Page 3 of 3

Built for a Simpler Era, OSHA Struggles When Tower Climbers Die

Tower climbing is now ranked as one of the most dangerous jobs in the US, so why isn't OSHA doing more to protect climbers' lives?

| Wed Jun. 13, 2012 6:00 AM EDT

With the exception of the Sulfridge case, OSHA has mostly targeted small subcontractors for discipline when tower climbers were killed in accidents.

But even companies hit with multiple citations often received deep discounts on fines based on their size or lack of previous safety violations, OSHA records show. Some obtained additional reductions by appealing or found ways to sidestep penalties altogether. OSHA waived a $6,300 fine issued after a tower climber sustained massive injuries in a 240-foot fall when it could not find the company owner, Ryan Chapman, who had shut down his business and started a new one. Contacted by ProPublica and PBS "Frontline," Chapman said he was unaware of OSHA's efforts to reach him.

"I figure if they want to talk to me, they'd find me," he told a reporter. "I mean, you got my number." (We tracked down Chapman's phone number on an online industry message board.)

With about 800 tower-climbing subcontractors operating nationwide  many of them small and short-lived it's unlikely that pressing these companies will bring systemic safety improvements, said David Weil, a Boston University economics professor who studies subcontracting.

"It's like the old game of Whac-a-Mole," he said. "You can enforce your OSHA standards on that individual contractor and hit the mole. But there are a lot of other contractors that are going to pop up."

In 2006 when 19 tower climbers died—10 of them working on cell sites—OSHA tried a new approach to improve safety in the industry. It launched a partnership with the National Association of Tower Erectors, the trade group for tower companies, aimed at reducing injury and fatality rates and raising awareness of key worksite hazards. As part of the initiative, the agency offered discounts on regulatory fines and NATE members agreed to audit their own safety practices.

The early results looked promising: 85 NATE members joined in the first year, performing almost 600 self-audits and sending more than 1,000 workers for additional training.

"It was great," said Gordon Lyman, a safety expert at WesTower, a large tower company, and a member of NATE's OSHA relations committee. Jim Coleman, NATE's chairman, said in a written response to questions from ProPublica and PBS "Frontline" that the partnership helped change the industry's relationship with OSHA from adversarial to collaborative.

But there was a sticking point between the agency and the group, correspondence and email obtained under the Freedom of Information Act shows.

NATE leaders wanted cell carriers, tower owners and general contractors to participate in the initiative. In a Dec. 20, 2006 e-mail to OSHA, Patrick Howey, then the executive director of NATE, said companies that hired subcontractors with poor safety records were "a major source of accidents."

"It's like the old game of Whac-a-Mole. You can enforce your OSHA standards on that individual contractor and hit the mole. But there are a lot of other contractors that are going to pop up."

It's unclear if OSHA or NATE formally invited the major cell companies to participate in the safety partnership, but they were welcome to join. None did. In its statement, AT&T said it strongly supported the partnership, which the carrier credited with "a dramatic improvement in worker safety," but declined to say why it did not participate. T-Mobile did not respond to questions about the partnership. In an email, a Verizon spokesman said the company had no record of being invited to join. A statement from Sprint said the company did not participate because "we are not in the business of erecting towers."

Rob Medlock, OSHA's Cleveland area office director and an agency point man for the NATE partnership, said carriers had little incentive to get involved as they were already outside of regulators' reach.

"It puts you in the ballgame, where right now you're outside the park," said Medlock, who left OSHA in 2010.

As cell companies raced to expand their networks in 2008, 12 climbers died, eight of them on cell towers. Three worked for companies enrolled in the OSHA-NATE safety initiative. The relationship between OSHA and NATE began to sour.

In a September 2008 conference call, OSHA officials told NATE leaders that the group needed to "step up" by hiring a safety specialist, conducting its own accident investigations and creating an accident database, agency meeting minutes show.

Howey fired back in a Dec. 4, 2008 memo, arguing that it was OSHA and the companies on top of the contracting chain who needed to step up.

Carriers and others who demand "unrealistic scheduling" or hire unsafe contractors are "one of the biggest factors in tower site fatalities and must be addressed," Howey wrote. "OSHA needs to find a way to deal with these companies or accept that fatalities are going to continue."

Medlock agreed, but knew OSHA didn't have the muscle to follow through. "My thought was, 'I wish we could,'" he said.

The partnership dissolved in November 2009.

* * *

There's much debate among federal regulators and industry experts on how OSHA should enforce safety standards more effectively in industries like tower climbing, which rely heavily on subcontracting.

Some, including several former OSHA officials, say Congress needs to change the law that created the agency more than 40 years ago to expand the definition of "employer" to include companies that contract out work.

"We have laws that are structured in a way that no longer look like the workplaces that they're trying to regulate," said Weil, the economics professor.

Medlock and others said OSHA could create rules to achieve the same goal administratively.

John Henshaw, OSHA's administrator from 2001 to 2004, said any attempt to broaden the agency's authority would face stiff opposition from businesses, whose challenges could clog up the court system. Instead, he suggested that simply making it known which accidents are connected to which cell carrier would encourage companies to ensure that subcontractors address safety problems.

"The American public can put pressure on those cell carriers, and ultimately only do business with the ones who are doing it the right way," he said.

For that to happen, OSHA would have to start systematically collecting information on contracting relationships when tower workers die. Barab said regulators faced obstacles in trying to do this.

"It's a lot of work to try to trace things up to the ultimate owner," he said. "We're talking about sometimes multiple levels here."

Still, ProPublica and PBS "Frontline" was able to obtain this data for fatalities since 2003, sometimes just by making a few phone calls, and Barab conceded that OSHA could do the same.

"It would probably not be a bad idea for us to do that," he said.

Travis Fox of PBS "Frontline," Robin Respaut and Kirsten Berg of ProPublica, Habiba Nosheen and Sam Roudman contributed to this report.

This is the second of a two-part series. Read the first, In Race For Better Cell Service, Men Who Climb Towers Pay With Their Lives, and watch the PBS "Frontline" program.

Correction (12:45pm): A reference to the Kentucky Department of Labor has been corrected to the Kentucky Labor Cabinet.

Page 3 of 3