not even had an opportunity to look at what is in the files" about each of the cases.

(From the June 3, 1999, NYCOSH Update on Safety and Health)

According to the Occupational Safety and Health Administration's Biennial Evaluation (January 1, 1996 - December 31, 1997) of New York State's Public Employee Safety Health Program (PESH) which was recently released and obtained under the Freedom of Information Act: "PESH staffing levels are inadequate for Safety Inspectors." According to OSHA, staffing levels for safety inspectors are at 64.5% of the federal benchmark. Staffing levels for health inspectors, while meeting federal standards, are at 77.8%.

"PESH needs to assure that compliance personnel are provided with adequate training." According to the report, PESH claims fiscal restraints have prevented it from providing their staff with training, which is usually conducted at the OSHA National Training Institute.

"PESH must ensure that complaints and referrals are responded to within prescribed time frames. Further, they must ensure that complaints are appropriately classified. Serious complaints are not to be classified as other-than-serious in order to extend the response time." According to PESH's Field Operations Manual, formal imminent danger complaints shall be investigated as soon as possible, serious complaints within 30 working days and other-than-serious complaints within 120 days. In July of 1997, OSHA conducted a special study evaluating PESH's complaint procedures. The report found that approximately 25% of the other-than-serious complaints reviewed could have been classified as serious. Overall, PESH classified complaints as other-than-serious 71% of the time (465 out of 665), compared to 59% for public employee programs nationwide. According to the report, PESH supervisors indicated that this was done to extend the response time.

"PESH needs to increase the percentage of penalty retained on contested cases." According to the OSHA evaluation, PESH retained 30% ($73,287 out of $239,875) of the penalties assessed for cases contested for 1996-97 -- far below the national average of 45% for public sector programs. Despite a March 6, 1997 recommendation by the New York State Comptroller that PESH prepare and implement written policies and procedures governing the reduction of PESH penalties, no policies have been developed. According to the report, PESH says that unwritten policies and procedures have been communicated to their attorneys.

"Time frames for discrimination investigations are not acceptable." Currently, 58.7 percent of all cases in which an employee says he or she has been illegally discriminated against for having exercised an OSHA- protected right exceed the 90-day time limit.

"PESH must ensure that OSHA standards are adopted within the required time frames." PESH failed to adopt five standards within six months of promulgation as required by the Ne York Public Employee Safety and Health Act. These standards were initially adopted via an Emergency Temporary Standard which expired prior to a formal adoption by the state – "resulting in a period of approximately 2½ weeks without PESH coverage. PESH must ensure that workers are afforded continuous protection under PESH standards.

"OSHA's audit raises a red flag," said NYCOSH Chair William F. Henning, Jr. "We are concerned that PESH's failure to comply with OSHA standards compromises the health and safety of public sector workers. We are calling on the Department of Labor to immediately come into compliance with OSHA's recommendations."

Assessment and Collection of Public Employee Safety and Health Penalties (New York State Office of the State Comptroller, 1997)

Assessment and Collection of PESH Penalties, Review of Actions Taken(New York State Office of the State Comptroller, 1998)