Jordan Barab: Why OSHA Can’t Cite Cell Carriers for Worker Safety Violations
May 22, 2012, 9:36 pm ET
As deputy assistant secretary of labor, Jordan Barab is second in command at the Occupational Safety and Health Administration [OSHA]. He told FRONTLINE that because of subcontracting rules, OSHA does not “have the legal ability” to cite major cell phone carriers for safety violations that, in some cases, can lead to worker deaths. This is the edited transcript of an interview conducted on Dec. 5, 2011.
In the scheme of things, where does tower climbing rank in terms of danger?
It’s certainly a very dangerous occupation. If you look at the statistics, you find that they have a very high rate of fatality, injuries in that profession.
In a 2008 [speech], the then-head [of the Occupational Safety and Health Administration], Edwin Foulke, stated that tower climbing remains the most dangerous job in America. Is that still the case?
I’m not sure if it’s the most dangerous. It’s certainly one of the top most dangerous occupations if you look at, again, the rate.
Happily you don’t see a lot of fatalities there. There is usually 10 or fewer per year. But nevertheless, when you figure out the rates by how many people are actually working in the profession, you find that this is a very high rate. It’s a very dangerous occupation. …
How do you collect that data?
Fatalities are collected by the Bureau of Labor Statistics. They do a survey all over the United States where they look at employer reports, newspaper articles, emergency room visits, that type of thing, and they come up with basically a census of fatalities that occur in the workplace.
And when you’re putting that data together, do you look at the whole chain, carrier all the way down through contractor? Is it broken down that way?
It depends. There are different industry codes. If everybody in the chain is in the same industry code, then they would come under the same category.
I want to share this. This is our data that we took, much of it from OSHA files. … Then we broke it down per carrier. Is this the kind of information that you gather?
We don’t gather information very often [on] who the owner or the ultimate owner of the towers is. We were focused on employers. So we will look at the workers that are actually working on the towers, and then they’re injured or killed in the towers, and who their employers are.
“We’ve had a number of situations where we think that accidents were caused by companies trying to meet deadlines and cutting corners on safety to meet those deadlines.”
As you’re probably aware, a lot of this work is contracted down. The big company that may own the tower will contract, perhaps, to a general contractor, and that general contractor may then subcontract one or two levels below that.
When we looked at the data, we found a pattern whereby AT&T had significantly more deaths on towers that they were owning or renting than the other carriers.
If AT&T, or any other big company, doesn’t have any employees at the site, then we have a very hard time actually citing the owner of the tower.
We do think they have a responsibility, however, to ensure that their contractors do ensure that their employees are safe. They can do that by making sure that they write safety into the contracts.
But we don’t have any legal ability to go after them if they don’t have any employees actually being endangered at the site.
… You’re saying you don’t collect this kind of data [about tower owners]?
Right. We don’t have really any way to know that necessarily. Again, when we’re inspecting a work site, there’s usually a contractor — or really a subcontractor — at the work site who employs the employees at the work site.
Why not do it? Why not collect that information?
Well, legally there’s no way we can really get to that company, the company that may, again, several levels up, that may actually own the tower.
… What I’m asking is, why not simply collect the information so that if there is one carrier whose contractors and subcontractors are having a higher rate of fatalities —
That’s an area we’re focusing on more. Sometimes it’s difficult for us to do that. But in many cases we are trying to identify who is ultimately responsible for the job itself, and we’re trying to encourage them to, again, take these precautions.
For example, a lot of cities and counties are now writing in safety criteria into their contracts when they contract out, for example, on the road building. And this is something we like to see every large company do when they contract out work.
But at this point in time you don’t collect data on the carriers?
And is that something that you should be doing?
It’s something we could do. Again, it’s a lot of work to try to trace things up to the ultimate owner. But it would probably not be a bad idea for us to do that.
Is it that much work? Don’t you just have to ask the subcontractor?
Well, the subcontractor may not know who the ultimate owner is. The subcontractor may know the general contractor that they’re working [for], and the general contractor then may know. Then again, we’re talking about sometimes multiple levels here.
But it’s only two or three phone calls and you would know who the carrier was.
Would you say it would be better if you collected this information?
Often when we find one company that’s responsible — or especially one industry that’s responsible — for a number of problems and workplace safety problems, we will either talk to that industry, usually, again, as part of an association. If there happens to be a company that’s having problems, obviously, we’ll go down and sit with the company. And we do that quite a bit.
But if you’re not collecting data on the carriers, it would be hard to then identify who it was that you needed to sit down with, right?
So I take it from this that it would be a good idea to start collecting data.
It’s something that we always look into when we see a pattern of problems. We really do try to trace it up to the root source of those problems. …
Talk about the challenge of regulating this industry.
… I think one of the greatest challenges is the fact that you are working with small contractors in very rural areas, very often. It’s hard for us to really oversee the industry when it’s so small, so dispersed, and the jobs are relatively short as well.
In 1991, OSHA commissioned a paper on the use of subcontractors in the petrochemical industry. Is that a paper you’re familiar with?
… Is it the John Gray report?
Yes. And that paper told you what?
That told us that companies that contract out work need to be concerned about the safety of their contractors as well.
And in place you have something called the Multi-Employer [Citation Policy] doctrine.
What is that?
That is our attempt where conditions are proper to be able to assign responsibility up the line of contractors.
And if you see a carrier at the top of the chain of contractors who has a higher rate, if you were able to see that — you say you don’t collect that data, but if you did — what would you do?
The Multi-Employer Policy is different. The Multi-Employer Policy addresses our ability to actually cite an employer. And again, generally we can only cite employers when their employees are at the work site.
Now where you have a contractor that subcontracts, in some cases that contractor will have responsibility. Either because they’re at the site, or because they have employees at the site, they’ll have enough control over the site that we can actually cite them.
So they don’t have to be present at the site for you to cite them?
Either they have to be present at the site or they have to have some kind of controlling authority over the site. …
If they are controlling employers, I understand the multi-employer doctrine, then that could be because they are setting certain schedules or certain conditions that control the work at the site.
Yeah, and they have to have some responsibility over the site as well. Our problem in this industry is that you have these little contractors that may set off in their pickup truck, you know, driving miles across the countryside and may never have any contact, face-to-face contact, with their contractors.
But the work that they’re doing is controlled in a very real sense by the carrier at the top of the chain. The pressures of the job, the amount of money that they’re going to be getting for the job. It’s all controlled by this chain and at the top, of course, the carrier.
So why wouldn’t Multi-Employer be –
It’s very restrictive in terms of the legal requirements for using and employing Multi-Employer. Again, generally it’s only useful when you actually have somebody at the site that actually is witnessing and has some control over the actual working conditions at the site.
So if you can’t use Multi-Employer but you were able to indentify a carrier with a high incidence of fatalities, how could you go after them?
… Enforcement is certainly one of our major tools that we use to ensure safety in the workplace. We have a number of other tools that we can use as well: training; we have partnerships. We had a partnership with the association that represents tower erectors [National Association of Tower Erectors]. We have compliance assistance materials. We have the bully pulpit.
And again, as I told you, when we detect problems in industries, we will very often ask the associations to come in and sit down with them and have some very serious conversations about how [it's] their responsibility to ensure that their members are actually ensuring that there is safety for their employees.
Are you aware of any time when OSHA in the last eight years has cited a carrier?
… No, I’m not aware of that. …
But the carrier is an important player in the chain, setting conditions.
There are all kinds of important issues in the chain. You can go all the way down, if you want to look at root causes, to the state of the economy. You can look at the state of the industry. You can look at the employer himself: how many towers they’re building, what they own, what their schedules are.
But we have very clear legal requirements that we have to meet in order to cite, and those requirements generally focus on the employer that actually has employees at the site.
The head of OSHA in 2003, John Henshaw, wrote a letter to Cingular Wireless and to other carriers asking for more help.
That’s an example of the kind of thing that we do when we’ve identified industry associations or large companies that may have problems.
This letter says you’ve got to do more to help ensure that your contractors are doing work in a safe way.
But what was the outcome of this? I mean, what was the result?
I’m not sure if that was the specific outcome of that, but we did have a partnership with the National Association of Tower Erectors. I think it was formed about that time, where we again focused on the entire industry.
Right, and the head of NATE, the National Association of Tower Erectors, wrote a memo here, and he says in it that if OSHA doesn’t step up — and this was addressed to OSHA — we’re going to continue to have fatalities.
I’m not familiar with it specifically. Is that the recent letter?
This is to the NATE/OSHA partnership management team members. So this would be both to NATE and to OSHA. And he’s saying that OSHA needs to use all its tools or we’re going to continue to have more fatalities.
I believe we did a lot of what they asked us to do in this.
But how can you say you’ve done what they asked you to do if in the last eight years you can’t cite one incidence, one time where you’ve gone after a carrier?
There’s nothing in here that asks us about the carriers. If you’re talking about this letter, what this letter says is develop a database, do training of both their members and our CSHOs [Compliance Safety and Health Officers], our inspectors, develop a Health and Safety page, do external networking. These were all elements of the partnership that we had with NATE.
“OSHA needs to find a way to deal with these companies” — and that is referring to cell carriers as well as tower owners — “or accept that fatalities are going to continue.” It cites and asks [for] open discussions with the National Association of Tower Erectors regarding how multi-employer workplace doctrines can be applied. “We need to work together toward that end, or we will continue to face fatalities.”
And that’s what we did as part of that partnership. Again, usually the best way to get to all of the companies involved in an industry is to work through their association. That’s why we had a partnership, and that’s why we worked closely with NATE during those years.
But what does this say to you that there have been no citations by OSHA against any carriers?
It says to me that we don’t have the legal ability to do that.
What’s multi-employer doctrine?
The large companies are basically hiring a general contractor which may be hiring another contractor which may be hiring another contractor. The Multi-Employer [Citation] Policy doesn’t allow us to go up that high in the chain to actually cite the employer at the top of the chain.
Why couldn’t you cite them under multi-employer doctrine using the controlling employer –
Because they don’t control the work site itself.
If they are controlling the schedule, putting pressure on the general contractor, who in turn puts pressure on the subcontractor, who in turn puts it on the next level down, aren’t they a controlling employer?
We’ve had a number of situations where we think that accidents were caused by companies trying to meet deadlines and cutting corners on safety in order to meet those deadlines. And this is something that we’re trying to identify more and more as a kind of a root cause of a lot of problems in the industry, and then meeting with the companies and really publicizing this issue. …
But again, our legal requirements don’t allow us to actually cite an employer of the line now for setting a schedule that may then encourage its subcontractors to cut corners on safety in order to meet a deadline.
Nevertheless, we do talk to employers about that kind of thing, about this undue pressure that could lead to unsafe conditions, and it’s something that we feel very strongly about that employers, when they subcontract, really need to write safety into the contracts.
It’s not enough just to say you need to have something done by a certain date. It’s not enough just to contract out to the lowest bidder. There also has to be safety criteria in there as well.
We came across this internal document from AT&T, and it’s called the “Division of Responsibilities Matrix.” It lists what they want to be informed about, what they will take responsibility for, and what they simply want to be consulted about. A number of incidents in here, for instance, provide daily schedule updates. They want to be informed. There’s a number of things they want to be informed about; there’s a number of things they want to be consulted about; and there’s some things they take responsibility for. Curiously, when it comes to the issue of safety, they assign responsibility to the subcontractor. They want the primary contractor to be consulted, but they don’t even want to be informed. It’s one of the only incidents in this whole matrix where they simply don’t even want to be informed. Can you explain why they would not want to be informed of safety issues on their jobs?
No. I mean, I can’t. Does it say specifically, “Don’t inform us,” or does it say —
It’s blank. This column here.
I can’t speak for AT&T. But again, we do encourage strongly companies to take safety into account when they’re contracting work out and to take the root causes of safety problems into account, too, which can mean unmanageable schedules or schedules that encourage their contractors to cut corners on safety.
Shouldn’t AT&T or any carrier want to be informed about safety issues on their sites?
We think that every large company that contracts out work would be concerned about the safety and health of the employees of their subcontractors.
I know you’ve got a lot on your plate, and you’ve got some limited resources. OSHA’s budgets have been cut when looking back over the years. But when you see a pattern like this, where you have a company that asks not to be informed about safety, and they are having a higher incidence of fatalities on their sites, what does that tell you?
When we find a company or an industry that has a lot of health and safety problems, especially [with] subcontractors, we do try to encourage that industry, either through meeting through the companies themselves or through the associations, to build safety into its contracts. We need them to be concerned about the health and safety of the employees all the way down the line, all the way down through their contracts.
But if you’re not collecting the data that would show you that there was a pattern whereby AT&T was having more fatalities than other cell carriers, how would you know to go after them?
We generally go after the industry itself, … and that’s what we did in this case. We went to the National Association of Tower Erectors. And this has been an issue with them of making sure that they build safety into the contracts that they write and making sure that safety feeds its way down all the way down to the subcontractors, all the way down to the work site where workers are in danger.
You’re saying you go after the industry as a whole, but if you’ve got an outlier in the industry, don’t you want to know that?
We do want to know that, and we want to make sure that the industry really focuses on those. …
You say you want to know that, but you’re not collecting the data.
We can’t collect data from every single accident that happens around the United States. …
Yeah, but these are fatalities.
We have a lot of fatalities with small contractors that work for cities and counties. Now, we can’t total up every city and county and how many injuries, illnesses and fatalities they have, but we can talk to the associations that represent these counties or represent the cities and say: “Listen, you need to focus more on safety all the way down the line among your contractors. Safety conditions need to be written into the contracts. It can’t just be a low-cost bidder. You need to actually make sure that they are actually treating their workers safely and that they’re ensuring a safe workplace.”
So a carrier writes into the contract that the contractor and the subcontractor have to obey certain safety standards. But if the carrier doesn’t want to be informed about how that work goes forward, then they’re off the hook?
They’re probably off the hook anyway, unfortunately. Our Multi-Employer Policy really focuses in on the employers that have some control in the workplace itself, which usually means the contractors down below.
That doesn’t mean that we can’t use the bully pulpit and meet with these employers and meet with their associations and ensure that they build safety into their contracts.
In 2008 there was a period of five weeks, and there were six fatalities. … Half of them were AT&T jobs. It was during the rollout of the iPhone 3G. It’s not data that you collect?
We collect certainly data on the fatalities themselves, yes.
[Editors' Note: In a statement from AT&T, the company says that, in 2011, there were no reported fatalities. "Worker safety has always been a hallmark of AT&T," writes spokesman Mark Siegel.]
But not who the carriers are?
Not who the ultimate carriers are or the owners of —
How can you police the industry if you can’t see the patterns?
Again, we do see patterns, certainly among the industries. This is obviously a very dangerous industry, and there are too many people getting hurt and dying in this industry. That’s why we sit down with the association and try to make sure that they build safety into all of their members and into the contracts.
Here’s a case where you say the multi-employer doctrine can only cite those that are controlling employers, but during the rollout of the iPhone 3G, one could presume that there was a lot of pressure to get those things up and going before Apple released the phone. So in that case, it would seem to me that that they’re controlling the pace of the work.
The pace of the work is not an uncommon problem for us, unfortunately. When the economy is going strong, for example, when the construction industry is going strong, you’ll find a lot of demand for construction, and you find the fatalities will be going up. There are more people working in the industry. They’ve got more work, and they’re cutting more corners.
This is happening right now in the oil and gas industry — very similar, where we have a lot of problems in rural areas. There’s a lot of demand for this, a lot of workers out there working, a lot of deadlines to meet. And it represents a major health and safety problem and something that we do talk to the industry about. We’ve been talking to the oil and gas industry. We’ve talked to the refining industry. When construction picks up, we will talk to the construction industry again about this.
But the guy in his pickup truck that’s going out there and doing the work on a tower is not responsible for that pressure.
The guy in the pickup truck is responsible, certainly, for the health and safety of his employees.
Well, in many cases, that might just be one guy.
He’s responsible for that –
But he’s not responsible for meeting the deadlines, setting the schedule and for setting the prices. All of that’s coming down from the top, right?
Right. And when we do look at the root causes of these problems — and in some cases the root causes are the pressure on the subcontractors to actually perform the work according to certain deadlines — unfortunately our concern doesn’t always meet our legal requirements.
In terms of legal requirements, we’re much more limited than we are in terms of going around and talking to these employers and talking to the associations that are ultimately responsible for setting these kind of deadlines.
Under Multi-Employer, you have to show that the employer knew of safety problems?
They have to know of the specific safety problems. In other words, the employers at the site, the mangers at the site, the employer at the site will know if somebody is working without fall protection. And that is easy to cite.
If the general contractor is also at the site or is actually setting the health and safety conditions, then in some cases we can also hold them responsible. But as you go up the line, it becomes much more difficult to actually hold the companies at the top responsible under our legal requirements.
Does that give the companies at the top an incentive not to know what’s going on in terms of the specific safety behavior on the site?
I can’t really speak for their motivations. All I can say is that when we identify a problem, we do try to address it by either talking to the companies or talking to the associations. …
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