OSHA Docket Office
Docket No. OSHA-2010-004
Technical Data Center
Room N-2625
U. S. Department of Labor
200 Constitution Ave, NW
Washington, DC 20210

Re: Docket No. OSHA-2010-004


Although, I am unable to attend the public meeting of February 10, 2010, entitled OSHA Listens: Occupational Safety and Health Administration Stakeholder Meeting, I am submitting the following comments as I am a “stakeholder” in the key issues facing OSHA. I sadly have obtained this status because my brother Gary Puleio was killed due to unsafe working conditions and I personally experienced the inadequacies of the regulatory system designed to protect workers and saw first hand the lack of accountability of corporations and the unbalanced scales of justice.

Gary Puleio (inspection # 303706683) was killed on the job at Meadville Redi-Mix Concrete in Meadville, PA on August 15, 2001. He had been employed there only 3 months as a non-union cement truck driver and fell 25 feet to his death, from a cement tower, while shoveling gravel off the hopper to clean it. The company claimed Gary just ‘wandered up there on his own”, without wearing any safety equipment, at the end of his driving shift rather than being assigned this dangerous task because he was the “new man”.

OSHA accepted this implausible story and after admitting no wrong doing, the company paid a $6000 fine for REPEAT violations for not posting danger signs at a confined space and not implementing measures to prevent unauthorized entry. This company had multiple serious violations issued only months before Gary was killed which were informally settled with reduced fines.

Full access to Gary’s case records under the Freedom of Information Act (FOIA) was denied. A copy of my appeal letter to gain full access to the records is attached below. The appeal to obtain full access and to review the “substantive” issues of the case was stalled for months. Finally, no further action could be taken anyway as OSHA requires that any citations or penalties must be issued within 6 months of an “alleged violation” as the neglectful killing of worker is called.

Corporations routinely negotiate with OSHA to have fines reduced and violations downgraded through a process called abatement while workers have no such access. As a stakeholder, I implore you to review this material and work to balance the scales of justice which are now so heavily tipped toward corporations. Family members must have more access to OSHA records, more input in OSHA investigation of injuries and deaths and more information about workplace laws and rights.


Details of Gary’s case and the OSHA “investigation” available at http://garypuleio.blogspot.com


Sincerely,

Donna Puleio M. D.
Workers Memorial Day Committee
Allegheny County Labor Council AFL-CIO

Attached is the FIOA Appeal referenced above:
FOIA Appeal

11/23/01

The Solicitor of Labor
U. S Department of Labor
200 Constitution Ave. NW
Washington, D. C. 20210

Greetings:

I am writing to appeal the decision of OSHA not to allow me access to all records, under the Freedom of Information Act, concerning the investigation of the accident that killed my brother, Gary Puleio.(inspection # 303706683) Several items were blackened from the file and two employee statements were excluded from the videotape under exemption 7(c ) and 7(d ). In the enclosed letter from Richard Soltan, which accompanied the “releaseable” file I did receive, my right to appeal was stated.

Allow me first to summarize the circumstances that have prompted me to make this appeal.

Gary Puleio, 53 years old, fell approximately 20 feet to his death from a concrete tower on 8/15/01 at Meadville Redi-Mix, where he had only been employed for 3 months as a truck driver. Gary had told his wife, Linda, the day before his death that he had been assigned the job of “shoveling gravel off the hopper” and had expressed concerns about his safety. Gary’s family and friends knew him to be very cautious and, indeed, to have a fear of heights. He had been undergoing physical therapy for a knee problem prior to becoming employed at Redi-Mix.

We began to question why he would be up on that tower without any safety equipment and performing a job outside of the scope of his truck driving duties, especially given his physical limitations ( having bad knees, being 53 years old) and his fear of heights.

On 10/3/01, Linda received a copy of citation # 303706683.
Redi-Mix was cited for a REPEAT violation of 29 CFR 1910.146(c)(2):
The employer did not inform exposed employees, by posting danger signs or any other equally effective means, of the existence and location of and danger posed by a Permit Required Confined Space (PRCS).

Redi -Mix was also cited for a REPEAT Violation of 29 CFR 1910.146(d)(1): Under the Permit Required Confined Space (PRCS) program required by 29 CFR 1910.146(c)(4), the employer did not implement the measures necessary to prevent unauthorized entry.

We were shocked that there was no mention of Gary’s lack of safety equipment, nor the fact he was performing a task outside of his truck driving duties.
I called Jim Watson, the Compliance Officer at the Erie office who investigated this case and was told that Redi-Mix management told him that Gary went up there ON HIS OWN and was not assigned that task. I was appalled to find out that this statement of extremely unlikely veracity evidently abrogated Red-Mix of any culpability in not providing safety devices, supervision or training to Gary.

The attached letter dated 10/11/01 (and marked pages 100-102) to John Stranahan, Erie Area OSHA director outlined my concerns. Please note that I asked about a “notice of informal conference”.(file page 15) The date and times were left blank. I wanted to know why our family was not informed of the time so we could attend as “representative of employee” (i. e. a representative of Gary). This question has not been addressed.

To further explore this tragedy, Linda spoke with Officer Brown of the West Mead Township Police Department and obtained the police report of this accident. Officer Brown told Linda that despite the fact he instructed a Redi-Mix operations manager, John Shartle, to keep the Redi-Mix employees he planned to get statements from separated until he could speak with them the men were NOT separated but were together in his office. This led us to question whether it may have been “suggested” to these men not to vary from management’s unbelievable statement that Gary went up there on his own.

The police report (file pages 82-91) was very disturbing to us. My letter of 10/28/01 (file pages 78-81) to John Stranahan outlines my concerns. I will reiterate them as follows:

1. Cady’s statement(file page 89) that “both Cady and victim have been up there numerous times” and the Winkler statement (file page 91) “victim is mixer driver and duties include going up onto batch plant and cleaning up debris so turntable can move” suggest that Gary was, indeed, assigned that task and did not just go up there on his own.

2. Paragraph 6, Sequence 02, Page 2,(file page 87) Incident Supplemental Report states “The victim also did not have any safety equipment on nor were there any indications that the victim had been wearing any safety equipment at the time of the accident(Note: THERE WAS NO SAFETY EQUIPMENT ON THE TOP OF THE BUILDING) “ Do you not think that this total lack of safety equipment would merit mentioning even if you chose to believe the implausible statement by an individual WHO DID NOT EVEN GIVE A STATEMENT TO THE POLICE that Gary wandered up there on his own?

3. Cady’s statement( file page 89) that he “ pulled his mixer in to be loaded” suggests that the turntable (mentioned in item #1 above) may have been turned on and began moving so as to fill the mixer truck below while Gary was on the turntable cleaning it ( a duty Winkler in item #1 above stated was Gary’s) Cady’s statement that “Jim (presumably Fulmer?) went back to the office to shut off the power” further suggests this. It seems indeed possible the Gary was thrust into the hole by the movement of the turntable. Is there any indication that there are any safety features on that turntable that prevent it from being turned on when someone is up there removing debris from it?

4. Paragraph 9, Sequence 2, Page 1 Incident Supplemental Report(file page 86) states “ There was a definite mark on the steel wall inside the bin where the victim had impacted the wall . The mark was approx. 3 feet directly above where the victim came to rest in the bin” This suggests that rather than Gary just falling into the bin that he may have been thrust into it by the moving turntable and was slammed into its wall with significant momentum prior to hitting the ground. Perhaps this could explain the “ large gash on the right side of his forehead” described in Paragraph 5, sequence 2, page 2, (file page 87)Incident Supplemental Report. Again, is there any way of determining the process for preventing that turntable from moving when someone is up there removing debris from around it?

5. Winkler’s statement that he “felt pulse but victim was not breathing” suggests that it was realized rather quickly what had occurred (perhaps Gary being thrust in hole by turntable?) and that he got to Gary very soon after he hit the bottom of the bin. If story related by Fulmer to Watson and reported in Erie-Times-News “Worker dies at Meadville concrete plant” 8/16/01 , that Gary wandered up there on his own and was only discovered to be missing when he was needed for another task, I would presume he would have been dead for a while when discovered. He would be with out both respirations and pulse.

Furthermore, in the police report (page 88 of file) Officer Brown notes “After speaking to Mr. Watson and there being some DISCREPANCIES between what Keberts (aka Redi-Mix) had told him and what I told him during my investigation Mr. Watson requested a copy of my police report.” We found this a most disturbing statement and asked Mr. Stranahan about the nature of these discrepancies.

Mr. Stranahan did not respond to either of my letters, but in an article entitled “Redi-Mix pays penalty for worker death” Meadville Tribune 11/15/01,(attached) he dismissed my concerns as “minor”. Mr. Shartle, the operations manager who was unable to comply with Officer Brown’s request to keep the employees separated again asserted in this article that Gary “took it upon himself” to go up to the tower and stated that the reason Gary died was a “mystery” to him. I can only hope the members of the community who read this article recognized as preposterous the comments of Mr. Shartle and those of Mr. Stranahan as callous.

Finally, on 11/17/01, I received a letter dated 11/8/01 from Richard Soltan, OSHA Regional Director, who also wrote on the behalf of Mr. Stranahan, along with the “releaseable” records from the file. Mr. Soltan’s letter and the files raised even more concerns. It appears that Gary was up on that tower on other occasions. Please review the following:

1. Page 28 of file: one employee stated that he had seen Mr. Puleio just prior to the accident and asked him where he was going. Mr. Puleio replied “to clean the batch plant” If, indeed, it was improper for Gary to be up there why wouldn’t this violation of the rules reported?
2. Page 9 of file: “ Many drivers access area to clean spillage.”
3. Page 7 of file: “Other employees interviewed (mainly drivers) stated that they do not wear harnesses while in that area.”
4. Page 27 of file: “Mr Puleio stated…he would not go up on top of the batch plant if not required.”

In the Meadville Tribune , “Redi-Mix pays penalty for worker death”, 11/15/01, operations manager, John Shartle, is quoted “The guys that are trained in that area have that equipment. They are the ones to go up there. If (Puleio) had been instructed to go up there, he’d have the necessary equipment.” The above statements certainly make one question the veracity of Shartle’s claims. Even though no one ALIVE can say for certain if Gary was specifically assigned to go to the top of the tower on 8/15/01, the day he was killed, it certainly seems to be past practice to send drivers, including Gary, up there without safety harnesses.

If, as Shartle claims “the main work done up there is general maintenance and the workers who do that have the necessary safety equipment and skills” , then perhaps Redi-Mix could report to OSHA who was last assigned to go to the top of the tower to clean it prior to Gary’s death. Does there exist any record of who may have been “shoveling gravel off the hopper” on 8/14/01, the day Gary told Linda he had concerns for his safety? Would there be any documentation that this individual was one who had the necessary safety equipment and skills? Is there any indication of workers being cited for disobeying the company policy by deciding to go up there seemingly “on a whim” without being instructed to do so and without wearing any safety equipment?

In Mr. Soltan’s letter he stated “ there is a shutoff switch at the top of the catwalk which employees use to turn off electrical power to the turntable before they walk out onto the batch tower.” Was Gary ever instructed about the existence and function of this switch? Does page 64 of the file, a simplistic true-false test with Gary’s signature affixed, constitute proof he was oriented to this safety procedure? Since Gary was not one of , as Shartle phrased it, “ guys that are trained in that area” perhaps he was not informed to use it.

Mr. Soltan’s letter indicates that the OSHA inspector recalled that the discrepancies mentioned by Officer Brown involved 2 items: (1) whether or not Gary had a fear of heights, and (2) whether or not he was an energetic , self motivated employee or just a typical worker. All of us who knew Gary, knew he feared heights. I knew my brother quite well; at the end of his work day he would not take it upon himself to do risky unpleasant work that was not well paying. He was the father of 2 children, a 10 year old handicapped boy and a 3 year old boy. I know my brother would want to be home with his children. He was 53 years old and afraid of losing even the risky low paying job he held at Redi-Mix, by not following a supervisor’s orders, so he went to the top of that tower against his better judgment and died as a consequence of it.

At Gary’s funeral, a co-worker of his approached my sister and me and tearfully offered his condolences and stated “new guys always get the shit work”. Unfortunately we were too distraught to get his name or understand the significance of what he was telling us at the time.

I remain steadfast in my belief that Gary was assigned to go up there, with no safety equipment on 8/15/01, just as he and other drivers had been assigned on other days.

I realize, as Mr. Soltan states in his letter, that “the size of any OSHA fine can never equate to the injury sustained by the worker”. Similarly, I realize that Pennsylvania’s Workers Compensation Law is “no fault” and that no matter how much negligence is uncovered, the surviving spouse receives a fixed percentage of the victim’s wages. However, underlying these principles should be a just, thorough investigation not one that just perfunctorily accepts the egregious claims of the cited employer who would have a financial incentive to minimize any wrongdoing.

It certainly appears that OSHA accepts the implausible statements made by Redi-Mix management as irrefutable facts and ignores the views of Gary’s co-workers and family.

I feel that we should know ALL the statements of the employees in their entirety and have access to the videotaped statements. I especially want to see the statements that are blackened out on pages 29 and 36. What prompted an employee to make a statement on 8/22/01, seven days after the accident (page 36)?

As Gary is no longer alive and here to speak for himself to directly refute the implausible claims of Redi-Mix, we, his family, are his “representatives”. Recall earlier in this letter, I stated that the time and date of the “notice of informal conference” (file page 15) was never told to us despite our request to attend. We wanted to attend as a “representative of employee” (i.e. Gary). We have never been asked to give any input into this case.

Only after Redi-Mix paid a paltry $6000 fine and admitted NO WRONGDOING did we even get a response from Mr. Soltan and the “releaseable” file containing omissions of the very statements that could refute Redi-Mix’s claims.

We as Gary’s representatives appeal to you to send us the ENTIRE file.

I realize the purpose of the exemptions is to protect the identity of confidential sources and protect them from harassment, discrimination and retaliation. I can appreciate the consequences workers at Redi-Mix may face if they disagree with Mr. Shartle about the “mysterious” nature of Gary’s death. Certainly Mr. Shartle had ample time to identify those workers who may have been able to make statements to the police when he failed to separate them as Officer Brown instructed him.

Please give careful consideration to my appeal. I hope that this appeal will give you an opportunity to review this case and perhaps your conscience as well. I would appreciate any comments you have about the concerns outlined in this letter.

I hope to find peace and closure by knowing I did everything I could to find out the truthful circumstances surrounding my brother’s death despite the obfuscations of Redi-Mix. As a taxpaying US citizen, I hope for cooperation and accountability from those agencies my tax dollars fund.


Sincerely,