Tyler Pipe

This will soon be a Frontline story.
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At a Texas Foundry, an Indifference to Life
By DAVID BARSTOW and LOWELL BERGMAN
New York Times

Additional reporting by James Sandler and Robin Stein.

TYLER, Tex. — It is said that only the desperate seek work at Tyler Pipe, a sprawling, rusting pipe foundry out on Route 69, just past the flea market. Behind a high metal fence lies a workplace that is part Dickens and part Darwin, a dim, dirty, hellishly hot place where men are regularly disfigured by amputations and burns, where turnover is so high that convicts are recruited from local prisons, where some workers urinate in their pants because their bosses refuse to let them step away from the manufacturing line for even a few moments.

Rolan Hoskin was from the ranks of the desperate. His life was a tailspin of unemployment, debt and divorce. A master electrician, 48 years old, he had retreated to a low-rent apartment on the outskirts of town and taken an entry-level maintenance job on the graveyard shift at Tyler Pipe.

He would come home covered in fine black soot, utterly drained and dreading the next shift. "I don't know if I'm going to last another week," his twin brother recalls him saying. The job scared him; he didn't know what he was doing. But the pay was decent, almost $10 an hour, and his electricity was close to being cut off. "He was just trying to make it," his daughter said.

On June 29, 2000, in his second month on the job, Mr. Hoskin descended into a deep pit under a huge molding machine and set to work on an aging, balky conveyor belt that carried sand. Federal rules require safety guards on conveyor belts to prevent workers from getting caught and crushed. They also require belts to be shut down when maintenance is done on them.

But this belt was not shut down, federal records show. Nor was it protected by metal safety guards. That very night, Mr. Hoskin had been trained to adjust the belt while it was still running. Less downtime that way, the men said. Now it was about 4 a.m., and Mr. Hoskin was alone in the cramped, dark pit. The din was deafening, the footing treacherous under heavy drifts of black sand.

He was found on his knees. His left arm had been crushed first, the skin torn off. His head had been pulled between belt and rollers. His skull had split. "If he fought that machine I know his last thought was me," said his daughter, April Hoskin-Silva, her dark eyes rimmed with tears.

It was not just a conveyor belt that claimed Mr. Hoskin's life that warm summer night. He also fell victim to a way of doing business that has produced vast profits and, as the plant's owners have admitted in federal court, deliberate indifference to the safety of workers at Tyler Pipe.

Mr. Hoskin worked for McWane Inc., a privately held company based in Birmingham, Ala., that owns Tyler Pipe and is one of the world's largest manufacturers of cast-iron sewer and water pipe. It is also one of the most dangerous employers in America, according to a nine-month examination by The New York Times, the PBS television program "Frontline" and the Canadian Broadcasting Corporation.

Since 1995, at least 4,600 injuries have been recorded in McWane foundries, many hundreds of them serious ones, company documents show. Nine workers, including Mr. Hoskin, have been killed. McWane plants, which employ about 5,000 workers, have been cited for more than 400 federal health and safety violations, far more than their six major competitors combined.

No McWane executive would be interviewed on the record. But in a series of written responses, the company's president, G. Ruffner Page, acknowledged "serious mistakes" and expressed deep regret for Mr. Hoskin's death. "Our intensified focus on safety speaks to lessons learned," he wrote. At the same time, he sought to explain and strongly defend the company's business methods.

"Over the years, McWane has grown by the acquisition of troubled companies that had become uncompetitive," he wrote. "Through substantial investment in new plant and equipment and more disciplined management practices, McWane transformed these underperforming companies into efficient and viable operations." Disciplined management, he said, has allowed McWane to stave off foreign competitors who have no regard for safety.

In the last decade, many American corporations have embraced such a vision of capitalism — cutting costs, laying off workers and pressing those who remain to labor harder, longer and more efficiently. But top federal and state regulators say McWane has taken this idea to the extreme. Describing the company's business, they use the words "lawless" and "rogue."

The company's managers call it "the McWane way."

The story of Tyler Pipe, drawn from company and government documents and interviews with dozens of current and former workers and managers, is a case study in the application of the McWane way. It is the anatomy of a workplace where, federal officials and employees say, nearly everything — safety programs, environmental controls, even the smallest federally mandated precautions that might have kept Rolan Hoskin alive — has been subordinated to production, to the commandment to keep the pipe rolling off the line.

Federal safety inspectors tried to make a difference. They cited and fined and cajoled. But for years, records show, little changed.

"You put people at risk," a former senior plant manager at Tyler Pipe said. "We did every day."

Which is why even now the toughest of Tyler Pipe veterans remember the day McWane came to town as the day they were, as one of them put it, "kicked into hell."

Introducing `the McWane Way'


Tyler, a city of 85,000 an hour and a half's drive east of Dallas, began as a stagecoach town, but it came of age around two precious commodities, East Texas crude and some of the finest roses on earth. Oil and roses still help define Tyler, or at least a certain conjured Tyler. The municipal rose garden alone has 38,000 bushes, and the old oil families still carry clout.

But by the early 90's, the shuttered storefronts down by the county courthouse explained why local leaders were so endlessly worried about the care and nurturing of Tyler's contemporary crown jewels — the Kelly-Springfield tire plant, two air-conditioner factories and Tyler Pipe.

These big manufacturers, they knew, represented something extremely valuable and increasingly rare: places where someone with a high school diploma and a strong back could make $15 an hour, where a Mexican immigrant with little English could firmly grasp the next rung.

The pipe foundry occupies several hundred acres northwest of downtown. Its smokestacks rise high above a north and south plant, each with its own cupola, a multistory furnace that melts tons of scrap metal to produce smoky white rivers of molten iron. The molten iron is poured into spinning cylinders to form pipes, into molds of packed black sand to make fittings.

The company would not let a reporter tour the plant. But employees describe simply stepping inside as an overwhelming experience. First is the heat, wave upon wave of it, sometimes in excess of 130 degrees. Then there is the noise — of pipe slamming into pipe, of pneumatic tools that grind and cut, of massive machines that shudder and shake, of honking forklifts and roaring exhaust systems. Dust and fumes choke the lungs and coat the lights, leaving the plant floor a spectral labyrinth of glowing pipes and blackened machinery.

In the early 90's, Tyler Pipe employed about 2,800 people and did about $200 million in business a year. It was modestly profitable, and the owners, the Tyler Corporation, were conventionally paternalistic. They distributed turkeys at Christmas and door prizes at the annual employee barbecue. Regulators said the plant, while far from perfect, made an effort to comply with safety and environmental rules.

In late 1995, the Tyler Corporation sold the foundry to McWane. In one stroke, McWane had bought one of its main rivals and acquired its largest plant.

Within weeks, senior executives flew in from Birmingham and set about executing a plan of stunning audacity: Over the next two years, they cut nearly two-thirds of the employees, yet insisted that production continue apace. They eliminated quality control inspectors and safety inspectors, pollution control personnel and relief workers, cleaning crews and maintenance workers.

"It got pretty bad," recalled Kevin Fowler, the human resources manager from 1996 to 1999. "If I walked into a department people would wonder if I was coming with their termination."

Alarmed by the layoffs, city leaders sought meetings with McWane executives. Their requests were rebuffed. "They just disassociated themselves from the city," Thomas G. Mullins, the chamber of commerce president, recalled.

To keep up production, McWane eliminated one of three shifts; instead of three shifts of eight hours, there were two 12-hour shifts. At the end of a shift, supervisors often marched through yelling, "Four more hours!" So employees worked 16-hour days, sometimes seven days a week.

Men who operated one machine were ordered to operate three. Breaks were allowed only if a relief worker was available, but McWane had reduced the number of relief workers and forbade supervisors to fill in for hourly workers. The policy hit hardest near iron-pouring stations, where workers had to drink plenty of fluids to withstand the heat. The humiliating result, six workers said in separate interviews, was that men were sometimes forced to urinate in their pants or risk heat exhaustion.

Even the most basic amenities did not survive. The barbecues and 401(k) plan were easy enough targets. But items like soap, medicated skin cream and hand towels were eliminated from the plant stockroom as unnecessary "luxuries," company records show. If they were available at all, they had to be specially ordered with approval from top managers.

Several workers said they were told by their bosses to bring their own toilet tissue. Near the cupola, managers rationed crushed ice for the workers' drinks, company records show. Out by the loading docks, they eliminated portable heaters used by forklift drivers to warm up in winter. "We do not provide comfort heat for individual employees," Dick Stoker, the works manager, explained in a memorandum.

Restrictions were placed on safety equipment. Protective aprons, safety boots and face shields were no longer stocked and readily available. Heavy, heat-resistant $17 gloves were replaced by $2 cloth ones. As a result, workers wrapped their hands in duct tape to protect from burns.

The union was helpless to resist, past and current leaders agree. Organized labor had never been a potent force at Tyler Pipe, and the layoffs devastated the union's membership. The contract barred strikes, permitted 16-hour days and let breaks be canceled.

"My hands was tied," said Bobby Hopson, former president of Local 1157 of the United Steelworkers of America.

Morale plummeted, but profits soared. Senior managers say they were told that Tyler Pipe earned more than $50 million in 1996 — double the reported profits for the five-year period before McWane arrived.

Four years after the takeover, inspectors from the federal Occupational Safety and Health Administration spent several days taking the measure of the new regime. They found more than 150 safety hazards. They found poorly maintained equipment. They found a work force that was poorly trained, ill equipped, overworked.

"Throughout the plant, molten metal is seen spilling from the cupolas, bulls and ladles," their report said. "The forklift trucks transport the metal, and the ground behind the trucks often smokes with puddles of molten metal. Workers are covered with black residue from the foundry sand. Many work areas are dark, due to poor lighting and clouds of sand. Despite all the ignition and fuel sources, exit paths are not obvious. Many workers have scars or disfigurations which are noticeable from several feet away. Burns and amputations are frequent.

"This facility is located in a relatively small town where jobs are not plentiful. Throughout the plant, in supervisors' offices and on bulletin boards, next to production charts and union memos, is posted in big orange letters: REDUCE MAN HOURS PER TON."

Talking Safety, Walking Danger


Any foundry is filled with dangers seen and unseen. For three of the last four years, the cast-iron foundry industry has recorded the nation's highest injury rates. But the inspectors said they were drawn to Tyler Pipe because its rate was so much higher than the industry average, records show. Even with far fewer workers at Tyler in 1996 than in 1995, more workdays were lost because of injuries, records show.

On paper, the company emphasized safety. "You are expected to work efficiently and as quickly as possible without compromising safety rules or safe practices in any way," the employee handbook states.

But inspectors and workers alike called the safety program a charade. "In essence, they are doing it in `form' but not with substance," the inspectors wrote.

The company prepared extensive written safety rules. But even the most senior supervisors let employees work in clear violation of those rules, the inspectors found. And while the company promised twice-a-week safety inspections, the same hazards showed up week after week.

Ultimately, the inspectors wrote, it came down to incentives: "They have never developed a mechanism to hold supervisors accountable for safety while, on the other hand, they have mastered a system for holding supervisors accountable for production downtime."

Shutting down machines, taking special precautions before entering dangerous pits, putting safety guards on, taking them off — all these safety measures "lengthened the `downtime' taking away from production activities," OSHA inspectors wrote.

It was Elena Glasscock's job to make sure supervisors gave their workers proper safety training. But many supervisors were simply overwhelmed by production demands, she said. What little training they did offer was lost on Tyler Pipe's many Hispanic workers who spoke little English.

"I would ask the supervisor, if this person could not speak English, how did he know what the work instruction said?" she recalled. Last summer, after 28 years at Tyler Pipe, she resigned in disgust.

Experienced workers left in droves. Many were fired under a new "no fault" attendance policy that assessed points for each sick day and half points for arriving late or leaving early. Ten points resulted in dismissal. Others quit because of sudden demotions and pay cuts. Mr. Fowler, the personnel director, said he quit because he tired of being seen as a "monster."

New employees are called "pumpkin heads" because of the orange hard hats they must wear, and each week waves of pumpkin heads arrived. But it was not until pumpkin heads started showing up with electronic monitoring bracelets that people realized the company was recruiting at Texas prisons. Many of the newly released prisoners did not last. They worked up to 16 hours a day, sometimes for 14 days straight, then were fired or quit before they qualified for benefits or union protection.

According to interviews and company documents, turnover at times approached 100 percent. Many rookie employees got hurt and left. It was a vicious cycle: injuries fueled turnover; turnover fueled injuries.

The plant was filled with workers who barely knew their way around, let alone grasped the dangers they faced. In April 1996, a crew of outside contract workers was sent up onto the roof to clean gutters. One worker, Juan Jimenez, stepped through a skylight and plunged 55 feet to his death. Mr. Page said that Tyler Pipe's safety director had pointed out the skylight to Mr. Jimenez, but OSHA inspectors said the death "could have been avoided" if the skylight had safety rails as required under OSHA rules.

In interviews, dozens of workers said the unrelenting pressure to make production quotas resulted in dangerous shortcuts. Bobby Hopson's younger brother, Jerry, a 54-year-old father of two, took a shortcut in May 1996. His maintenance crew had finished work on a production line and, hurrying to get out of the way, cut through a molding machine. The line started up, and Jerry Hopson was crushed by a hydraulic piston. A year later, after more than 20 operations, he died.

"He was just a swell feller," his brother, the former union president, said, brushing back tears. In the local paper, a plant executive had called Jerry Hopson "a good man who made a very big mistake." But Bobby Hopson insisted that senior supervisors were well aware of the shortcut and its hazards, yet made no effort to stop its use.

"If you lose a minute, you've already lost, you know, maybe a fitting or two," he said.

 

part II
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Losing Limbs but Not Pipes


On Jan. 22, 1997, another maintenance worker, Ira Cofer, descended alone into a machine pit. "Downsizing had ended the earlier practice of entering the pits with a buddy," OSHA investigators later wrote. When Mr. Cofer's sleeve snagged in an unguarded conveyor belt, he struggled desperately to free himself. It was nearly three hours before his screams were heard.

"Eyewitnesses said that the friction of the belt had sanded his arm away, so that even his elbow joint was worn smooth and flat," investigators wrote.

Mr. Cofer's arm had to be amputated.

"I was mad for a while, then I was praying," he said of the ordeal. "There was nothing there but the Lord."

In their accident report, plant managers put the blame squarely on Mr. Cofer: "Keep hand away from belt and do not work alone," they wrote.

Within months, four more maintenance workers suffered amputation injuries at Tyler Pipe. In 1999, OSHA cited the plant for 31 instances of inadequate guarding on machines. By 2000, according to OSHA, 60 percent of the north plant's 70 maintenance workers had been hurt.

Senior managers knew all this, OSHA records show. They knew that guards were frequently left off for weeks at a time. They knew that maintenance mechanics were working on running conveyor belts, entering treacherous machine pits alone.

And so in June 2000, Rolan Hoskin, afraid of the job but too desperate for work to quit, took his turn in the pit.

His death prompted Mr. Stoker, the works manager, to issue a memorandum. "WE WILL NOT PUT PRODUCTION AHEAD OF SAFETY," he wrote. "If that means that we lose a couple of pieces of pipe or fittings to do the job in a safe manner, so be it. Then we need to figure out how to recover the lost production safely."

But in a memorandum dated Aug. 2, an engineering manager raised serious concerns about safety. He called for a potentially costly program to build new safety guards. "We are not in compliance on most if not all our belt conveyors," he warned.

In response, he received a dismissive letter from the human resources manager.

Burn the Tires, Scrub the Toilet


McWane's senior executives, including C. Phillip McWane, the chairman and chief executive, received regular reports from all their plants. The reports measured seemingly everything — injuries, lost work hours, dismissals, operating margins. By 2000, it was clear that Tyler Pipe had become an exceedingly profitable enterprise.

It was also clear that something was very wrong. Red flags were everywhere.

There had been three deaths since the takeover. The injury rate was climbing, the company's own reports showed. "Safety is without a doubt one of our worst areas," Mr. Stoker wrote in a confidential memorandum to top supervisors. "I have failed in this area, but I can promise you that we will not fail to improve in this area come 2001."

Meanwhile, the plant had been deemed an "E.P.A. High Priority Violator," and company lawyers were recommending steps to forestall a criminal inquiry of its environmental record, company records show.

After the takeover, Tyler Pipe's environmental department was virtually wiped out, several current and former employees said. One former senior manager said that when he arrived in 2000, he found an environmental program "in the Dark Ages."

"It was not humanly possible for one person to handle all of the environmental issues at a plant of that size," he recalled.

In March of that year, state environmental investigators spent several days at Tyler Pipe. They found that the plant had failed to keep inspections records, to get required permits and to maintain pollution controls and wastewater treatment lagoons. The list ran on and on.

Now, with federal regulators lurking, Mr. Stoker told his staff, "We are so far out of compliance at Tyler Pipe that I cannot begin to cover our needs in this letter."

Even so, in a January 2001 memorandum, senior McWane executives outlined an environmental upgrade at Tyler Pipe and several other plants that was relatively low cost — outside audits, better training, improved manuals, an annual company environmental conference.

Before long, the company's stated desire for "environmental excellence" was tested in a small way. The question was what to do with a pile of 200 old tires. It would have cost about $750 to have them hauled away to a hazardous waste dump. But company documents show that Mr. Stoker had another solution, even though he had been told that it violated state air-quality laws.

"He wanted the tires burned and he wanted them burned now," an internal company document stated. And so they were, in the cupola. Buckets of contaminated grease disappeared the same way, workers said.

The biggest worries, though, had to do with safety. Texas workers' compensation laws give McWane broad immunity from negligence lawsuits. But they also required it to pay medical bills and lost wages for injured workers. Company executives complained that they were "hemorrhaging" money on workers' compensation — many millions of dollars a year and rising.

Once again, the company chose a minimalist approach, according to company and OSHA records and former safety and health employees. It devised a system of "workers' compensation cost control techniques" that shifted responsibility for safety problems onto the workers themselves.

It was a system that assumed widespread fraud and often subjected workers reporting injuries to disciplinary action, and sometimes firing, for violating safety rules.

"Whether the employee is 100 percent or 5 percent at fault is irrelevant," wrote Stephen A. Smith, then president of the McWane subsidiary that owns Tyler Pipe.

In 2000 and 2001, company records show, more than 350 workers were subjected to disciplinary actions — known as D.A.'s — after reporting injuries. "All disciplines short of termination is administered with the intent and purpose to teach," the plant's employee handbook explained.

But OSHA inspectors concluded that the system was used not to teach but to punish. Disciplinary action was meted out if it was the fault of the employee or not, they said.

"The true significance of a D.A. is that they move an employee along a track for termination," the inspectors wrote. Even longtime employees with exemplary work records could be fired for a single D.A. Employees say they learned to keep injuries a secret whenever possible.

In his response, the McWane president, Mr. Page, said no Tyler Pipe worker had been fired in retaliation for reporting an injury. He said managers were encouraged to enforce safety rules "so that there would be no doubt about management's commitment to the safety program." He added, "No judge or jury has ever concluded that Tyler Pipe acted improperly."

As many companies do, McWane insists that injured workers return to work as soon as possible on "modified duty." Mr. Page described modified duty as a beneficial program that speeded recovery. At Tyler Pipe, though, records and interviews show that modified duty often meant humiliating and punitive jobs like cleaning toilets.

John T. Combs was the senior manager who oversaw modified duty. In an internal company e-mail message, he extolled the benefits of assigning injured workers to toilet duty and described how he assigned "an aggressive, physically imposing supervisor" to oversee them. "This accomplished one of two things," he wrote. "1) the employees would return to work because cleaning toilets is not fun and it paid less than their regular job or 2) they would quit."

Mr. Combs did not respond to telephone messages.

Around town, Tyler Pipe was approaching pariah status. "You know what the saying in the community is?" a county commissioner asked at a commission meeting in 2001. "That if you can't work anywhere else, go to work at Tyler Pipe." With a work force that had crept up to about 1,200, company records showed there were more than 900 new hires in 2001.

That December, a group of employees composed an unsigned letter to Mr. Page. It began: "On behalf of the employees of Tyler Pipe Company . . . Please Help!"

`We Do Not Send Flowers'


Michelle Sankowsky, a nurse, was hired in January 2002 as Tyler Pipe's occupational health and compensation manager. It was a new position, overseeing all workers' compensation cases. She met daily with Boyd T. Collier III, the human resources manager, and other senior executives. She quit after four months, she said, because she concluded that the company routinely targeted injured workers for dismissal.

"You've got to understand," she said. "The mentality is that if it weren't for people looking for a free ride, looking for the paid vacations, if it wasn't for the malingerers, if it wasn't for the fakers, if it wasn't for people being careless and reckless, then they wouldn't have the numbers."

Ms. Sankowsky said she suggested a variety of low-cost ideas to reduce rampant ergonomic complaints. She proposed conducting warm-up exercises and wrapping brush handles in foam. "Not cost effective," she says she was told.

In Texas, injured workers have the right to choose their own doctors. At Tyler Pipe, this right came with an important qualification. "We require every employee injured at work to see the company-approved physician if a doctor is necessary," the employee handbook says. "NO EXCEPTIONS!" The labor contract said the same. In a memorandum to all workers, Mr. Collier said he wanted injured workers to see the company doctor first to "ensure the very best care in Smith County for our employees."

Ms. Sankowsky sees it differently. "It all boiled down to that they wanted to be in control," she said. Controlling the care, she said, was viewed as the key to saving money and reducing injury numbers reported to OSHA. And the key to controlling the care, she said, was Occu-Safe, a tiny medical company hired in 1999 to run the plant dispensary and care for injured workers at its downtown clinic.

Occu-Safe was an unlikely choice for the job. Established only months before, it had no track record and few other clients. It was owned by Mike Adams, whose prior business experience, court records show, included a bankrupt air-conditioning venture. In an interview, Mr. Adams said he won the contract by promising deep reductions in workers' compensation claims.

Mr. Adams also shared Tyler Pipe's skepticism about injury claims; he says he believes that up to 50 percent are fraudulent, and that "overutilization" of doctors is a "huge problem." At his clinic, he said, doctors are under strict orders to avoid "hope so, think so, want so medicine."

Tyler Pipe was by far Mr. Adams's largest client, paying him $615,000 in 2001, records show, and Mr. Adams began most days discussing injury cases with Mr. Collier, the human resources manager. Occu-Safe, Ms. Sankowsky said, was simply too small to assert unbiased medical judgment.

"One of the benefits of having Occu-Safe as your medical provider is that people were not taken off work," she said.

Mr. Adams denies that Mr. Collier has tried to influence medical decisions. "The day he does, I'll walk away," he said.

Still, records suggest that Occu-Safe was responsive to Mr. Collier. When a supervisor punctured his arm late one Friday night, emergency room doctors put him on Vicodin, a strong painkiller, and told him to stay off work a week. But according to internal e-mail, Mr. Collier wanted him back right away; Occu-Safe representatives ordered him to switch to a less potent drug and report to work on Tuesday.

Workers who insisted on seeing their own doctors were assumed to be malingerers. It was called "jumping ship," and employees who did it, Ms. Sankowsky said, were targeted for disciplinary action and termination.

Mr. Collier's hostility toward outside doctors was apparent in an e-mail message on Feb. 19, 2002, to Ms. Sankowsky, who had asked about sending flowers to an employee who had had surgery for a workplace injury.

"Michelle: Typically we do not send flowers to hourly ee's," he wrote. "And the only time we send flowers to salaried ee's is death in the immediate family; I'd entertain a proposal to fund flowers for cases like Brian but we need to scope it very narrow so it didn't apply for cases that were referred by CARPENTER and his band of outlaws."

Mr. Collier was referring to Dr. Robert Carpenter, a chiropractor with union ties who has treated approximately 60 injured Tyler Pipe workers over the last two years. About 40 of them have since been fired, said Dr. Carpenter, who has filed a defamation suit against Mr. Collier. He said he no longer gets new patients who work at Tyler Pipe.

"If I was an injured worker, then I would think that perhaps I might get fired if I went to see Dr. Carpenter," he said.

A Broken Back and a Bass Boat


Marcos Lopez crossed the Mexican border and found work at Tyler Pipe at the age of 17. He was used to tough work, and he saw plenty of men get hurt. But nothing on earth, he said, prepared him for McWane.

"You reach this point that you just don't care about you," said Mr. Lopez, who is now 45. "And you set your mind on work. And that's what they want. And that's how people get hurt."

On March 2, 2002, it happened to him. He was working on some machinery, stretching awkwardly in a tight space, when he slipped and fell. His back slammed into metal. He heard a snap, he said, and felt dizzying waves of pain and nausea. In the dispensary, records show, he was pale and weeping and showing signs of shock. He said his pain — a "burning in the bone" — was so intense that it was a challenge just to breathe.

Had he been sent to a hospital, had an X-ray been done, it would have been clear that Mr. Lopez had suffered a terrible injury, a severe compression fracture in his spine.

But he was not sent to a hospital. "They just tell me to sit down and wait for the safety man," he recalled. Ms. Sankowsky, in the dispensary that day, recalls that senior safety managers were deeply suspicious of Mr. Lopez. He had a prior back injury, in 2000. Worse still, he had "jumped ship" and been kept off work for months.

Then, in questioning Mr. Lopez, the managers discovered that he had recently bought a bass boat. They found this highly significant, Ms. Sankowsky recalls. Might he be faking injury to get his boat paid off with disability insurance? When she argued that shock was difficult to fake, Ms. Sankowsky said, the safety manager brushed her aside: "Michelle, don't you think that you could sweat and cry a little bit if you thought you were going to get a free boat and paid vacation?"

Mr. Lopez was sent by van to the Occu-Safe clinic where, after a brief examination, he was given pain medicine and sent home, records show. The clinic doctor diagnosed a back strain and told the plant to expect Mr. Lopez back in three days. In fact, he was getting worse. He felt a creeping numbness in his legs and hands.

At Tyler Pipe, Ms. Sankowsky said, Mr. Collier and the safety managers were "really circling their wagons around Mr. Lopez, that he's a fraud, he's a fake, and, you know, we're going to get him before he gets us." At a meeting on March 13, the managers approved a plan to place Mr. Lopez under surveillance, corporate records show.

The next day, on his third visit to Occu-Safe, Mr. Lopez asked for an X-ray. It showed a "bad compression fracture," medical records state. Still, he was sent home. Nobody informed him of the new findings, he said, and according to Ms. Sankowsky, this was deliberate.

"Why do you not tell this gentleman that he's got a compression fracture of the spine?" she said she asked an Occu-Safe manager. "And he said to me, `Well, then he'd know how hurt he was.' "

The clinic, she said, quietly began to explore the possibility that Mr. Lopez had cancer that had weakened his spine. Mr. Collier, she said, welcomed the news. "So we can deny the claim because it's cancer?" she recalls him asking.

Mr. Collier declined to comment.

Finally, more than three weeks after his fall, Mr. Lopez was sent to a surgeon. "He said, `You're one hair to be paralyzed for the rest of your life,' " Mr. Lopez recalled. The doctor told him something else: his fracture had gotten worse since the accident.

It is when he says this that Mr. Lopez, a proud and reserved man, begins to weep. For months after the surgery, he said, he could not dress himself, or pick up the soap in the shower. "I feel destroyed," he said.

Mr. Adams would not discuss the case in detail; Mr. Lopez has sued Occu-Safe for malpractice. But Mr. Adams insisted that "Marcos got the care that he needed."

McWane kept Mr. Lopez under surveillance this year, determined to prove him a malingerer. In his response, Mr. Page said Mr. Lopez had been filmed "lifting heavy loads into his car" — proof, he said, that Mr. Lopez has not suffered any serious disability. A doctor for the Texas Workers Compensation Commission, however, recently determined that despite surgery and months of rehabilitation, Mr. Lopez has a permanent partial disability.

Epilogue


Last year, Tyler Pipe came under intense scrutiny from federal investigators.

In the summer, the company pleaded guilty in federal court to deliberately ignoring safety rules that could have saved Mr. Hoskin's life. In the fall, McWane reached a settlement with OSHA, admitting that it had willfully violated safety rules a dozen times.

Tyler Pipe began publishing a safety newsletter, As the Pipe Turns. The newsletter said many new safety guards had been installed and hundreds of potential hazards eliminated. Under a new incentive program, workers get gifts if they do not "have an OSHA recordable accident that results in discipline." One recent gift, a lunch cooler, was branded with this slogan: "Safety Without Compromise."

But Tyler Pipe remains a dangerous place to work, company records show. A recently completed internal safety audit found 1,219 hazards.

 

Here's the picture version:



Ira Cofer was a mechanic at Tyler Pipe in January 1997 when he went down a machine pit alone and his sleeve snagged on an unshielded conveyor belt. His screams went unheard for hours as the machine mangled his arm beyond saving.



Marcos Lopez, an employee at Tyler Pipe, slipped on the job; bone met metal and he broke his back, an X-ray taken 12 days later showed. His employer suspected fakery.

 

Another photo I left out in a previous post:



Rolan Hoskin was caught and killed in an aging conveyor belt he was repairing on the graveyard shift in June 2000, at the McWane foundry in Tyler, Tex. The belt was not shut down for the work, nor did it have the required safety shield.

 

Here's the link:

http://www.nytimes.com/2003/01/08/national/08PIPE.html

 

Here's the official Part II of the story:

Link:

___________________________________
Family's Profits, Wrung From Blood and Sweat
By DAVID BARSTOW and LOWELL BERGMAN


Additional reporting by James Sandler and Robin Stein.

IRMINGHAM, Ala. — In their hometown, the McWanes are known for quiet generosity. The family pledged $10 million to the science museum, the McWane Center. They have given millions more to Alabama's major cultural institutions, including the Birmingham Civil Rights Institute. College students compete for McWane scholarships.

The family's latest philanthropic project is this city's icon, a 56-foot statue of Vulcan, the god of fire and forge. Thanks to a $2 million leadership grant from the McWanes, the statue will soon be restored and returned to its pedestal atop Red Mountain, overlooking downtown as a symbol of the city's working men and women.

Yet if the good works are appreciated by Birmingham's civic leaders, the business empire that supports this philanthropy is barely known. The family is so private that not a single sign advertises the McWane corporate headquarters. In a 1997 profile of James Ransom McWane, then chairman of McWane Inc., The Birmingham News wrote that "even well-connected" business leaders had never met the man it described as "a riddle in his hometown."

"Son," said N. Lee Cooper, past president of the American Bar Association and founding partner of the Birmingham law firm that has long represented the family's corporate interests, "the McWanes haven't talked in a hundred years, and they aren't about to start now."

The untold story of how a reclusive family ascended into the ranks of the nation's wealthiest industrial dynasties is an often-painful one, written in the blood and tears of the very blue-collar workers celebrated by the Vulcan statue.

As reported yesterday in The New York Times, McWane Inc., one of the world's largest makers of cast-iron water and sewer pipes, is also one of the most dangerous businesses in America. The company has by far the worst safety record in an industry that, for three of the last four years, has had the highest injury rate in the nation. McWane has been cited for more than 400 safety violations since 1995, four times more than its six major competitors combined.

A nine-month examination by The Times, the PBS program "Frontline" and the Canadian Broadcasting Corporation program "The Fifth Estate" also found that McWane has an extensive record of environmental violations. McWane plants have been found in violation of pollution rules and emission limits at least 450 times since 1995, records show. Environmental regulators have said McWane plants are among the worst polluters in New Jersey, Alabama and Texas.

The examination is based on thousands of company and government records and hundreds of interviews with current and former McWane employees, including plant managers, safety directors and environmental engineers. These employees — some speaking on the record, others on condition of anonymity — opened a window into a closely held and expanding corporation that dominates an unglamorous yet essential industry.

At McWane plants, they said, workers who protest dangerous work conditions are often "bull's-eyed" — marked for termination. Supervisors routinely run roughshod over safety and environmental laws that interfere with production in the slightest. They dump polluted water under cover of night. They bully injured workers. They intimidate union leaders.

And everyone, they said, operates under a system of financial and disciplinary incentives that results in lives being put at risk every day.

"The people, they're nothing," said Robert S. Rester, a former McWane plant manager who spoke at length about his 24 years with the company. "They're just numbers. You move them in and out. I mean, if they don't do the job, you fire them. If they get hurt, complain about safety, you put a bull's-eye on them."

C. Phillip McWane, the current chairman and chief executive, declined repeated requests for interviews over the last five months. But the company president, G. Ruffner Page, said in written exchanges that McWane was committed to protecting the environment and the welfare of its workers. While acknowledging that "our standards have not always been met," he emphasized that the company has taken action to improve its record.

Many McWane employees said there had indeed been improvements, particularly in recent months as the company came under new federal scrutiny. Some plants, they added, are better than others. But they strongly disagree that the changes show a fundamental turnabout by a chagrined corporation. To many of them, McWane remains frozen in a long-ago time, a time when industrial barons made great fortunes off molten iron but left behind broken lives and a damaged environment.

The Deep Roots of Iron


Birmingham was built around its foundries, and for all its racial and social upheavals, for all its ambitious embrace of the new economy, this is still a place with an abiding attachment to iron and steel.

Three major pipe foundries, including McWane, are still based in the city. On the edge of town, the rusting remains of the old Sloss Furnaces have been converted into a national landmark and museum. For more than 80 years, the McWanes have been woven into this legacy. The original family patriarch, J. R. McWane, helped finance and direct the casting of the Vulcan statue.

"McWane was an old-fashioned Andrew Carnegie-like figure," said Henry McKiven, a historian at the University of Southern Alabama, referring to another reclusive Scotsman who combined generous philanthropy with ruthless foundry management.

Like Carnegie, J. R. McWane believed in strict conformance with a rigid manufacturing process. If that process called for 80 pipes an hour, he expected 80 pipes an hour, and not one pipe less.

Through four generations, that demand has been the guiding principle of the family business. And it has proven enormously profitable, fueling the company's growth beyond its original foundry, the McWane Cast Iron Pipe Company, just northeast of downtown Birmingham. Today, it has plants in 10 states and Canada.

As it expanded, McWane typically sought distressed foundries, often in fading manufacturing towns, then imposed cost cuts, layoffs and what Mr. Page referred to as "disciplined management practices." Not one of those new plants was given the McWane name, a tradition that has helped keep the family and its business practices out of the public eye.

Yet McWane products are threaded deep into the infrastructure of American life. McWane pipes can be found in Las Vegas casinos, Indiana hospitals and at Ford Field, the new stadium of the Detroit Lions.

The company's growth has been guided by some of the most prominent figures in Alabama's business establishment.

John J. McMahon Jr., now chairman of the executive committee and company president from 1980 to 1998, is president pro tempore of the trustees of the University of Alabama. Another member of the McWane board, Fournier Gale III, was special counsel to Alabama's former governor, Donald Siegelman, and general counsel to the Business Council of Alabama, the state's most powerful business lobby.

Today, McWane Inc. regularly makes Fortune magazine's list of the 500 largest private companies. According to one knowledgeable person, the company's annual revenues approach $2 billion, an estimate that does not include the family's banking and real estate interests.

In defending McWane, Mr. Page said the company had worked to preserve manufacturing jobs in an industry threatened by what he characterized as unfair competition. Foreign manufacturers in China and Latin America, he said, "have little or no regard for the safety of their workers or concern about polluting the environment."

McWane itself, however, has been the subject of repeated investigations into bid rigging and other forms of anticompetitive behavior, government records show. In 1995 a McWane subsidiary pleaded guilty to conspiring to corner a major part of the Canadian pipe market and paid a then-record fine of $2.5 million (Canadian).

Canadian court documents, recently unsealed at the request of the The Times and the Canadian Broadcasting Corporation, allege that Mr. McMahon, then president of McWane, orchestrated the conspiracy in a series of clandestine meetings in Birmingham. In the meetings, held at a barbecue joint and in a supermarket parking lot, Mr. McMahon pressed executives from another Birmingham foundry, U.S. Pipe, to pull out of the Canadian market or face a price war, documents show.

Mr. McMahon declined to discuss the case, but said the court records "only tell one side of the story."

The company has pleaded guilty to two other crimes, a state environmental felony in 1997 in New York and a federal misdemeanor in 2002 for violating safety laws in Texas.

But in Birmingham, few people know of this record. If the McWanes are known at all, it is chiefly for their philanthropy and their intense privacy. "They don't like the limelight, and they don't particularly want credit for what they've done," Tony Zodrow, president and chief executive of the McWane Center, said.

Not long ago, Birmingham's civic elite turned out for a reception celebrating the restoration of the Vulcan statue. Some guests could not identify a photograph of C. Phillip McWane, but that did not dampen their praise of the McWanes.

"They have done wonderful things for the city," one guest, Mrs. C. H. H. Emory, said. "They are a family which has returned a thousand fold everything they've ever gained."

The Discipline of Production


Everything about Robert Rester — his neck, his chest, his forearms — is linebacker thick. He is 6 foot 1 and 246 pounds. His face is red and beefy, with a goatee the color of rust. His eyes are blue and direct. On his left shoulder is a tattoo of a bald eagle against an American flag and the words, "Don't [expletive] with this."

Mr. Rester was part of the small fraternity of hard-nosed men who run McWane foundries. He was plant manager at two of them, most recently the flagship foundry in Birmingham.

Mr. Rester, who is 44, grew up expecting life to be one long slog, and he took quiet satisfaction from being able to do a hard job in a hard place. `'I was raised in McWane pipe shops," he said. When his first mentor died in an explosion, he didn't flinch. Over 24 years, he kept climbing through the ranks, McWane style, starting as a welder, working 16-hour days, skipping vacations, shrugging off injury and illness, making up to $125,000 a year by being the toughest, meanest McWane manager he could be.

Gradually, he said, he became numb to the constant body count — crushed hands and feet, disfiguring lacerations, burns from molten iron, amputations. His sole focus, he said, was finding a fresh body to keep production rolling. Who got hurt? Why did the injury happen? Could it have been prevented? Those questions hardly crossed his mind. "I was like a robot," he said. What mattered — all that mattered — was getting the machines moving again, he said.

Mr. Rester and other managers linked this mindset to an updated version of the patriarch's dictum: time equals pipe, and pipe equals money.

For a McWane manager, they said, taking time for a safety or environmental problem holds few attractions. It means slowing production to fix equipment. It means more safety training, less time to make pipe. Indeed, police records show that at one McWane plant in Alabama, supervisors refused to wait a few hours for federal safety inspectors to arrive before restarting a conveyor belt that had crushed a man to death.

The formula is reinforced at every level of production. Line workers who fail to make daily quotas get "D.A.'s" — disciplinary actions. Those with several D.A.'s are said to be on "death row." For plant managers like Mr. Rester — essentially the chief operating officer — annual bonuses depend on how their production compares with production at other McWane plants. And for general managers, the pursuit of more tons per hour can mean hundreds of thousands of dollars in profit sharing.

Mr. Rester was one of dozens of McWane supervisors who described a system of unstinting discipline used not just to squeeze out productivity gains, but to suppress union unrest and discourage injury claims.

Supervisors were urged to discipline injured workers, company documents and interviews show. The company says the purpose is to teach safety. But Mr. Rester said the true intent was to punish workers for reporting injuries while shifting blame from the company.

"If he steps in a hole, you know, it's because he wasn't watching where he was going, not because there was a hole there that should've had a cover on it," Mr. Rester said.

Internal McWane records show that top executives tracked the number of injured workers who received disciplinary actions at each plant. Workers who resisted, who cited government regulations or sought independent medical advice, became targets for termination, Mr. Rester said. "We'd say or do whatever we had to," he said. This included putting up safety signs after the fact to make it appear as if the worker had ignored posted policies, he said. It included altering safety records and doctoring machinery to cover up a hazard.

"After a while," he said, "you realize what you have to do to save your job." It became automatic, he said, like a reflex.

The Custodians of Safety


Union Foundry, one of two McWane plants in Anniston, Ala., was a dangerous place to work. In 1995, it had about 350 employees and recorded more than 250 injuries, internal company records show.

That year, McWane sent in a new safety director, Clyde E. Dorn. He was hardly an ideal candidate for the job. He had never worked in a foundry, let alone as a safety director. He had just obtained a bachelor of science degree in occupational safety and health. By his own admission, he was a 44-year-old alcoholic with an arrest record and substantial debts from unpaid child support. He held the job until 2001, when he was fired after being caught trying to buy Oxycontin in a police sting operation; he recently began a prison sentence.

Even apart from his lack of experience, Mr. Dorn said, it was virtually impossible to be effective. He had no budget, no assistants and little authority. He lacked even the authority to shut down a production line if he spotted a safety hazard, he said.

There was one exception, he said: "If someone was caught in the machine."

Mr. Dorn said he managed to make simple and inexpensive safety fixes, as long as they did not affect production. But requests for more safety equipment and an assistant were ignored, he said. Larger safety issues — like too few workers working too many hours — were off limits, he said.

Federal safety rules, for example, limit the weight workers may lift. At Union Foundry, workers were routinely ordered to lift fittings that exceeded these limits, Mr. Dorn said, and many suffered strains and back injuries as a result.

"There was nothing that I could do. I mean management knew about it. You'd go to them and you'd talk to them and they would say, `We'll look at it.' " Asked why he didn't demand action, he replied, "They made it perfectly clear that I wasn't guaranteed a job if I ticked them off."

Indeed, when the federal Occupational Safety and Health Administration investigated a worker's death at Union Foundry in 2000, inspectors were told that company policy "was not to correct anything until OSHA found it," agency records state.

In interviews, other current and former safety directors complained of having little authority or help. And internal company documents show that McWane executives recognized that safety directors were overburdened. But in recent months, some safety directors said executives had given them more influence.

Mr. Dorn was one of 38 full-time "safety and environmental professionals" whom McWane says it employs in its plants. Some of them came with significant credentials. But several, like Mr. Dorn, possessed few qualifications and seemed to have only a vague understanding of their duties.

At the plant in Elmira, N.Y., an accountant whose job was being cut was made safety director. The McWane plant in Birmingham hired a safety director from a temporary employment service that specialized in environmental testing. A few years before, he had been placed on probation for drunken driving. Asked in a sworn deposition to describe his duties, he replied, "There is nothing written as to what my duties are."

In another deposition, a safety manager at the Tyler plant was asked: "So, you're the safety director, but you don't know if the superintendents are supposed to report safety violations to you. Is that correct?"

"Yes," he replied.

Most McWane safety directors spend only part of their time dealing with safety. The rest is devoted to activities designed to reduce workers compensation costs. Managers have told OSHA investigators that McWane expects them "to do whatever it takes to bring and keep these costs down."

This included conducting time-consuming investigations to catch fraudulent injury claims — which is what Mr. Dorn asserts he was doing when he was arrested for trying to buy Oxycontin from an employee out on workers compensation. It also included placing injured workers under surveillance and challenging doctors on expensive treatment plans. Mr. Dorn, a man with no medical background, said he was under constant pressure to manipulate treatment decisions.

Although McWane's internal safety rankings gave Union Foundry high marks under Mr. Dorn, two Union Foundry workers were killed and hundreds were injured during his tenure, and OSHA repeatedly found perilously unsafe working conditions.

A year after he was hired, for example, OSHA inspectors spent six days at the plant and chronicled a list of serious safety violations: exposed wiring, leaking gas lines, inadequate respirators, nonexistent safety training, missing records, explosion hazards, burn hazards, unguarded conveyor belts, and employees exposed to lead, cadmium, arsenic and beryllium without any protective equipment.

During the inspection, records show, Mr. Dorn was asked if employees ever worked underneath or near a certain industrial elevator. He assured the inspector that no one did, OSHA records state. Seven months later, a worker, Johnny Flint Brewster, Jr. was crushed to death under the same elevator. He had been cleaning sand from the shaft and did not see it descend. OSHA inspectors said the shaft was inadequately guarded, records show.

In his written response, Mr. Page did not address Mr. Dorn's work at Union Foundry. But he noted that Mr. Dorn has been replaced by a man with foundry experience and a master's degree in health and safety who oversees a staff of three.

 

Part Two of Part II

Here's the link: http://www.nytimes.com/2003/01/09/national/09PIPE.html?pagewanted=all&position=top

_________________
The Environmental Issues

At many McWane plants, government records and interviews with employees describe persistent defiance of laws protecting workers and surrounding communities from toxic pollution. In a corporate culture where production is paramount, McWane plants have been sanctioned repeatedly for failing to stop production to repair broken or ineffective pollution controls. Several environmental managers described production equipment being tampered with so it wouldn't shut down automatically when pollution controls failed. They told of senior company executives ordering them to ignore requirements for pollution permits.

"I was asked to do things I didn't want to do," said one manager responsible for environmental safeguards at a plant in Canada. Some former managers said they quit because they feared they were being forced to break the law. "It wasn't a normal work environment," one said.

McWane has 10 major United States foundries. A few have relatively minor records of environmental problems, officials said. The Ohio plant, for example, has earned praise from state regulators.

But five plants — in Alabama, Utah, Texas and New Jersey — have been designated "high priority" violators by the Environmental Protection Agency. A sixth, in New York, has been convicted of a felony, illegal possessing hazardous waste.

Mr. Page said that McWane plants "have overwhelmingly abided" by pollution laws. He also cited some $31 million in recent pollution control projects as evidence of the company's commitment to a clean environment. "On occasion, all companies of any size receive citations," he wrote.

Union Foundry, which has received some of the highest environmental fines ever levied by Alabama, has been cited for more than 50 violations, records show.

"They have discharged air pollution — lead and arsenic and copper and thallium off into the air," said Byron Bart Slawson, a lawyer for the Alabama Environmental Council, who filed suit against the plant. "They've been spreading it across this community for years."

At Union Foundry, OSHA testers found that at least seven workers had been exposed to exceptionally high levels of silica in 1996. Exposure to silica can cause silicosis, a lung disease that can lead to a slow death. OSHA inspectors said plant managers, including Mr. Dorn, failed to ensure that respirators were used, even though conditions "were obviously bad."

Inside McWane plants, workers have repeatedly complained of blurred vision, severe headaches, respiratory problems and other ailments after being exposed, often without training or protection, to chemicals and agents used to make pipes, government records and other documents show.

In 1998, Shane Shaw, a 19-year-old employee at a McWane plant in Provo, Utah, was admitted to an emergency room. His urine was black as coffee. His kidneys were failing. Other organs were beginning to shut down. He was close to death, medical records show.

In time, his doctors diagnosed severe arsenic poisoning — the result, they concluded, of chipping arsenic-laced residue from casting machinery without a respirator. In an interview, Mr. Shaw said that he was not required to wear a respirator, nor was he warned of the dangers of arsenic. He has recovered and left McWane, but his doctors say he faces an increased risk of cancer.

Six months before Mr. Shaw became ill, a state OSHA inspector had visited the plant. "The respirator program was totally ineffective," the official wrote.

At Atlantic States Cast Iron Pipe, the McWane plant in Phillipsburg, N.J., residents have complained about pollution for decades. Local newspapers reported that crossing guards near the plant once had to wear gas masks. Since 1995, the plant has been found in violation of state and local environmental rules and emission limits more than 150 times. It has paid or faces more than $3 million in fines. Even so, regulators still consider it one of the state's worst polluters.

"One looks in vain for any evidence of corporate stewardship with respect to environmental issues," Bradley M. Campbell, the state's environmental commissioner, said. McWane's conduct, he said, amounts to a pattern of "resistance, recalcitrance and denial, if not outright lawlessness."

On a Sunday morning in December 1999, Brian and Kathy Fleming awoke in their home on the banks of the Delaware River and noticed oil on the water. Authorities traced the 8.5-mile-long slick to a storm water pipe near Atlantic States. At the plant a sump pump was draining a pit filled with the same kind of oily substance into storm drains.

State and federal investigators raided the plant but learned little about who had authorized the pumping. The case was dropped after McWane contributed $50,000 to an environmental group. But two former plant employees say the investigators failed to detect a string of illegal discharges that dwarfed the December spill.

The men, Robert Bobinis, a maintenance supervisor, and Brad Schultz, a member of his crew, said in separate interviews that each week, during the midnight shift, they were ordered to pump thousands of gallons of water fouled with industrial contaminants into drains feeding the Delaware.

The water filled huge basement vaults that had to be pumped dry so production could continue, both men said. "They didn't want to shut down," said Mr. Bobinis, who filed a whistleblower lawsuit against Atlantic States; it was settled, he said, for a sum he declined to disclose.

Mr. Page called the men's accusations unsubstantiated.

The same thing, however, happened at McWane Cast Iron Pipe in Birmingham, according to several employees and state environmental records. Workers waited for night or heavy rainstorms before flushing thousands of gallons of polluted water through storm drains and into local rivers and creeks. Mr. Rester, the former plant manager, said the illegal dumping was "standard procedure," done with the full knowledge of senior McWane executives, including an executive vice president.

"All he would ever say is, `Whatever we had to do to run 'em we had to do it,' " Mr. Rester recalled. "You know, `Get rid of the water. We got to run.' "

The Safety Statistics


At Union Foundry, there is a new sign at the front gate: "Safety Starts With Attitude." In the last year, McWane has embarked on a high-profile safety campaign.

In his written responses, Mr. Page, the company president, said spending on safety-related capital projects had "increased significantly over the past five years."

The commitment, he said, has paid off. Injury rates at McWane's United States plants, he said, have steadily declined since 1995 and compare favorably with the rest of the cast-iron foundry industry.

"It would be foolish not to protect our most valuable and essential assets — our people," Mr. Page wrote.

There is no independent way to confirm the company's assertions about injury rates; OSHA refused to release its own calculations, saying they are not public.

But internal McWane documents obtained by The Times — reports from plants to corporate headquarters — show that while some foundries have reported declines in injuries, others have reported sharp increases.

At one major McWane subsidiary, Ransom Industries, which includes eight foundries in the United States and Canada, injuries have surged by virtually every internal McWane measure.

From 1999 to 2001, for example, the number of lost workdays caused by injuries more than tripled. Indeed, in 2000, the last year for which direct comparisons are available, Ransom's rate of injuries that resulted in lost workdays was nearly triple the industry average.

McWane's fatality rate since 1995 — though lower than for industries like timber and fishing — is about six times the rate for primary metal manufacturers, the category that includes cast-iron foundries.

At the same time, OSHA records show that at several McWane plants, inspectors have found the company's injury reports to be suspect.

For example, at the plant in New York in 1997, many workers told inspectors about injuries not listed in the plant's reports to OSHA. The inspectors determined that the omissions were deliberate; in 108 instances, they said, the plant had failed to report an injury or underreported the number of workdays an employee missed.

When OSHA factored in the missing injuries, the rate of serious injuries more than doubled, placing the plant well above the industry average.

Mr. Page blamed the problem on "a simple breakdown in communication."

Several current and former managers at other plants, though, said they had techniques to manipulate injury totals.

"Once you have numbers, you have fines, you have attention and you have inspections," a former senior safety manager said.

He described a simple way of disguising the severity of injuries from OSHA: "I'd go to the hospital and get guys out of bed or a wheelchair to avoid a lost-time incident." Even if the worker sat in an office all day, he explained, McWane could still claim that his injury had not required him to miss work.

The Times asked J. Paul Leigh, a health economics expert at the University of California at Davis and an author of "Costs of Occupational Injuries and Illnesses," to examine the internal injury reports as well as Mr. Page's analysis of injury rates.

Professor Leigh said he was "suspicious" that some plants reported so few minor injuries — a possible indication, he said, that employees are reluctant to report less severe injuries for fear of disciplinary action.

Indeed, in interviews at several plants, workers said that fear of punishment, and sometimes firing, had taught them to keep injuries — even deeply painful ones — secret whenever they could.

Mr. Page said that "accident incident rates are not the best way to measure the safety environment in a company."

He also disputed the significance of McWane's 404 OSHA violations since 1995. McWane paid fines to settle many of those citations, but without acknowledging any fault.

"The vast bulk of what you present constitutes claims and assertions that have never been upheld or proven to be true," he wrote.

The Cast of Another Die


"I just knew for a long time that sooner or later, somebody's going to have to stop it, somebody's going to have to say something, and I was always hoping it would be somebody besides me."

Finally, though, Robert Rester decided that he needed to speak out about McWane.

Part of it was bitterness. When first contacted in June, he had just taken sick leave for a heart problem. At first reluctant to speak, he said he had begun to suspect that "what I've watched them do for 25 years to other people" was being done to him. In September, while still on leave, the company fired him, saying he had failed to get treatment for "alcohol abuse." He denies any alcohol problem; since then, records show, McWane tried to hire him back.

But Mr. Rester says he is also motivated by guilt, by a sense that he gave himself to the wrong cause. "I've done so much that's not right for that company," he said.

The misgivings began, he said, when he was sent to manage a new plant in Hamilton, Ontario. "We were going to go up there and show them how to make pipe" McWane-style, he recalled. But the Canadians bluntly told him they would shut the place down if he treated them the way McWane treated its workers in the United States.

"I had to find a way to get people to work without being, well, a big white bwana," Mr. Rester said. He learned that he could get more from his workers if they "don't mind coming through the gate."

Years later, back in Birmingham as plant manager at McWane Cast Iron Pipe, he said he tried to import some Canadian lessons. He set about spending money to clean the plant up and change the tone. The makeover died with the arrival of a new general manager, he said. Mr. Rester protested and was demoted, shipped off to Union Foundry as a maintenance supervisor.

Telling his story recently, Mr. Rester began musing about another foundry in Birmingham. It is the American Cast Iron Pipe Company, known as Acipco, and he knows it is not in his future. "The only time you can get a job at Acipco," he said, "is if somebody retires or dies."

Acipco, as workers and managers there describe it, is a place where safety and a clean environment are not captive to the demands of production. Workers take yoga classes in a modern health club with the latest in weight-training equipment and a spring-loaded floor for aerobics. They get cash bonuses if they keep their cholesterol down. The company has even spent millions of dollars to install special air-conditioned booths in the hottest parts of the plant.

`"We had people say, `You're crazy, that won't work. Why are you doing that?'" the company's president and chief executive, Van L. Richey, said. But they did it, he said, and productivity increased.

Just this week, Acipco was ranked sixth in Fortune magazine's list of the 100 best employers in America. Acipco, in short, sounds almost like a caricature of blue-collar paradise. But it also strongly suggests that the McWane way is not the only way to survive, and succeed, in the dangerous and increasingly competitive business of making cast-iron pipe.

Mr. Richey takes pains to point out that the company is not a utopia. Acipco has paid millions of dollars to settle racial discrimination complaints and, with the rest of the industry oligopoly, has faced periodic bid-rigging investigations, although it has never been charged with any crime.

Still, several statistical measures show how different Acipco is from McWane.

At some McWane plants, turnover rates approach 100 percent a year. Acipco — with a work force of about 3,000, three-fifths the size of McWane — has annual turnover of less than half a percent; 10,000 people recently applied for 100 openings. McWane has also been cited for 40 times more federal safety violations since 1995, OSHA records show.

Acipco was founded in 1905 by John J. Eagan, a devoutly Christian industrialist from Atlanta who had resolved to demonstrate that a factory could be run on the basis of the Golden Rule: Do unto others as you would have them do unto you.

Mr. Eagan believed that if workers felt they had a genuine stake they would work harder and smarter and produce more. To carry out his plan, he decided to institute profit sharing for all employees. Upon his death, he declared, Acipco's workers would inherit the company.

Many of his fellow industrialists ridiculed the plans as do-gooder nonsense, doomed to failure. Historians say the doubters included Acipco's own president, J.R. McWane.

Mr. McWane had spent much of his early career at Acipco. But days before the profit-sharing plan was made public, he severed all financial ties with Acipco and set up his own pipe shop across town, the McWane Cast Iron Pipe Company. The two companies — and their dueling visions of capitalism — have been in competition ever since.

Tomorrow: Failures of regulation



Workers toil in intense heat at furnaces at the American Cast Iron Pipe Company in Birmingham, Ala. Acipco, as the company is known, and the McWane foundries have different philosophies. Acipco is a place where safety and a clean environment are not captive to the demands of production.



A sign at the gate of the Union Foundry in Anniston, Ala., is part of a new high-profile safety campaign.

 

Part I of Part III

Deaths on the Job, Slaps on the Wrist
By DAVID BARSTOW and LOWELL BERGMAN


LMIRA, N.Y. — After all the search warrants, witness interviews and forensic tests, a team of veteran prosecutors and investigators came to an overwhelming conclusion about the death of Frank Wagner. The industrial explosion that killed him, they agreed, was the result of reckless criminal conduct by his employer, McWane Inc., the Alabama conglomerate that owns a cast-iron foundry here in upstate New York.

"The evidence compels us to act," the prosecution team wrote in a confidential memorandum to the state attorney general, Dennis C. Vacco, in 1996. The team urged him to ask a grand jury to indict McWane and its managers on manslaughter and other charges. A grand jury inquiry, senior investigators believed, could have taken them up the corporate ladder.

But Mr. Vacco never sought an indictment against McWane for any crime. Only after an unusual intervention by the United States attorney in Buffalo, who threatened federal charges, did McWane agree to plead guilty to a state felony and pay $500,000. But as the company and Mr. Wagner's widow are quick to note, that charge, a hazardous-waste violation, specifically did not hold McWane accountable for Mr. Wagner's death.

Looking back in bitterness, many of the investigators view the devolution of the Wagner case as the result of a hardball campaign of political interference orchestrated by McWane, one of the world's largest makers of cast-iron sewer and water pipes.

"It was a reckless act on the part of certain individuals in that company that caused the death of that person. I'll believe that till the day I die," said Donald Snell, who supervised the state environmental agency's investigation. "The ends of justice were not met."

Still, what is most remarkable about the two-and-a-half-year investigation of Mr. Wagner's death is that it happened at all.

McWane is one of the most enduring violators of worker-safety and environmental laws, according to government records and regulators. In interviews, exasperated regulators who have tangled with the company use words like "lawless" and "renegade" to describe McWane.

The responsibility for that record, though, is hardly McWane's alone. McWane has persisted largely unchecked by taking full advantage of a regulatory system that has often proven itself incapable of thwarting flagrant and continual safety and environmental violations by major corporations, according to a nine-month examination by The New York Times, the PBS television program "Frontline" and the Canadian Broadcasting Corporation program "The Fifth Estate."

In plant after plant, year after year, McWane workers have been maimed, burned, sickened and killed by the same safety and health failures. Flammable materials are mishandled; respirators are not provided; machines are missing safety guards; employees are not trained. The evidence spills forth from hundreds of regulatory files scattered in government offices around the country — more than 400 safety violations and 450 environmental violations since 1995 alone.

Yet regulators and law enforcement officials have never joined forces to piece this record together, never taken a coordinated approach to end patterns of transgression. Their responses, piecemeal and disjointed, bring into sharp relief weaknesses in government's ability to take on corporations with operations spread far and wide.

"The current law is inadequate to deal with serious violators, repetitive violators, situations where people are put at risk day after day," said Charles N. Jeffress, who headed the Occupational Safety and Health Administration in the late 1990's.

Nine workers have been killed in McWane plants since 1995. OSHA investigators concluded that three of those deaths resulted directly from McWane's deliberate violations of federal safety standards, records show. Safety lapses at least contributed to five other deaths, investigators found.

Yet those deaths rarely received more than cursory attention from state and local law enforcement authorities. The police often did little more than photograph the body and call the coroner. Local district attorneys, if they were informed, generally deferred to OSHA.

For its part, OSHA referred only one of the deaths to the Justice Department for possible federal prosecution. That case ended with a single misdemeanor plea; no executive was charged.

Referrals are "considered a waste of time," said Patrick Tyson, an OSHA director in the Reagan administration.

Indeed, under federal law, causing the death of a worker by willfully violating safety rules — a misdemeanor with a six-month maximum prison term — is a less serious crime than harassing a wild burro on federal lands, which is punishable by a year in prison.

A close look at McWane's recent history, and especially at the Wagner case and deaths in McWane plants in New Jersey, Texas and Alabama, illustrates how the company has been able to evade, beat back and often outlast government scrutiny. The examination was based on thousands of government and company documents and hundreds of interviews with current and former McWane employees, including senior managers, safety and environmental supervisors, personnel directors and production superintendents.

McWane, current and former managers said, viewed the burden of regulatory fines as far less onerous than the cost of fully complying with safety and environmental rules. At the time of Mr. Wagner's death, company budget documents show, McWane calculated down to the penny per ton the cost of OSHA and environmental fines, along with raw materials. Since Mr. Wagner's death at the Kennedy Valve plant here, 85 miles southeast of Rochester, the company has paid less than $10 million in fines and penalties for its safety and environmental violations and three criminal convictions — less than 1 percent of its annual revenues.

In a written statement, the company's president, G. Ruffner Page, said it was company policy to obey the law.

"In organizations made up of human beings we must deal with human errors that sometimes have tragic consequences," Mr. Page wrote. "In those situations where we have not been successful in preventing violations of our policies, we have taken concrete steps to prevent future occurrences, including management changes, increased focus on safety and the institution of more rigorous compliance programs."

Mr. Page asserted that McWane "recently reached an agreement" with OSHA "to begin a cooperative effort to further improve safety." No such agreement exists. On Jan. 3, OSHA notified McWane that it did not qualify as an "OSHA partner" because the company had not yet shown sufficient commitment to workplace safety.

"Clearly they have a serious record with us, and we need to do something different," said the current OSHA administrator, John L. Henshaw.

After Frank Wagner's death, the desperation of fellow workers found expression in a bumper sticker that began showing up on pickups in the parking lot of the plant on the edge of town: "Pray for me. I work at Kennedy Valve."

Foiling OSHA: The Forklift Case


Resistance starts the moment an inspector shows up at the gate, say managers and workers at McWane plants across the country and in Canada. Several senior managers said their plants followed a set procedure.

Step 1, they said, was to stall the inspectors outside as alarms went out to supervisors to fix or cover up violations. Machines operating without required pollution controls would be shut down. Machines with obvious and irreparable safety defects would be hidden behind stacks of pallets. Chemical spills would be mopped up. Safety guards, often left off for weeks at a time, would be reattached.

Clyde E. Dorn, former safety director at a plant in Anniston, Ala., said he simply lied. Once, he recalled, he withheld test results that showed workers were severely overexposed to silica, which can cause the lung disease silicosis. Robert S. Rester, a former plant manager in Birmingham, said his workers fooled environmental regulators by submitting samples from the city water supply. It was just that simple, he said.

Mr. Page wrote, "To my knowledge, the company has never deliberately submitted false test results to any agency."

In violation of OSHA rules, McWane managers have also altered workplace death scenes before investigators arrived, police and OSHA records show.

One such case occurred at the Atlantic States foundry in Phillipsburg, N.J. Not only was a possible criminal investigation undermined, but the case also yielded a picture of persistent safety problems disregarded there and at other McWane plants.

At 6 a.m. on March 24, 2000, an Atlantic States worker named Alfred E. Coxe was run over by a forklift. Patrol officers arrived within minutes, and as Mr. Coxe was being airlifted to a hospital, they set about preserving the scene. Using chalk, they marked the position of the forklift and tire marks, their reports show. Meanwhile, detectives from the county prosecutor's office and the Police Department were summoned, along with officials from the medical examiner's office and OSHA. The detectives arrived first, within two hours.

The forklift was gone.

In their reports, the detectives said plant officials were evasive about its whereabouts. What is more, they wrote, plant workers had repeatedly run a street sweeper over the area, wiping away chalk marks and tire marks. Workers told a local newspaper reporter that supervisors had rushed to "clean up" before OSHA arrived.

The detectives interviewed the driver, Juan F. De Los Santos Sr., who told them that the forklift brakes had failed when he tried to keep from hitting Mr. Coxe, according to police reports.

There was one more thing: the driver told detectives that "supervisors were aware of this problem and continued to allow him and other employees to use this forklift," records show. Only after finishing his statement was Mr. De Los Santos told that Mr. Coxe, a 47-year-old Vietnam veteran with a wife and son, had died of grievous internal wounds. Mr. De Los Santos put his head in his hands and began to cry.

OSHA inspectors arrived four and a half hours after Mr. Coxe was struck. They asked plant managers to produce the forklift. It was brought from the maintenance area. Plant officials were asked if it had been tampered with. They said no, and a manager conducted a series of skid tests. "At full speed the front wheels, which are the only wheels with brakes, leave 12 1/2 feet of skid marks," the medical examiner, who witnessed the tests, noted in his report.

The tests seemed to put to rest any questions about the brakes. Later that day, an OSHA official told the local newspaper that the forklift appeared to be fine.

The county prosecutor, John Laky, decided not to pursue charges. "It troubled me that that forklift was removed before it could be inspected," he recalled in an interview. Still, he said, it was not clear that Mr. De Los Santos could have avoided Mr. Coxe even if the brakes had worked perfectly.

But Mr. Laky acknowledges making his decision without knowing several things about the forklift, its driver and McWane.

Contrary to the skid tests witnessed by OSHA, photographs and notes taken by the first officers at the scene neither showed nor described any skid marks from the front tires, the only ones with brakes. According to those records, the only tire marks at all were behind the rear tires, a discrepancy that remains unexplained.

Mr. Laky said he had assumed that the marks were skids caused by applying brakes on the rear tires. He was shocked when told that the forklift's only brakes were on the front.

Mr. Laky was also unaware of persistent forklift problems at Atlantic States, a pattern that OSHA inspectors began to discover in the weeks after Mr. Coxe's death.

The first clue came from another driver assigned to the forklift that struck Mr. Coxe. That driver told OSHA inspectors that it had been having brake problems for more than a month, that he had reported those problems and that nothing had been done.

With a little more digging, OSHA inspectors found that defects reported by drivers were routinely ignored, in part because there was only one mechanic for 14 forklifts in 24-hour use. They also discovered that neither the mechanic nor the drivers were authorized to take forklifts out of service for safety defects. Only senior supervisors could do that, they found.

There were problems with the drivers, too. Mr. De Los Santos was not certified to operate a forklift; the year before, he had struck his supervisor with a forklift, breaking the man's foot. What is more, managers had assigned at least six other uncertified workers to drive forklifts.

McWane's corporate safety policies required that forklift drivers be trained and certified, and that forklifts with safety problems be pulled from service and repaired. But the same forklift problems that OSHA found at Atlantic States have also been discovered at other McWane plants.

One forklift very nearly ran over an OSHA inspector at Union Foundry in Alabama, records show. During another visit there, inspectors found that brakes and horns "on most forklifts" were not working.

Union Foundry "cut back on their servicemen for the vehicles, and consequently there is not enough help to get all the repairs completed as needed," OSHA wrote. Employees had to keep running them "even when vehicles are reported with defects."

This particular inspection, which resulted in a $2,000 fine for the defective forklifts, was conducted one year before Mr. Coxe was killed at Atlantic States.

Several weeks after Mr. Coxe's death, OSHA officials returned to inspect the foundry's forklifts. They examined forklift inspection sheets filled out each day by the drivers. The sheets indicated safety defects on all 14 machines — including No. 24, the one that had killed Mr. Coxe.

Its brakes were not working properly.

Mr. Page blamed "driver inattention" for Mr. Coxe's death and denied any effort to alter the scene "for the purpose of deceiving OSHA." He said the police had given plant workers permission to move the forklift. Several police officers involved in the case rejected this assertion, saying that even rookie officers know to preserve fatality scenes until detectives arrive.

Without admitting any fault, McWane paid $10,500 to settle OSHA violations for operating unsafe forklifts at Atlantic States and failing to train drivers.

In a prepared statement, Mr. Henshaw, the OSHA administrator, said his investigators "acted to the fullest extent possible" based on the available evidence. Because of a six-month statute of limitations on OSHA violations, he said, the agency cannot act now, he said.

But, he added, "if other law enforcement officials have reason to pursue questions about the case at this time, we would defer to their authority and cooperate fully."

 

Part II of Part III
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Politics and an Exploding Oven


Jane Wagner saw the priest waiting at the hospital and understood at that precise moment that her husband was dead. "All our plans that we had, you know, hopes and dreams that we had, were just all gone," she said. "Just blew up. Literally blew up."

Frank J. Wagner, 40, was operating an industrial oven at Kennedy Valve when it exploded just before 2 p.m. on Jan. 13, 1995. The oven's heavy steel door was blasted open, crushing Mr. Wagner against a pillar.

Local authorities, the first on the scene, performed the barest of investigations. The police conducted no witness interviews, reports show. James T. Hayden, then the Chemung County district attorney, says he quickly determined there was no basis for homicide charges. "There was no way to know he would be at the wrong place at the wrong time," Mr. Hayden said.

The case might have ended there, but OSHA investigators called criminal investigators at the New York Department of Environmental Conservation, who also brought in the state attorney general's office. They soon turned up a wealth of evidence never considered by Mr. Hayden.

The oven exploded, they concluded, because it was being used to incinerate hundreds of gallons of old industrial paint. The paint was exceptionally volatile. The paint label said: "Warning! Flammable. Keep away from heat, sparks and flame." The oven's instruction manual warned that the oven should not be used for "anything that is easily ignitable." A plant engineer told investigators he had warned bosses "that burning flammable liquids in the oven was an absolute no-no."

Yet senior plant managers had ordered workers, including Mr. Wagner, to do just that, instead of paying for proper disposal. "Burn in the incinerator," the plant manager wrote in a memorandum seized by investigators. As for being in the wrong place at the wrong time, Mr. Wagner was under specific instructions to monitor a control panel by the oven door.

Nor was this an isolated error. OSHA's civil inquiry found 85 safety violations, mostly serious or repeat offenses, including exposing workers to fire hazards.

By late 1995, prosecutors had prepared draft indictments that proposed charging McWane and several executives with a string of felonies, including second-degree manslaughter, endangering public health and unlawful possession of hazardous waste, records show. "Even a child knows that you shouldn't put a bucket of gasoline in a fire," prosecutors wrote in one memorandum, summarizing the theory of their case.

All they needed was for Mr. Vacco, New York's new Republican attorney general, to let them present the case to a grand jury. But as a newly obtained McWane legal document shows, McWane made it clear that Mr. Vacco would pay a steep political price for pursuing any indictment.

In a memorandum to Mr. Vacco, the company's lawyers asserted that an indictment would send a message that contradicted his "business-friendly policy." They also warned that an indictment would bring Mr. Vacco "adverse press" and would mean the "possible closure" of Kennedy Valve, which provided 320 jobs in an "economically depressed area" that was part of Mr. Vacco's upstate political base.

To help deliver the message, McWane enlisted John O'Mara, one of the state's most powerful Republicans and a man extraordinarily well positioned for the job.

Mr. O'Mara, a former Chemung County district attorney, was an adviser not just to the Republican governor, George E. Pataki, but also to Mr. Vacco's political patron, Alfonse M. D'Amato, then a United States senator. Mr. O'Mara was chairman of Mr. D'Amato's judicial-screening panel and had been on the selection committee that recommended Mr. Vacco for his previous job, as the federal prosecutor in Buffalo.

Records also show that, as attorney general, Mr. Vacco had hired Mr. O'Mara's daughter-in-law as a supervising assistant attorney general in Binghamton.

While the career prosecutors dealt with one set of McWane lawyers, Mr. O'Mara opened secret discussions with Mr. Vacco's chief political aide, William M. Flynn, the first deputy attorney general, several officials involved in the case said.

"You were walking into a buzz saw," said Ed Saslow, who supervised all criminal prosecutions in Mr. Vacco's office. "You had the D.A. and O'Mara saying, `No case.' It was the wrong foot from the get-go."

Months went by without a decision from Mr. Vacco. "The more time that elapsed, the more we realized it was drying up and dying on the vine," said Mr. Snell, now retired.

Mr. Flynn and Mr. O'Mara did not return telephone messages seeking comment.

In a recent interview, Mr. Vacco acknowledged contacts between Mr. O'Mara and his office but denied having been improperly influenced. He said he had taken a personal interest in the case "to make sure that we did everything by the book." Any lack of action, he added, was not because of political interference but because of "foot dragging" by indecisive career prosecutors. "What happened here is that my assistants couldn't make a decision," he said.

Prosecution records suggest otherwise. In a 1996 confidential memorandum summarizing their legal case and analyzing potential defenses, the prosecution team, supported by senior supervisors, strongly urged Mr. Vacco to seek an immediate indictment.

An indictment for manslaughter or criminally negligent homicide, they said, was "legally and practically justified." The company's economic threats, they said, were a "naked attempt at extortion."

Still, Mr. Vacco demurred.

Today, he acknowledges that he could have obtained an indictment for criminally negligent homicide. But he says he was not persuaded by what he called a "tenuous" prosecution theory.

"Would there have been a conviction? I don't know," he said. "It would have been a titanic battle."

As for McWane's economic threats, he said, "I don't think that a prosecutor should put his or her head in the sand when making these judgments."

But investigators, prosecutors and Mrs. Wagner's lawyer were so upset that they quietly approached the United States attorney in Buffalo, Patrick Nemoyer, a Clinton appointee. Peter J. Ahearn, the Federal Bureau of Investigation chief in Buffalo, said his agents were struck by the strength of the evidence. "I mean it was right there on a silver platter to be done," he said.

In January 1997, two years after Mr. Wagner's death, federal prosecutors convened the Kennedy Valve Task Force and issued their first grand-jury subpoenas. At the same time, OSHA inspectors were discovering evidence that Kennedy Valve was still dangerous. They found that the plant was running machinery against manufacturers' instructions, resulting in two explosions that burned several employees.

Mr. Vacco was livid at the federal intrusion. In a contentious discussion, his aide, Mr. Flynn, persuaded the federal prosecutors to halt their investigation. McWane and the attorney general's office quickly began negotiating a plea bargain.

"The corporation and their advocates didn't want to face federal charges," Mr. Snell said. "They had absolutely no control of the federal government. They apparently had a lot of confidence in facing the state and the attorney general's office."

McWane admitted no responsibility for Mr. Wagner's death. Instead, the company pleaded guilty to illegally possessing hazardous waste — the obsolete paint — and agreed to a $25,000 fine and $475,000 in contributions to various environmental programs and local organizations. The plant manager pleaded guilty to a misdemeanor and was ordered to pay $90 in court costs.

"The death was not the result of any criminal misconduct on the part of anyone at Kennedy, but rather a terrible industrial accident," Mr. Page, McWane's president, said in a written response.

Mr. Vacco announced the plea deal on the courthouse steps. "Not only does this plea agreement hold Kennedy Valve accountable for the wrongful death of its employee, but it also honors Frank Wagner's memory in a lasting and positive way," he said.

Two weeks later, OSHA reported 35 more safety violations at Kennedy Valve. Mr. Vacco's chief environmental prosecutor, Andrew D. Goldsmith, resigned to join the Justice Department — in part, colleagues said, because he was demoralized over his boss's handling of the Wagner case.

After her long battle to have McWane held accountable for her husband's death, Jane Wagner says she felt worn down and defeated. "After a while," she said, "everybody gets tired of hearing about it, you know. It's like, `Oh, isn't this over yet?' you know, and, `Jane, you need to move on.' "

Looking to Punish


On June 29, 2000, a maintenance mechanic named Rolan Hoskin was crushed in a conveyor belt at Tyler Pipe in Tyler, Tex. His death was the result of several serious and preventable safety failures.

There was no safety guard on the conveyor, though McWane had been cited many times for similar violations. Mr. Hoskin had also been trained to adjust the belt while it was moving, another violation for which McWane had been repeatedly fined.

The history of the Tyler plant was a case study of a persistent violator, of fines assessed and paid without any discernable impact. Only nine months before Mr. Hoskin's death, OSHA had announced $169,500 in fines against Tyler Pipe for, among other things, putting employees' lives at risk by allowing them to work on and around unguarded and moving conveyor belts. OSHA officials had been particularly appalled by the case of Ira Cofer, a maintenance mechanic whose arm was torn apart in an unguarded conveyor belt.

Now, with Rolan Hoskin's death, federal officials resolved to punish McWane.

As with Mr. Wagner in Elmira, local authorities in Tyler had no such interest. The police did not even notify the district attorney's office about Mr. Hoskin's death.

One official in Texas was intensely interested, though — Kathryn Delaney, the OSHA area director responsible for Tyler. She had long experience with Tyler Pipe. Union leaders admired her doggedness. Once, they recalled, she had threatened to open a field office across the street. Tyler Pipe's executives viewed her with utter contempt, several supervisors said.

Although OSHA had already proposed civil fines of $1,015,000 in response to Mr. Hoskin's death, Ms. Delaney and other top agency officials took the rare step of referring the case to the Justice Department.

Of some 200,000 workplace deaths since OSHA's creation in 1972, OSHA has referred just 151 cases to the Justice Department, records show. Federal prosecutors declined to act on more than half of those referrals; 11 people have been sentenced to prison.

The Hoskin case made its way to William P. Sellers IV, virtually the only department lawyer dedicated to prosecuting workplace deaths. More than any prosecutor in the country, he has seen the formidable obstacles to winning even a misdemeanor conviction for causing an employee's death.

To convict a company, prosecutors must prove that a death was caused by willful disregard of safety rules. As for prosecuting individual officials, appellate decisions have made it especially difficult. It is not enough to show that supervisors or middle managers knowingly put lives at risk. Prosecutors must prove that senior executives knew of a specific safety problem, understood the risk of death and ignored it.

The essence of McWane's defense — set forth in response to a civil suit brought by Mr. Hoskin's family — was that senior executives were blameless, that Mr. Hoskin and perhaps low-level supervisors had failed to abide by corporate safety procedures.

Nonetheless, Mr. Sellers pressed on, with help from Ms. Delaney and federal prosecutors from Dallas. Their hope was to use other federal criminal laws with felony penalties, like lying to a federal officer, to prosecute McWane executives, a person involved in the investigation said. By last spring, the investigation appeared to be gathering momentum. Several years of medical records had been subpoenaed. Federal investigators began requesting interviews with supervisors.

At a meeting last spring with the human resources manager and company lawyers, several supervisors were advised not to cooperate with investigators, one supervisor said in an interview. "He explained a lot to us about the Fifth Amendment," the supervisor said of the manager. By summer, a grand jury was hearing evidence against Tyler Pipe, according to Layne C. Lathram, a spokeswoman for OSHA.

Then the case came to an abrupt end.

It happened in an unusual court hearing last July 19. In a brief session, a charge was filed, a plea was entered and a McWane subsidiary was sentenced for a single misdemeanor — causing Mr. Hoskin's death by willfully violating federal safety rules. The company paid $250,000, half the maximum, and was placed on probation for a year. It will be subject to four random OSHA inspections. No executive was charged, nor was the name McWane uttered in open court.

The sudden plea left a lot of people disappointed and confused. Some Tyler Pipe workers had seen in the federal investigation a ray of hope. Senior OSHA officials said they had been given no heads-up about the deal, even though Ms. Delaney and other OSHA compliance officers were deeply involved in the investigation. Nor was Mr. Hoskin's family consulted.

The Justice Department refused to let Mr. Sellers speak to a reporter about the plea.

But if the outcome suggests the system's limitations, it pays to consider what happened at another McWane plant less than two months after Mr. Hoskin's death.

On Aug. 22, 2000, at Union Foundry in Alabama, Reginald Elston, 27, an ex-Navy man with an infant daughter, was crushed to death while clearing debris from a conveyor belt. As in the Hoskin case, the safety guard had been removed. It was being used as a table for Cokes. The police closed the case in six days.

When OSHA investigators arrived, they did not know about Mr. Hoskin's death, and Mr. Dorn, the safety director, was careful not to volunteer the information. "You don't tell OSHA, you know, more than they need to know," he said in an interview.

OSHA's failure to quickly connect the two deaths — it took at least several weeks, records show — was understandable. There is no centralized rap sheet for corporations as complex as McWane, with its web of subsidiaries under different names.

But even if they had a central file, OSHA inspectors have no authority to undertake a comprehensive investigation of a corporation with similar violations in several states, agency officials said. As a result, they said, patterns of misconduct often go undetected. Cooperation between OSHA and other regulatory agencies is all but nonexistent, because of incompatible computer systems and age-old bureaucratic resentments.

As at Tyler Pipe, at Union Foundry a critical question was whether senior managers were aware that the safety guard had been removed. The company did not make it easy to answer that question.

Shortly before Mr. Elston's death, Mr. Dorn said in the interview, a maintenance worker had identified the missing guard as a potential hazard in a handwritten note to his supervisors. Mr. Dorn said he discovered the note just as OSHA was concluding its investigation of Mr. Elston's death. Recognizing that the note could trigger a criminal prosecution, he said, he briefly considered handing it over to OSHA. Then he thought better of it. "I couldn't afford to be fired," Mr. Dorn explained.

Mr. Page denied any company cover-up. "If Mr. Dorn concealed anything from investigators, he likewise concealed it from the company," he wrote.

OSHA did not refer Mr. Elston's case to the Justice Department, though the agency investigators concluded that his death, like Mr. Hoskin's, was the result of deliberate indifference to safety rules. OSHA officials would not discuss their handling of the case.

OSHA did, however, propose $181,200 in civil fines, later reduced to $147,700.

A Toothless Watchdog


Since OSHA's establishment by President Richard M. Nixon, workplace deaths have been cut in half, the agency says. How large a role OSHA has played in achieving this reduction, though, is the subject of considerable debate.

The agency's charter is prevention, not punishment. But its critics — and many inspectors — have long complained that OSHA lacks the tools to change the conduct of major employers with egregious records.

The agency does not do regular inspections of all workplaces; indeed, the rules sharply limit its access. Moreover, critics say the agency's fines are far too low, particularly given the lengthy appeals process. In its 32-year history, the fines have been increased just once, in 1990, when the maximum sanction for a single safety violation was increased to $70,000 from $10,000.

OSHA can seek higher fines by citing multiple violations. But over three decades it has proposed civil fines exceeding $1 million against just 15 employers, OSHA officials said.

"The real solution is they need to change the law," said Mr. Tyson, who ran the agency in the Reagan administration. "They need to make `killing a worker' a felony."

Senior Justice Department officials have testified before Congress about the urgent need for increased criminal penalties for repeat violators.

But the current OSHA chief, Mr. Henshaw, says he sees no such need. Existing laws, he said in an interview, are "fairly strong," and the rules governing fines give him flexibility to punish the worst violations. He declined to say if causing a worker's death by willfully ignoring safety rules should be upgraded to a felony.

"My role is on the civil side," he said.

The Bush administration has proposed a 1.7 percent cut in OSHA's budget for 2003. But Mr. Henshaw said he had adequate resources "to carry our strong, fair and effective enforcement." OSHA, he said, has increased inspections by cutting paperwork. Fines are up slightly, too, the agency said.

Still, Mr. Henshaw acknowledged that despite more than 100 inspections, his agency had failed to protect McWane's employees. His plan, he said, is five more unannounced inspections in the next year.

"They've got to change, and they indicate the willingness to work," he said. "But the proof's in the pudding. We will not put any more people in jeopardy."

Adding to a Grim Toll


Several weeks after that interview, on Oct. 29, a machine operator at Tyler Pipe was crushed between a truck and a metal bin. The worker, Guadalupe Garcia, 43, was nearly cut in half, his family said, and doctors had to squeeze bags of blood into him, more than 200 units. Both legs were amputated, and he is recovering.

On the day he was crushed, OSHA was in the midst of an inspection at Tyler Pipe. Ms. Delaney, the OSHA area director, declined to comment on the results but said, "Mr. Garcia's incident caused us to shift and expand the focus of what we are looking at."

Mr. Garcia's injuries, though, touched off a new wave of despair among Tyler Pipe's employees. Employees once afraid to speak with reporters eagerly sought them out. "What more will it take?" one manager asked as Mr. Garcia lay in critical condition.

Indeed, several Tyler Pipe employees, who asked not to be identified for fear of being fired, said safety shortcomings had played a role in the accident. They said Mr. Garcia had been struck by an inexperienced driver backing up in a poorly lighted area.

Mr. Page said that the lighting was adequate. "We do not know why Mr. Garcia was behind that truck," he wrote. "He had no work responsibilities in the area."

But Mr. Garcia's relatives say senior plant managers told them he was crushed as he hurried to hook the metal bin — known as an on-off bed — to the truck. "They thought what had happened was that he was trying to rush, trying to hook up the bed back to the truck and he was trying to rush back to his work station and didn't make it," his daughter said.

Mr. Garcia, the relatives said, had repeatedly complained of production pressures; he was being asked to handle more tasks, take more risks, they said.

"What does a life mean to them?" asked Eloise Soriano, a family friend. "How can the management or the owners go to sleep at night knowing that a family's dad is in a hospital fighting for his life? That's all the family has. How can they sleep at night?"