Open Season on the Open Shop
This is not indicative of a body thats trying to achieve justice, thats trying to seek the truth, thats trying to be equitable. Its indicative of a witch hunt.
attorney Kirk R. Harrison, speaking
By Steve Miller
hen Wayne Oxendine ran into his former state of Nevada workplace safety colleagues at the State Farm construction site in south Reno, it was easy to see that the iron workers union was pushing them hard.
For one thing, Senior State Safety & Health Representative Fred Weaver told him so, right off the bat.
For another, Oxendine could see with his own eyes that Weavers boss, Calvin Murphy, was being escorted about the work site by the business agent for Iron Workers Local 118, Rich Ciesynski.
And finally, says Oxendine, there was the clear appearance of a disproportionate response from the State of Nevada. The day before, June 28, 1993, when a steel structure section being erected on the Longley Lane site had collapsed, it had produced no injuries. Yet it was continuing to receive intense scrutiny from the states Occupational Safety and Health Enforcement Section (OSHES).
Mishaps of all kinds are so commonplace in construction work that state and federal regulations only require that occupational safety and health authorities be notified in the case of "catastrophic accidents." In June 1993, when the State Farm site incident occurred, says Oxendine, the definition of a "catastrophic accident" was injuries involving hospitalization of five or more people, or a fatality. But as soon as the slow-motion structural failure had started, according to independent observers interviewed by Oxendine, emergency safety/evacuation procedures had kicked in with all the success that could have been hoped.
Oxendine himself was clear on normal OSHES procedures. Just five months earlier he had been an employee of the agency himself. Then the Las Vegas chapter of the Associated General Contractors had hired him away to work in the AGC safety office. When notified of the accident that had occurred around 10:30 A.M. on June 28, he had flown up to Reno to investigate. Early the next morning he was on the job site.
Something was up
What Oxendine saw was that even though the senior OSHES inspector on site the day before had reached a determinationthat the accident stemmed primarily from freak and unforeseeable wind conditionsdecision-makers in the state agency were reluctant to go along with their own inspectors finding. Clearly something was up: OSHES had descended on the work site June 29 in even greater force. When District Director Murphy had arrived, men said, hed arrived in the company of union honcho Ciesynski, whothough representing no employees of the open-shop steel erection companyhad assumed the mantle of resident site expert. Squiring Murphy around the construction property, Ciesynski and other union officials were telling him what was supposedly what in terms of guy wires, bracing andaccording to people who listened indangerous non-union firms from Las Vegas.
The bottom line demand of the strenuously lobbying union officials was for OSHES to hit the open shop steel erectoran AGC member firm with an outstanding safety recordwith a ruinous citation for serious worksite negligence. Coincidentally, of course, the company the union officials wanted cited just happened to be an old foe that had ended its contracts with the same iron workers union some 11 years earlier.
And there was a larger context in which Ciesynskis lobbying had to have an especially potent effect. Danny Evans, brother of state AFL-CIO president Claude L. "Blackie" Evans, was already the new de facto administrator in the OSHES agency and clearly on the way to becoming Murphys own boss. Brother Danny was not only a former business agent for another Nevada AFL-CIO union, the United Steelworkers, but a political appointee of Governor Bob Miller. Sure enough, four months later Evans was formally named OSHES Chief Administrator.
These days Oxendine emphasizes that he himself supports unions and notes the company he works for has a union that he respects. But his own measured language suggests that what he was witnessing back in 1993 was an effort by union bosses, assisted by a few go-along state bureaucrats, to destroy a non-union company.
"I believe in unions," he says. "But Nevada is a right-to-work state, and those non-signatory agencies, in my opinion, have the right to perform work."
The company being pushed into OSHES crosshairs as Murphy and Ciesynski strolled around the State Farm job site was Las Vegas-based Chris Crane Company. It had been a favorite bugaboo of Nevada unions ever since 1982 when, says the companys combative president Grant Cox, four years of threats, harassment and coercion by Operating Engineers Local 3 in Las Vegas led him to terminate all his union agreements. The war against Cox that followed [click "Built That Way," to read an account] has on occasion left traces in the news columns of Nevada newspapers. More often, though, it has gone on silentlyand viciouslyin the shadows.
For example, just four weeks before the structural iron collapse, unknown culprits had come onto the State Farm work site late at night and committed some $25,000 worth of sabotage. Though 14 subcontractors were on the project, only expensive equipment belonging to Chris Crane Co. was targeted. Dirt was poured into the fuel tank of the hydraulic crane, the ignition system was broken out of an arc welding unit, and the control panel was torn out of a motorized lift, among other damage.
The midnight vandalism occurred right after a federal judge ordered Ciesynskis Iron Workers Local 118 to stop its illegal picketing of the State Farm work site. Carrying signs saying "Chris Crane Unfair to Iron Workers," about 12 pickets had on May 11 started to man two gates to the site, discouraging members of other unions from going to work.
In contempt of court
But that picket line had violated a broad prohibition issued by the United States Court of Appeals for the Ninth Circuit in 1987 and reaffirmed three years later. When Chris Crane attorneys asked for enforcment of the court order, Iron Workers Local 118, for its knowing violation, was judged in contempt of court. Later, in 1994, a three-judge federal panel levied a $10,000 fine on the union to be paid in installments over 36 months.
Other furtive harassment of the Las Vegas company continued on the work site. The first week in June an anonymous phone complaint to the OSHES offices brought inspector Fred Weaver out for an unannounced visit. But what he found, his report said, was an exceptionally well-ordered construction process. "This entire job site was exceptionally clean and the steel erection was very neat," he wrote, adding that in one and a half hours hed spent observing steel erection hed observed no standards being violated. Some of the charges made by the anonymous complainant on the telephone appeared to have been based in ignorance, Weaver suggested in his written report.
Then on June 28, when the section of steel scaffolding collapsed, OSHES got another anonymous phone call.
Still today, some five years later, the exact cause of the State Farm steel collapse remains largely a mystery to all the actors in the subsequent dramaincluding, by sworn testimony, OSHES itself. Yet by far the best buttressed estimate of what must have been the precipitating cause was given by the experienced senior OSHES inspector Fred Weaver promptly at the end of his first inspection June 28. Contractors and subcontractors that day were told that the freak wind phenomena reported in the area around the time of the collapse appeared an uncontrollable and unforeseeable circumstance. Since, on that basis, none of the contractors need fear a citationand all the insurance, reputation and other problems that come in its wakeWeavers initial finding was welcome news.
Feds report wind shear
In the next few days, evidence supporting Weavers original assessment multiplied. Wayne Oxendine, conducting the AGCs inquiry, contacted the National Weather Service at the Reno-Tahoe Airport. Just seven-tenths of a mile from the Longley Lane site federal weather-watchers on June 28 had been registering serious wind shearthe recently researched phenomenon of sudden and violent changes in wind direction and speed. Computer-monitored wind-vane systems at the airport had recorded winds that day as high as 28 knots (about 32.2 mph.) But because wind shear is a fugitive and invisible phenomenon, the exact velocity that Monday could have been even higher. Normally, the best reporting on wind shear comes from pilots who have just experienced the micro-burststhe violent masses of downward rushing cooled airby flying through them (and, of course, living to talk about it). Sure enough, wind shear is what pilots descending over the Longley Lane construction site and landing at the airport had been reporting.
Under the Nevada Occupational Safety and Health Act, for a company to be cited for an unsafe workplace a finding is first required that "the employer did not furnish employment and a place of employment free from recognized hazards." Thus the recognized or unrecognized status of a hazard is key.
How "recognized" is the wind shear phenomenon? Even today, some five years after the State Farm site incident, efforts to detect and cope with the invisible and sometimes deadly micro-bursts are still in relative infancy. It was only in 1996, for example, that the U.S. Air Force responded to the Croatia crash of Commerce Secretary Ron Browns plane by announcing it would begin adding wind shear detection equipment to its passenger fleet. Planes to receive the recent technology were to include Air Force One and other craft that fly the president and vice president.
Thus, because of the general lack of information about wind shear, it would seem clear that under Nevada law the workplace situation that day on Longley Lane did not qualify as a generally recognized hazard.
The Reno engineering firm of Martin, Peltyn & Early took that same view when they were hired by Chris Crane after the collapse. Asked to review the companys practices and procedures and identify the mishaps cause, the prominent firm issued a declaration that "Nothing in the described erection procedures would appear to indicate any type of inadequacies." In MP&Es opinion, it was "the high wind and its sudden shift in direction" that constituted the mishaps primary cause.
Admitted political pressures
But if the hard data and engineering authorities were all lining up to support inspector Weavers initial findings, political pressures were already frightening OSHES administrators away from those same findings.
District director Calvin Murphy himself, in the presence of several witnesses, said he was being pressured by the union to "find fault with Chris Crane Company." Then on July 9, at the closing conference for the investigation, Weaver also reportedly said, "I am under a lot of pressure here. No matter what my personal feelings are, we are probably going to have to issue a citation."
On July 15, OSHES issued Chris Crane an official citation and a $5,000 penalty. Stated as grounds were the general "recognized hazards" clause of the state law, plus the assertion that the "structure was not adequately braced, supported, secured, stabilized, or reinforced to prevent collapse." While the citation acknowleged the wind speeds up to 25 mph mentioned on one page of the National Weather Service report, it ignored the higher wind speeds, up to 32 mph, mentioned on another page. And it studiously, rigidly, ignored the entire phenomenon of wind shear, going so far as to even avoid mention of the very term. Blandly, the agency said that it "does not agree with the wind theory."
On August 9, Chris Crane filed its response. Included were new findings by the independent consulting structural engineer, Kirk N. Ellis & Associates. Hired by the city of Reno to evaluate post-collapse repairs proposed for the State Farm site, Ellis had found that the anchor-bolt system specified by the projects overall architectural and engineering firm had been wholly inadequate from the very start. In effect, wrote Ellis, the anchor-bolt situation had been an accident just waiting to happen.
Ironically, this was very close to the position that Chris Crane Co., for weeks prior to the collapse, had been arguing. Although not an engineering firm and with no engineering or design responsibilities on the project, Chris Crane had identified the anchor-bolt design problem [see illustration, page 8] back in May. Then, when some anchor-bolt connections failed during initial construction, tearing out of the concrete foundation, Grant Cox himself had made the issue top priority. Pulling his own employees off the site, Cox had gone to the general contractor, Hubert, Hunt and Nichols, and formally questioned the unusual two-bolt method specified in the project contracts by the buildings design engineers, Lester B. Knight & Associates of Illinois.
Experts of record approve
Both the general contractor and the structural engineer recognized that there indeed was a problem and came up with a presumed solution. A change order was given the concrete contractor who was responsible for placing all the anchor bolts. Cox, however, continued to warn that on the basis of his own experience, the solution did not appear sufficient. But he was assured by the general contractor and the project engineer that it indeed was. Not only did they point out that their solution had been approved by the City of Reno and was within code, but they also emphasized that they, not Chris Crane, were the experts of record and had the responsibility. And they had made their decision.
"The general contractor issued a statement, along with the general engineers," says Cox, "that we were not engineers, [and] that we were to proceed with the project or they would default our contract." But four weeks later, following the collapse, City of Reno consulting engineer Kirk Ellis came down squarely on Coxs side of the argument.
Even "[u]nder existing straight vertical gravity loads only," wrote Ellis, "the naked anchor bolts are already loaded beyond their full safe load capacity." Given any additional pressure from wind on the side of the huge 46 foot tall I-beams, he said, "the tops of the projecting anchor bolts would be greatly overstressed."
For the "potentially unsafe situation" Ellis prescribed a number of what he called "emergency, temporary actions" as an "immediate FIX." Supporting his position with several pages of calculations and diagrams included with his report, Ellis warned that going back to the original architect-engineers design for the columns attachment to the foundation just risked another, similar, collapse.
"It is my belief that wind or other lateral loadings, added to the present condition of unshimmed 2-bolt column base plate connections, could initiate additional collapse possibilities," wrote Ellis.
The Ellis assessment included in Coxs response to the OSHES citation was accompanied by the evaluation done by Martin, Peltyn & Early and the report by OSHES own former employee, Oxendine, part of which were the reports from the National Weather Service.
Noting all the evidence, Cox asked that the July 15 citation be vacated. "Chris Crane Company has complied with all OSHA and ANSI [American National Standards Institute] regulations, and all applicable standards," he wrote. "The collapse was caused by wind shear and under-designed anchor bolts."
Indifferent and ignorant
Calvin Murphy, however, opening the August 10 "informal conference" for hearing the request, appeared indifferent to the submitted evidence and ignorant of the basic facts.
According to a Las Vegas AGC summary of the conference procured by Nevada Journal, when association safety director Robert Gass was midway through a presentation of the evidence in the package, Murphy interrupted. What he wanted to know was why Chris Crane Co. had not installed "girts."
Cox then explained that girtshorizontal bracing around the side of a metal buildingwere in use on the portion of the building that collapsed.
"Murphy then asked Weaver if this was true," says the AGC summary. "Weaver said that yes, such a system was in use on the section of building that collapsed. Also Weaver stated that he had pictures to evidence this fact."
Murphys response, according to the AGC minutes, was to send Weaver out of the room.
Gass then continued with the last part of his presentation, noting in summary that "According to both professional engineers, AGCs investigation and Fred Weavers initial findings, the collapse was caused by wind shear which was an uncontrollable and unforeseeable circumstance."
The response from Murphy, suggests the AGC record, was merely to repeat the bland and obscuring stance affected earlier. He said the agency "did not think wind shear was a factor."
But the conference did reveal that OSHES was trying out a new justification for the citation already issued. The agency, too, had read the Ellis report to the City of Reno. And the new OSHES view, as stated in the meeting by supervisor Chris Davis, was interesting in a perverse way. Chris Cranes earlier conscientious efforts to resolve the two-bolt anchoring problem, asserted Davis, were viewed by OSHES as an admission of prior knowledge of a structural deficiency. And when Chris Crane relied on the expertise of the project engineer and general contractor, the Las Vegas firm, the state was alleged, had exposed its employees to danger.
"[Grant] Cox asked Davis why the other contractors [who] were aware of this situation had not received citations," recounts the summary. "Davis stated that there were certain procedures and guidelines that dictated which employers were cited and which were not, but that since these procedures were very complex, he would not try to explain them. Cox asked if he could be informed of said procedures. No explanation was offered."
Murphy then said that, "in view of the vastly differing opinions he was going to refrain from making a determination and recommended that Chris Crane Company take this matter to contest." The conference was closed, and in its shameful entirety had taken only 25 minutes.
The next day on behalf of Chris Crane Co., the AGCs Bob Gass requested a formal hearing before Nevadas Occupational Safety and Health Review Board. It would take two years and one month before the appeal was heard.
During that period Chris Crane attorney Kirk R. Harrison filed several dismissal motions with the hearing board. Though none were granted, the jousting between Harrison and the OSHES counsels did demonstrate the states continuing difficulty coming up with a convincing justification for its assault on Chris Crane.
Harrison noted that at the very outset of OSHES inquiry, inspectors had asked whether enough guy lines had been used. And when Chris Crane had explained the contract specificationsthat guy lines were to be used only for alignment and plumb, not supportthe inspectors had been satisfied, and had agreed that the collapse was a function of the freak wind conditions.
Then at the August 10, 1993 meeting, OSHES had indicated it believed Chris Crane was culpable because the company had prior knowledge of the two-bolt anchoring problem.
In the middle of 1994, when Harrison submitted a dismissal motion based on OSHES August 10 position, he was surprised to find legal counsel for OSHES answering with an opposing brief that just ignored the whole question of the two-bolt anchoring system. Instead, OSHES returned to the old allegations about an insufficient number of guy linesor, alternatively, a "failure to install cables or guylines from top to bottom of the columns "
For OSHES to keep dancing from theory to theory, fumed Harrison in his next brief, "violates all principles of fair play and good faith conduct." Nevertheless he did address the latest position of the state agencyand apparently with enough force to scare administrators away from attempting to use it in the eventual hearing.
Harrison noted that by structural engineering standards, what Chris Crane had been erecting was deemed a self-supporting or free-standing structure, which is supposed to stand on its own. He also noted that under the American Institute of Steel Constructions code of standard practices, once such a structure was up and fastened, the responsibility of the steel erector was not to continue to provide temporary supports, but to remove any that are there.
State wanted dangerous situation
"Moreover," wrote Harrison, "the [agency] is relying upon the totally false assumption that guy lines are used for structural support." And he quoted the section of Chris Cranes contract stating the temporary guy lines were to be provided "to achieve proper alignment."
Harrison reminded OSHES that its proposed guy-wire "remedy" was contrary to the plans and specifications for the State Farm building project. He could have also noted thatin the view of city of Reno consulting engineer Ellisit would have been dangerous.
Ellis letter, read closely, suggests that attempts at cable-bracing subjected the bases of the huge columnsalready weaker because of the two-bolt anchoring methodology to even more stress. And when Chris Crane Co. later, continuing the project after the June 28 collapse, sought to absolutely insure against any further problems by installing hundreds of guy cables to add support to the structure, it was told to take them off.
"The structural engineer for the City of Reno actually red-tagged the building for this reason," recalls Grant Cox. "We had to do a $44,000 change order to correct that problem."
By the time Chris Cranes long-awaited hearing before the Nevada Occupational Safety and Health Review Board was about to open on Wednesday, September 13, 1995, OSHES administrators knew better than to try the not-enough-guy-wires theory again. Inside the agency there must have been consternation. What were they going to do?
On September 12, one day before the hearing, Kirk Harrison got a telephone call from OSHES special counsel John Aebi. According to Aebi, by the most marvelous coincidence, OSHES just the day before had stumbled upon a brand new witness. On Mondaya mere two days before the hearing and more than two years after the steel fellprovidence had presented to the agency a man who claimed to have been visiting the job site June 28, 1993, looking for work. While there, goes the tale, he had witnessed a crane owned and operated by Harrisons client bump the steel structure, knocking it down.
Aebi told Harrison that the new OSHES witness would testify the next day and Harrison, if he wanted, could listen to a tape made when the witness first was debriefed. When Harrison listened to the tape, however, he also at the same time recorded it on another machine. The resulting new tape, taken to a court reporter, now emerged as a paper transcript. By the time Harrison and Grant Cox arrived at the hearing the next morning, they were ready.
State's Surprise Witness
Paul Edward Thorn, sworn, took the stand. Under direct examination by Aebi, he testified that the day of the accident, after speaking with the Chris Crane foreman, he had remained on the site for a time, standing around and talking to some people he knew while watching the crane operate.
Thorn said he was standing about 20 feet south of the south wall of the steel structure and about 20 feet from the crane.
But on cross examination, Harrison used photos of the splayed-out, collapsed metal taken early that June 28, 1993 afternoon to suggest that if Thorn had been standing where he said he was, he would have been crushed by the falling steel. The photos also suggest that if Thorn had been standing 20 feet south of the structure wall, he would have been about 150 feet south of the hydraulic cranebecause the photos show the crane on the concrete pad to the north of several lines of still-standing structural steel.
Thorn said the wall did not fall on him because it fell inward onto the concrete pad and toward the north.
Harrison, however, argued that this account contradicted the clear testimony of the photos, which show easily half or more of the long structural members spanned out onto the earth south of the concrete pad.
Thorn said the crane he was watching was a 35-ton Grove, and he had already been a crane operator for 10 years.
Harrison, though, established that the crane actually was a 15-ton Grovesomething any 10-year operator of Grove cranes would know.
Thorn said he went to work for Chris Crane Co. three to four weeks after the accident.
But Harrison presented Chris Crane employment records showing Thorn applied for work there on October 1215 weeks later.
Thorn said he worked for Chris Crane Co. for six months.
Harrison got Thorn to confirm company employment records showing he actually worked there five weeks of a period of nine, and that he was a "no-show" for the rest before being laid off.
Thorn said the boom of the crane"about 60 feet up the crane which would be the midsection of the hydraulic crane"struck the steel that went down.
But on cross-examination, Harrison pointed out that the steel that collapsed was on the far side of a big, erect girder truss that was still standing afterward. If the boom of the crane had hit the part of the structure that collapsed, it would have first had to knock down the girder trusswhich it did not.
Thorn in his direct testimony spoke confidently and specifically about what was where on the State Farm work site.
After cross-examination and on Aebis re-direct, Thorn had to acknowlege not being certain which directions were north or south on the project.
Thorn also admitted on the stand during cross-examination that during the period when he had left Chris Crane and was drawing workmans compensation from Nevadas State Industrial Insurance System (SIIS), he also illegally drew unemployment compensation and eventually was compelled to reimburse the state.
About 10 days before this article went to press, Nevada Journal, seeking to interview Thorn, on a hunch called Iron Workers local 118 and asked for his telephone number. The receptionist explained that while no phone numbers of members of the local could be given out, a number left for Thorn to call would be passed on to him later that day when she called to remind him to pay his dues.
When later interviewed, Thorn insisted he had not been a covert member of Local 118 in September 1995 when he testified on the Chris Crane case. Rather, he said, he had joined afterward, asking Rich Ciesynski in fact at that same hearing.
But Thorns testimony had been a clear disaster. Chairman John Rogers would later say during the boards deliberations, "That was the absolute worst witness I have ever seen in my life." He would also go further, when another board member saw no reason to consider Thorns admitted "double-dipping"receiving unemployment and SIIS at the same time.
Chairman: A liar's a liar
"That isnt even relevant," said member Mary Lou Bissett.
"Well, it is to me," said Rogers. "If a guy is a liar, hes a liar."
But that discussion followed the hearings last witness, Calvin Murphy, the director of OSHES Reno district.
And when he took the stand, Murphyafter months of ever-changing OSHES theories of why the collapse had happened, and after the disaster of the Thorn testimonywas now quite circumspect.
"Did you make a determination of why the building collapsed?" asked Aebi.
"No, we didnt," answered Murphy. "We never made a determination why the building collapsed. We heard a lot of theories why the building collapsed, the two-bolt system, the lack of guy wires, guy wires being used in pulling the structure over, the wind. All those things were considered.
"I felt that we did not have the ability to determine precisely why that building fell down. The only thing that we do know that was a fact was that the building fell down, and that was a fact."
As soon as Aebi was finished questioning Murphy, Harrison struck.
"Mr. Chairman," he said, "I would at this time move to dismiss the citation on the following basis: Mr. Murphy has testified that they made no finding of causation. OSHA [sic] does not know why the collapse occurred."
To not dismiss the citation, argued Harrison, would leave the board "in the precarious position" of contending that any collapse on a site, when an employer has employees present, automatically makes the employer guilty of violating the "recognized hazard" ruleeven when no hazard was recognized or identified by OSHES.
"That is not the law," said Harrison.
Later, after some discussion, a majority of the board agreed, voting to dismiss the complaint.
Chris Crane had successfully defended itself against every theory that OSHES had been able to come up with. It had only cost the company two years of wasted time, energy and exasperation, plus some $80,000 in legal fees.u
Steve Miller is Managing Editor of Nevada Journal.