Government lax on worker safety. Report faults Justice Department for its inaction

The federal government is paying scant attention to the most serious breaches of worker safety in the United States. That's the conclusion of a report to be released in Washington, D.C., this week. The Monitor obtained an advance copy of the report, which criticizes the Justice Department for its inaction.

For example: Of 13 cases referred to the department by federal safety regulators since 1982, only one is in litigation. Six cases have received no action and five others have been turned down. Most of these cases involve fatalities in the workplace. The only case successfully prosecuted during the Reagan administration involved an assault on a safety inspector.

``We've created a system of legal homicide,'' says Joseph Kinney, author of the report and founder of the National Safe Workplace Institute, a not-for-profit research group here.

Adds United Steelworkers president Lynn Williams: ``The Department of Justice should enforce the law, not just that part they happen to agree with.''

Such critics blame the Reagan administration for being lax on worker safety. They point out, for example, that the Occupational Safety and Health Administration under former President Carter referred nearly twice as many cases - 24 - in its four years as OSHA has done in six years under the Reagan administration.

But the real roadblocks to effective prosecution of unsafe companies are more complex, OSHA officials counter.

``Those cases that we do think are worthy of prosecution we would certainly like to see prosecuted,'' says Frank White, OSHA's deputy assistant secretary. ``But those decisions are ultimately in the hands of the Justice Department.''

Although OSHA under Carter referred more cases to Justice, the prosecution record is hardly much better, he adds.

According to the report, the department has never won an unsafe workplace conviction that resulted in imprisonment, even though 128,800 work-related fatalities have occurred since the Occupational Safety and Health Act took effect in 1971.

With federal prosecutors all but inactive in this area, state and local prosecutors in Connecticut, Texas, Illinois, Wisconsin, and California are beginning to file charges against employers whose grossly negligent practices lead to worker fatalities. California has probably taken the lead in this regard, safety officials and prosecutors say.

For example: In the same period that federal OSHA referred 13 cases for prosecution, California's OSHA referred 189. Of the 13 federal cases, one has resulted in conviction. Of the 189 California cases, 54 resulted in convictions, no-contest pleas, or successful compromises.

A big reason for California's success is that state laws regarding criminal prosecution of employers are broader than federal laws, says Michael Mason, chief counsel for the state's Division for Occupational Safety and Health.

Another factor is the attention that some local prosecutors are paying to workplace fatalities. Los Angeles County has established a separate OSHA section in its local prosecutor's office. A special investigator and a deputy district attorney are on call 24 hours a day to gather evidence when a worksite mishap leads to a fatality.

Of course, most of the fatalities do not involve gross employer negligence and thus are not prosecuted, says County District Attorney Ira Reiner. But ``in any investigation, it's important to get on the scene immediately.'' The Justice Department, by contrast, has sat on some cases for up to 18 months, according to the report. That lag time is not unusual, a department spokesman says.

The Chicago report suggests three ways to remedy the delays: (1) establish a separate OSHA section with the department's criminal division; (2) make a policy of referring possible OSHA cases to a US attorney within 30 days; and (3) have federal OSHA employ criminal investigators at its regional offices to expedite criminal cases.

The Justice Department did not respond to a request for an interview with an official in the criminal division. Mr. White at OSHA said he would be willing to look into the possibility of employing criminal investigators.

Some safety experts say that local prosecutions in a few states are too spotty to effectively improve workplace safety nationwide. ``Obviously, there's a need for federal intervention,'' says Peg Seminario, AFL-CIO associate director for occupational safety and health.

Other experts say that criminal prosecutions, at whatever level, do not attack the root problem of worker safety. ``It's a bandaid,'' says David MacCollum, a consulting safety engineer and past president of the American Society of Safety Engineers. Until employers are hit in the pocketbook by substantial damages for worker fatalities, ``you're going to have the same problem.'' Large, self-insured companies counter that a hike in insurance premiums is an effective deterrent to being sloppy in safety.

Meanwhile, the issue of who should prosecute employers has gotten murky.

Successful in convicting three company executives for a worker death in 1985, Cook County prosectors lost a later workplace safety case when a court ruled that federal law preempted local prosecution.

Currently, both county and federal prosecutors are looking into filing charges in a third case in connection with the 1985 death of a foreman after he was overcome by carbon dioxide in a shaft of the mammoth Deep Tunnel project here.