Fatal Construction Falls: Safety Not Always Put First

Roofer John Nadeau would often reassure his kid sister with a nod and smile when she urged him to be careful out on the job.

But Jeannette Michelini knew enough about the hard-driving construction industry to worry that safety might be secondary to getting the job done. Her fears were confirmed last December, when Nadeau, 43, unsecured by a safety harness or net, fell more than 20 feet off a roof in Methuen, to his death.

What Michelini didn’t know about was the price tag the government would put on the safety lapses that led to her brother’s death. His employer, 3 ML Construction Co. of Lawrence, was fined less than $5,500 for three serious violations contributing to his fatal fall, including a lack of proper training and fall protection.

The negotiated fine — reduced from the amount originally proposed by the Occupational Safety & Health Administration -– is a fraction of the cost of the residential roofing job Nadeau was working on.

“That’s it? That’s all? That’s crazy,” Michelini said. “Nothing is going to bring my brother back, but come on, you’d think they’d do something more, so other companies would get the message.”

Nadeau’s death comes amid rising concern in Massachusetts about fatal construction falls. Massachusetts’ workplace falls have accounted for a “much higher proportion” of fatal occupational injuries than in the nation as a whole, according to a recent report by the state Department of Public Health. Close to 70 percent of those deaths, from 2000 to 2007, were in construction, the report shows.

Meanwhile, a 2006 report by a legislative committee that recommended strengthening oversight of the construction industry — including prosecuting employers who willfully violate OSHA rules — has yielded no action.

And Massachusetts OSHA officials have been more lenient than their counterparts in other states in reducing fines levied against companies for safety lapses that contributed to workers’ deaths, a review of state and federal records by the New England Center for Investigative Reporting has found. Based on 2009 data in a recent national report by the AFL-CIO, Massachusetts ranks 5^th highest among all states in reducing median fines initially levied against employers for workplace fatalities. The report does not specify which cases were construction falls.

Frank Callahan, president of the Massachusetts Building Trades Council, which represents 75,000 workers, expressed frustration with the level of OSHA fines.

“You see a story in a newspaper that OSHA is hitting a company with a big fine, but what you don’t see is how much that fine is reduced afterwards,” Callahan said. “When you see the outcomes, in a lot of cases, animal abuse brings heavier fines.”

The NECIR investigation also found:

Employers also rarely face heavy fines when a worker dies in a fall, NECIR found. Of 32 fatal fall cases in Massachusetts listed in OSHA records as having been investigated since 2005, only three have resulted in fines of more than $30,000; some deaths have resulted in fines as low as $1,500.

The records show companies routinely negotiate reductions in initial fines for safety violations, often through informal settlements with the OSHA regional office. Fines for fatal falls in construction were reduced by an average of 20 percent in the five years through 2009, sparing the companies involved more than $120,000.

In a case in Waltham in 2008 in which two carpenters died in a fall, a proposed fine of $10,500 against contractor Lymo Construction Co. Inc. was reduced by 66 percent — to $3,500.

New Jersey-based Newark Group, Inc. — cited for safety violations connected to the death of an engineer who fell from a ladder in Bradford, Mass., in 2008 — negotiated $38,000 in penalties down to a $16,500 fine.

Lymo’s president, Dan Lynch, declined to comment for this article; a spokeswoman for Newark Group,  did not return a phone message seeking comment.

“Massachusetts has always had fairly substantial construction activity. What hasn’t changed is the egregiousness of some contractors in completely ignoring safety regulations,” said Marcy Goldstein-Gelb, director of the Massachusetts Coalition for Occupational Safety and Health, or MassCOSH.

“Unfortunately, too many employers have determined that it’s cheaper to violate OSHA regulations than to comply with them, despite the human cost,” she said.

In 18 of the 32 Massachusetts fatal fall investigations reviewed, a lack of fall-protection equipment, such as safety harnesses or guardrails, was cited by OSHA as a violation. Also, in more than a dozen fall cases, employers were cited for failing to provide proper training to employees who might be exposed to fall hazards.

In one such case, in December 2006, Manuel E. Pesantez Sigueucia, 38, was on his first day as a roofer for Cunin Construction of Fall River when he lost his footing, fell 34 feet from a roof in Seekonk, and crashed head-first to his death. Cunin was cited for failing to provide adequate safety training or fall protection. The fine, which remains unpaid, was $5,700, OSHA records show. Cunin company officials could not be reached for comment. The company has no listed phone number, website or corporate filing documents providing contact information.

OSHA records also show that at least seven of the companies cited in Massachusetts since 2005 for fatal falls were repeat violators of OSHA rules. Among them was S& F Concrete Contractors, Inc., of Hudson, which had been cited at least three times by OSHA from 2005 to 2007, including a $2,500 penalty in 2006 for failing to provide fall protection. In March 2007, an S&F employee sustained a fracture in a fall, OSHA records show; no fine was imposed. Then, in December 2008, construction supervisor Michael Soares, 39, fell to his death from a roof.  S&F was again cited for lacking fall protection; the fine was $5500, OSHA records show.

An S&F spokeswoman did not respond to requests for comment.

The grim cycle of falls and fines has remained largely unchanged in the four years since state lawmakers took up the issue of construction safety, in the wake of a deadly scaffolding collapse at a construction site on Boylston Street in Boston that left three dead.

That tragedy prompted a legislative committee to issue a detailed report recommending that Massachusetts follow nearly two-dozen other states that have adopted their own stringent inspection systems for publicly or privately funded construction projects; pursue criminal prosecution of companies that willfully violate safety standards; and expand training of state building inspectors, local officials and others to enhance “the eyes and ears” of OSHA. The report found there were “not enough federal inspectors to successfully implement the needed oversight for all of the state’s construction sites.”

But the recommendations were never acted on, leaving safety enforcement solely in the hands of OSHA.

Goldstein-Gelb said that because OSHA is “grossly under-resourced,” employers have little incentive to adhere to fall-protection and training rules. MassCOSH issues annual reports detailing worker fatalities.

“OSHA’s not out there, checking on job sites, and (employers) know there are no local eyes on them,” she said. “The shame of it is, most fall fatalities are preventable.”

Labor unions have stepped up their own safety training and monitoring of worksites. The Building Trades Council, which provides extensive training to its members, works with contractors to ensure that non-union members also are trained; the Ironworkers Union, Local 7, has a retired member visiting worksites as a way to “keep companies in check,” said Stephen Williams, the union’s business agent.

Letitia Davis, director of the state health department’s Occupational Health Surveillance Program, said that while the construction industry, impacted by the economic slowdown, has seen fewer worker deaths overall in recent years, falls remain a “significant problem” in Massachusetts.

She said enforcement is a “critical component” in reducing fall hazards, but noted that policing residential construction is particularly challenging, given the dispersed workforce and the transient nature of construction jobs.

OSHA New England spokesman Ted Fitzgerald said fall hazards are a priority for the regional office, which pursues informal complaints, as well as formal investigations.

He said OSHA follows strict guidelines in determining fines, including taking into account a company’s size, prior history of violations and the gravity of the hazard. The maximum fine per serious violation is $7,000. Fines can be reduced for a number of reasons, including: reclassification of the violation, a citation is deleted, the employer took corrective action or is taking extra safety precautions following the citation, Fitzgerald said.

While the financial penalty is an important disincentive, Fitzgerald said: “Our goal is to get the employer to address and correct the problem and prevent it from happening again.” He acknowledged that follow-up inspections are not routine, in part because of a lack of resources; random inspections are usually targeted to larger construction projects.

The state’s Occupational Health Surveillance Program has tried to improve fall-prevention outreach to Hispanic and Brazilian construction workers and their employers. In Lawrence, a special program involving UMass-Lowell and a coalition of local groups is working with Latino workers, contractors and community organizations to increase construction safety practices.

In John Nadeau’s case, 3 ML Construction was initially fined $6,300; the company negotiated a $5,325 settlement, which still could be adjusted as long as the case remains open. Company officials did not respond to requests for comment on the case.

For her part, Michelini tries to put aside her grief and anger by remembering her brother’s last act as heroic. Nadeau was reaching out to stop his boss, Michael Larochelle, from slipping off the roof when both men fell. Larochelle, whose family owned 3 ML Construction, was seriously injured.

“He would have done the same for anyone. That was how my brother was,” Michelini said. “I loved him more than I can explain. If nothing good comes from what happened to him, it just kills me even more.”

The New England Center for Investigative Reporting is a nonprofit investigative reporting newsroom based at Boston University. Also contributing to this story were NECIR's associate director Maggie Mulvihill and researcher Sarah Favot.