By Jared Chausow
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At the same time that some of the state's most powerful labor leaders are honoring Governor Pataki, local union officials are fighting a desperate battle to get the state to enforce its own workplace safety laws.
This week, in an unusual display of political support for the Republican governor, state AFL-CIO president Denis Hughes held a $500-a-head political fundraiser for Pataki in Albany. The event came days after another New York labor powerhouse, health workers union leader Dennis Rivera, also honored Pataki at a rally at the headquarters of his 1199/Service Employees International Union on West 43rd Street.
Both events were held despite what union officials acknowledge is a massive Pataki default on basic worker protection issues.
Unions representing public workers 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.
PESH has fallen so short of its mandate that federal regulators, who provide roughly half of its $6.6 million budget, have refused to certify its program and have charged it with repeated violations.
Created under legislation enacted in 1980, PESH's mission is to investigate accidents and health hazards at government workplaces. The agency is the state's version of OSHA, the federal Occupational Safety and Health Administration, which covers only private-sector employees.
Statistics show that New York's 1.2 million city and state workers are badly in need of protection, with an accident rate almost double that of workers in the private sector, thanks in part to highly hazardous jobs. The Public Employees Federation found that workers in state mental institutions, for instance, have an injury rate double that of construction workers.
PESH's creation was one more proud labor milestone for New York State, which has a long history, under both Republican and Democratic governors, of leading the nation in protecting workers' rights.
But state records and federal reports show that under Pataki, PESH began a steady downward slide.
A 1997 audit by the state comptroller found that PESH performed "fewer inspections and assess[ed] fewer penalties" between 1995 and the end of 1996. The numbers continued to tumble. State records show that from 1997 to 1999, PESH inspections slipped 46 percent, from 3432 in 1997 to 1863 in 1999, while violations dropped 41 percent, from 7830 to 4618.
State officials insist that inspections and fines are down because improved safety conditions at work have resulted in fewer complaints. "We are doing our job and doing it well," said Betsy McCormack, spokesperson for the labor department. "Employers are increasingly complying with our regulations."
Unions say workers are simply disenchanted with the system.
"Yes, complaints are down in my area," said Lee Clarke, safety and health director for the city's biggest public workers union, District Council 37 of the American Federation of State, County and Municipal Employees. "And the reason why is that we are not filing as many as before. Why should I? If I know there are violations that have been documented by my staff of safety and health experts and then PESH comes in and gives the city a clean bill of health, I am doing a disservice to my members."
Unions aren't the only ones concerned about Pataki's attitude toward workplace protection. A recent analysis by OSHA detailed numerous shortfalls in the agency's performance.
OSHA found that almost 30 percent of the PESH complaints it examined were improperly classified as less than serious, allowing the agency 120 days to conduct an investigation. Had they been properly tagged as "serious" hazards, the agency would have been obligated to conduct an inspection within 30 days. Even where complaints were classified properly, OSHA found that PESH's investigations still took months longer than required. The PESH office in New York City was one of the worst offenders, with some serious complaints remaining uninspected for seven to nine months.
"Unfortunately, many of these deficiencies are the same ones which were uncovered during [a] 1998 special study, and either these problem areas reappeared or were never adequately addressed," OSHA said in its report.
Part of the problem is understaffing. Although agency officials said PESH hopes to have a full staff of 80 employees soon, OSHA found that in 1997 PESH had only two-thirds of the safety inspectors it needed and three-quarters of the health investigators.
"It got to the point where the inspectors at [PESH offices on] Hudson Street wouldn't return our calls, wouldn't respond to our letters," said Clarke, a safety expert for 20 years. "They would do anything they could to go to a workplace without a union representative on hand. And they took their damn sweet time responding to fatalities, which the law says must be responded to immediately."
The deaths of two DC 37 members in 1999 provided graphic examples of PESH's lax enforcement, union officials said.
After city laborer Christopher Postiglione was killed by a hit-and-run driver on the Long Island Expressway, OSHA found that PESH waited a leisurely two weeks after his death before opening its probe and ultimately making only "recommendations" for safety improvements by the city. DC 37 insisted there were several violations. Finally, eight months after Postiglione's death, PESH cited the city for failing to train its workers and use proper road barricades.
In another incident, city project manager Joseph Lohman was overseeing an emergency water main repair on Manhattan's West End Avenue when a passing tractor trailer struck a barrier that knocked Lohman into an open trench. Lohman died six days later. PESH opened its investigation promptly this time, but didn't issue its report until last December14 months after the accident.
PESH has also turned a blind eye to potential health hazards, union officials charge. District Council 37 officials protested last year that city parks department workers weren't getting proper training for handling pesticides and other chemicals. Such action would be in violation of the state's Right to Know law, which requires training for workers exposed to toxic hazards. PESH, however, found no violations. Frustrated, the unions turned to Attorney General Eliot Spitzer, who found much of the parks department's training "essentially meaningless" and the agency in violation of the law.
The Pataki administration's safety failures have gone virtually unnoticed by the mainstream media. Only the civil-service weekly The Chiefand reporter Molly Charboneau in DC 37's Public Employee Press, along with other public worker union newspapers, have reported the problems.
So why are unions toasting Pataki, who faces a likely tough Democratic challenge for reelection in 2002? Union officials, off the record, acknowledge it is simply part of labor's traditional go-along-to-get-along, nonconfrontational style in Albany. Hughes, of the AFL-CIO, insisted no one should read too much into the Pataki affair.
"This is definitely not an endorsement," said Hughes, who helped form a coalition of public unions to examine PESH last year. "That's a year away. It's true we have a real problem with enforcement of public employee and safety regulations. Their record is not good at all. It is pretty abysmal. It got worse under this administration."
The fundraiser, expected to raise $50,000 for Pataki's war chest, will help "open the door," said Hughes. "It says, 'We want to work with you.' "
Research: James Wong