DOL Wins Argument that Federal Law Doesn’t Displace Stricter State and Local Safety Requirements

by Patricia Smith on December 22, 2011 · 27 comments

In 2008 a construction crane collapsed on the East side of Manhattan, killing seven people and injuring more than twenty.  The dead and injured included both construction workers and people with no connection to the building site.  Several nearby buildings were destroyed and eighteen had to be evacuated, leaving scores of people homeless. 

I lived in New York City then, and remember well the shock and sorrow that we all felt.  As a result of the accident, New York City revised its building code, adding new requirements for the use of construction cranes in order to provide its residents with protection from the possibility of a similar devastating accident.

At the same time, the Occupational Safety and Health Administration (OSHA) was in the process of updating its own requirements for construction cranes, to make sure that the construction workers operating those cranes and working around them were not endangered unnecessarily.  As required by law, OSHA’s process allowed comment from the public, and New York City submitted comments, asking that the new federal requirements would not preempt the city ones.  Preemption is a legal concept arising from the fact that federal laws generally take priority over state and local requirements, and in some cases may invalidate the state and local laws. 

In this case, however, OSHA explained in its 2010 standard for construction cranes that its standards do not generally preempt city building codes because those codes are intended to protect all of the inhabitants of a city, and do not impose requirements based on employment status.  OSHA standards, on the other hand, are intended only to protect employees.

Nonetheless, a trade association representing owners and operators of construction cranes in New York City filed a suit in federal court, asking the court to decide that the crane provisions of the New York City building code were preempted by the OSHA standard, and therefore invalid.  My office participated in that case, helping the court understand the purpose of OSHA standards, and the limited effect they have on other laws.  We explained that the OSHA crane standards had the single purpose of protecting construction workers and that allowing those standards to invalidate the broader city building code could have repercussions far beyond this case, for example, putting at risk municipal fire and electrical codes across the nation.

Yesterday, the court issued a decision agreeing with us.  The court’s decision gave special weight to our “persuasive” position.  The decision also explained why New York City’s rules are necessary to protect its residents.  It pointed out that in a city as densely built up as New York, construction crane accidents necessarily endanger members of the public.  It noted the large number of deaths and injuries that had been caused by crane accidents before the city adopted its new rules.  “If a crane falls in New York City, someone is almost always there to hear it – and be hit by it,” the judge said.

By upholding the New York City crane laws, this decision will save lives.  Shortly before the 2008 crane collapse a young woman from Florida came to Manhattan to celebrate St. Patrick’s Day with friends.  According to news reports, she was standing in the kitchen of her friend’s apartment when the crane collapsed.  Her body was pulled from the wreckage four days later.  This decision will prevent other people from suffering her fate.

M. Patricia Smith is the Solicitor of Labor.

{ 27 comments… read them below or add one }

1 Gregg December 22, 2011 at 5:35 pm

Whaoo wait a minute OSHA,You guy’s were given complete indisputible company documentation of how my employer knowingly sent into a Sunoco refinery a five ton JLG Scissor lift that i just locked unsafe with a major steering problem and OSHA did nothing to this employer! I’m 49 years old and have worked on this equipment for over 30 years and i gave OSHA complete indisputible company documentation they knowingly commited this act and OSHA let them walk away! If i was responsible for commiting that act and there was an accident i would have gone to prision! How much evidence does OSHA need for i gave every piece to the point that there was no more possible evidence that could have been given! What about the operator that was killed just six weeks after i blew the whistle in philadelphia on the same make JLG lift that even JLG has a service bullitin out on this problem that involves the steering like the one that i locked out unsafe? My head is spinning right now that OSHA has the nerve to post a story like this,You people have got to be kidding me! With all that indisputible company documentation the three of us DOL/OSHA 11(c) whistleblowers provided to OSHA about how this employer was sending out on rent knowingly unsafe and OSHA did nothing! What is going on here !! This is just the tip of what we provided OSHA and this has cost three of us our jobs now for doing the right thing by blowing the whistle on safety.Why has OSHA not protected us?
What is going on here Ms Solis? You need to do something Ms Solis!

2 Gregg December 22, 2011 at 6:13 pm

Ms Solis i’m going to post on social media my case with my name and address about our whistleblower case for any one who was injured on this employer’s equipment so they can recive justice so they can contact me for the indisputible company documentation that proves what was going on.This evidence is a prosecuters or attorney’s dream. It’s obvious DOL/OSHA was on the reciveing end of deep pockets in our whistleblower case where your own 11(c) investigators made statements to this fact. Lets not forget about the accidents that involved this employers machines that i know about Ms Solis and one i even witnessed and was clear neglegence on this employer for i trouble shot the problem!

3 Gregg December 23, 2011 at 11:06 am

Another point on that five ton JLG scissor lift that my employer knowingly sent out on rent unsafe, If i had missed that steering problem while i was conducting a safety inspection on it i would have been fired for it where it would have been justified.
I have been on costruction sites and seen where workers have incorrectley use these lifts as cranes hoisting up material so now you have a steering problem on top of that.
What about the time line of 14 calls to JLG tech support that i made after this incident and given to OSHA where i was told everytime no it can not go out on rent like that!
Even the head of JLG is on this time line and stated “JLG doesent put of service bullitins if were not having a problem,JLG stated that the truck driver loading it was in danger! What do you think OSHA? Who’s telling the truth here? You accepted from this employer that it was safe for rent and never took into account all the evidene us three whistleblowers provided! How does OSHA deny a picture of the lockout tag on this lift with my employee i.d number,date,and problem written on it? OSHA you even sent me a copy of the picture! We had to go through management before we locked out any machine. I even worked with management on this steering problem where i called JLG with the manager of this branch and JLG faxed over the service bullitin with upgrade kit and was told by JLG that lift can not go on rent like that!
Do you think us three whistleblowers can get some justice here DOL?
N.Y I’m glad you have your own crane safety rules.

4 Gregg December 23, 2011 at 11:24 am

What about all the years of evidence that i provided OSHA of the unsafe fork lifts that this employer was knowingly renting unsafe to the public at the Pennsylvania conventition center?
What about the time lines of how i went through chain of command warning them of what i was uncovering at the conventition center?
What about the time line of the conventition center fork lifts in my log book that show the level of neglect?
What about the company emails i provided OSHA that show how unsafe the fork lifts were at the conventition center?
What about the code of Q.T.A in my log books and provided to OSHA that stands for “quick turn around” where this is not the correct or safe way of inspecting machines,i witnessed some mechanics inspect lifts right on the truck trailers and not even pulled off for proper inspection.Q.T.A was incorperated by management and only written on internal documents to protect the mechanic if there was an accident.
Can OSHA tell me how they deny this evidence?

5 Yanislav Iliev December 26, 2011 at 5:11 pm

I agree with you. Congratulations, Patricia Smith.

6 Gregg December 27, 2011 at 12:28 pm

Ms Solis i’m also a union member of the union that covers these crane operator’s.
Don’t you think it makes sence to have strong whistleblower protection so these crane operators’s feel protected if they speak up? Having someone on the inside who knows whats going on is common sence Ms Solis,so why are you not protecting whistleblowers?
Let me remind you of what my employer did right after i contacted OSHA.
I was pulled into the company confrence room by two company managers and before i could even sit down they threw a three day suspension at me and one stated “Because your the one who contacted OSHA were giving you a three day suspenion ” My response ” Where is (shop stewards name)? manager’s reply ” He’s in the refinery ,if you have a problem with it call the f@#king union ”
Ms Solis i called the east coast reginal manager for this union and told him of what happened in that confrence room and i asked him should i have been given union representation and his reply was “YES” and they also violated your wingarten rights Ms Solis. What do you think Ms Solis is there some corruption going on here with no action by DOL?

7 Gregg December 27, 2011 at 12:49 pm

The union i belong to is ” union of operating engineers” Ms Solis so why did’nt you ask them about that confrence room incident while DOL was in contact with them?

I also provided OSHA that timelined call to the east coast manager for operating engineers .

I hope those crane operators in NY know to keep there mouth shut and not lose there careers like i did with DOL/OSHA whistleblower protection program that has no teeth.

8 Gregg December 27, 2011 at 2:19 pm

Here’s another time lined incident that i provided OSHA,
When work was slow for the equipment painter at the company’s branch where i worked he would come up and ask if i needed help out of boredom. I would always get management permission before allowing him to assist me.This painter was no mechanic by any means but would always assist me where i would show him what needs to be done on the forklifts from the Pennsylvania conventition center.
This painter was shocked at the condition of these forklifts where on several forklifts he was just changing the engine oil and thought he pulled out the wrong drain plug for the engine oil came out like syrup not to mention all the other comments that he stated that were given to OSHA. This painter had to charge time to these forklifts and this was also provided to OSHA.This painter was also a member of union of operating engineers.

9 Gregg December 28, 2011 at 12:54 pm

What about this Ms Solis where one of the reasons for termination by my former employer was that i did not write any existing or pending problems on the check for rent document. The fact is Ms Solis no mechanics were to write any existing or pending problems or work performed on the check for rent document and that is company policy.This was given to your OSHA investigator who understood that and could see that it was clear retaliation for whistleblowing and he wanted to conduct further intrviews with me due to the amount of evidence i had.Why did those interviews never take place Ms Solis? Did my former employer have deep pockets or make political contributions?
What about the white sheet that we wrote on in reguards to what was done to or pending problems with the machines that were going out on rent? This white sheet was a single piece of paper that was ment for management eyes only and the customer never received or viewed, sounds like a second set of books Ms Solis like your friends over at Massey energy kept about safety issuies,Remember them Ms Solis they owned that upper branch mine that killed 29 men.They were all about safety just like my former employer Ms Solis.
When i first started at this employer i wrote on the check for rent document what i performed and pending issuies when a branch manager took them and tore them up and had me rewrite them with no mention of what i did or pending problems.
At every other company like this we always wrote what was done and what was pending.What do you think about that Ms Solis???

10 Gregg December 28, 2011 at 4:11 pm

Ms Solis i know you met with the surviving family members of that massey/upper branch mine disaster and told them that you would use all existing powers to get to the bottom of what happened,but what about the 11 deepwater horizion oil rig workers that died? Did you meet with there family members? Would you tell there surviving family members about your new “Seaman Protection Act”? Would you tell them about the OSHA investigator in my whistleblower case that he got the first case in the United States under this Seaman Protection act and how this OSHA investigator stated to me how much of a joke it is? He even told me what kind of a case it was Ms Solis.
Remember what one Deepwater horizion survivor stated on CNN about BP,
“You could call time out for safety,they would’nt fire you for it, but they would find another way to fire you for it”
This was in front of four other survivors and they all agreed, What do you think Ms Solis?

11 Gregg December 29, 2011 at 12:46 pm

Ms Solis here is more facts ,
After i blew the whistle on the unsafe forklifts at the Pennsylvania conventition center the only receptionist at the branch was told to pull the records on the forklifts at the Pennsylvania conventition center. She told me that management stated to her she was not to talk to me about this.
What do you think Ms Solis,the company stated in writeing to OSHA they did’nt know i was the one who contacted OSHA.
She gave this info to OSHA Ms Solis.

12 Gregg December 29, 2011 at 3:50 pm

,Ms Solis why don’t you send over a copy of my whistleblower case to the defense in the deeepwater horizion disaster? The DOJ filed criminal charges i heard today in response to that diaster so i figure the defense could see and use how my former was allowed to walk away after risking that disaster in that refinery with the unsafe machine that my employer knowingly sent in there unsafe with complete indisputible company documentation they knowingly commited this act given to OSHA.Remember what the manufacturer of those machines said Ms Solis in reguards to them being in that rfinery? They stated” The truck driver loading them was in danger let alone be sent into a refinery” How do you argue with that Ms Solis?
You have my permission to send them a copy Ms Solis.
Why should they face charges and not my former employer?
Ms Solis if i missed those problems with those machines i would have been fired,but if i had sent them out knowingly in that condition and there was an accident i would have seen prison time and would have been completely justified!

13 Gregg December 30, 2011 at 1:34 pm

Ms Solis let me explain what this e-mail above shows from a mechanics stand pont,

It states,we are repacking dry wheel bearings witch means there in no grease in them where this shows how long these lifts were neglected and pencil-whipped maintenence.
I have been on service call where wheels have fallen off while the forklifts were in operation due to no grease in the bearings.These wheels are suppose to be pulled off annualy and inspected.This employer had a lift for forklifts just like in automotive repair shops so there was no reason for this neglegence.
Do you think that’s safe Ms Solis?

It states that we are changing oil filters that are five years old,This was easy to see for on forklifts when serviceing you write the current date and current hour meter reading on the new filters.These are supposed to be changed annualy regardless of hours on machine.Again this clearly shows pencil-whipping of maintanence and repairs.

It states that the engine oil in some was like syrup, Engine oil in a propane powered forklift will last hundreds of operating hours and still will remail clean for propane is a cleaner burning fuel than gasoline. It would take thousands of operating hours to get the oil to look like syrup,Rule of thumb is that you service the engine every two hundred hours for each hour of operation equals 33 miles so do the math Ms Solis.Would you change the oil in your car every 50,000 miles of course not. Also with the oil this thick from not being serviced properly and this will cause the engine to stall for they are equipped with low oil pressure switches to shut engine down for no oil pressure.
Try steering a car when the engine stalls for its even harder on forlifts.
Do you think thats’s safe Ms Solis?

It states that one of the radiators was so clogged weighed twice as much as it’s suppose to,Forklifts are supposed to be blown out with compressed air before each shift of operation.If you do not it will cause over heating and foul out the propane fuel systems causing the engine to stall. I seen this first hand at the conventition center where a yale forklift stalled out due to fouled out fuel regulator that caused it to strike a support coloum.If anyone was standing behind it when that happened they would have been killed instantley.The raditor was packed with paper and debris and could see it was like that for a long time.
Do you think that’s safe Ms Solis?

As it states in the e-mail that we were to repair and return back to the pennsylvania conventition center these forklifts in one week time witch was a complete joke to accomplish after they were neglected and pencil-whipped for years.
They were so bad that when they came in in batches we would take parts off the other ones to get atleast one of the better ones back up to operation and then order the parts for the rest.This was the case with every forklift that came out of there.
There was absolutely no reason for these forklifts to get to this level for they had ample down time between shows and conventitions.
I even provided a time line to OSHA of the truck drivers that had to pick up these forklifts at the conventition center.They would have to chain them togrther in a strait line then pull them up with the truck wintch for there were no working emergency brakes working onb them.Fork lifts do not have a park position on the transmission like cars only emergency brake to secure it.
What do you think Ms Solis? Who is telling the truth here ?

14 Gregg January 2, 2012 at 11:28 am

With everything i have posted on this DOL blog so far Ms Solis can you tell me there is no Merit in our case?
How about you Dr Michaels do you see Merit in our case?

What about you pat shui?

There is more documentation to come!

How about anyone out there reading my comments do you think there is merit in our case?

Just remember it could be you or a family member killed on one of these unsafe machines that we exposed and provided this indisputible company documentation to DOL!
To think DOL accepted from this employer stating they did’nt know i called OSHA.

15 Gregg January 3, 2012 at 10:26 am

It also states in that e mail that he has the list of repairs here,There was too many repairs for him to list in that e mail Ms Solis.This was the condition every forklift that came out of the Pennsylvania conventition center. When you have one problem with your car Ms Solis don’t you have it repaired right away ,not wait untill you have numerous mechanical issuies?

16 Gregg January 3, 2012 at 2:29 pm

What about the time line i gave to OSHA of how i was confronted by management that the times i was charging on machines was too long just after i contacted OSHA?
I never had a problem before this and had a great record(documentation given to OSHA) Ms Soli.
I gave OSHA a time line of how a coworker overheard this conversation in the shop and stated to me in response “Gregg i can’t believe nothing was said to me ,I’m the slowest one in here” I provided OSHA where we were even standing when this took place!
Well Ms Solis any merit yet?………..Dr Michaels?………………OIG…?Any one at DOL?

17 Gregg January 3, 2012 at 2:40 pm

What about the time line given to OSHA of the branch manager that had to go up to the Pennsylvania conventition center after i contacted OSHA and conduct the investigation with other company management with no representation from OSHA on this sene?
This one manager is the one who sent that e mail and when i came in the next morning after he had to go up for the investigation at the Pennsylvania conventition center pulled me aside out in the company’s yard while i was working on a fourty foot boom lift with a coworker who witnessed it and stated ” Gregg you made the right call, We found a hell of alot more up there then what we told OSHA,They know they have a problem up there “”
Can anyone see merit in this case? A’m i missing something here Ms Solis??????

18 Gregg January 4, 2012 at 12:46 pm

How about this Ms Solis? Remember how i informed DOL/OSHA about the fellow coworker who had taken pictures with his camera phone of two other coworkers stealing gasoline from the company’s fuel pump located in the center of the company’s yard where we park equipment? They were pumping it into there personal vehicles. The worker who took the pictures forwarded them to corparate headquarters and the next morning the vise president was there at the shop and had both in for questioning.Guess what Ms Solis they were left off the hook! See Ms Solis the one worker who was pumping the gas was our union shop steward and that’s where the problem lies for the union shop steward is close friends with the owner of the company and they regulary attend sporting events together. That’s why they were left off the hook Ms Solis.
Let me explain why the coworker took the pictures in the first place Ms Solis, BECAUSE HE KNEW THEY WERE STEALING AND WE ALL KNEW THEY WERE STEALING!!!!!! THATS WHY THE VISE PRESIDENT SHOWED UP THE NEXT MORNING!!!!! You brag Ms Solis about how your father was a union shop steward,well ask your father if he stole from the battery company he worked at if he would have kept his job Ms Solis??
This company claimed in writing my honesty and integrity were in doubt,so you tell me Ms Solis who’s honesty and integrity are in doubt???????
By the way Ms Solis i’m still friends with the coworker who took the pictures and he now lives in florida but i can give you his phone number if you want,not that i expect you to respond to our plight with your 11(c) employer protection program.

19 Gregg January 4, 2012 at 8:20 pm

How about this time line i provided DOL/OSHA Ms Solis,
We had a coworker who was a friend of the branch manager and was brought on board by this branch who had just conducted a safety inspection on a Genie 4390 scissor lift that was going right out on rent. This is a very large scissor lift that will raise up to 40 feet where you can operate it and drive it from up at that level. When the truck driver who was loading it to be delivered in the company yard found that the drive motors were leaking oil all over the tires and all over the truck trailer.This was a serious safety issue, for these are solid rubber tires so imagine Ms Solis if you pour oil all over the tires on your car and try and drive it or try to stop it for that matter.
This mechanic recived no disiplinary action Ms Solis,There were three of us on that truck trailer looking at this lift including me. Again Ms Solis this incident with date,time,machine,mechanic’s name is in my time lines given to OSHA!!! .If any of us shop mechanics had missed that problem we would have seen time off Ms Solis!!! There was no reason for this mechanic to have missed that obvious
problem! What do you think Ms Solis? Any merit yet? Do you see a pattern yet Ms Solis? Retaliation for protected activity maybe ??????????????????????????????

20 Gregg January 4, 2012 at 8:38 pm

Ms Solis,from the beginning of how DOL/OSHA handled my whistleblower case i thought that maybe someone wrote “Je#k off “across my back?
So every morning from the start of this DOL disaster i would ask my wife if she see’s it on my back and her response “nope”.
So could you Ms Solis or the gang at DOL tell me where this is written on my back?

More documentation to come,thanks comment awaiting moderation department

21 RosariaGFlores January 5, 2012 at 7:21 am

I really appreciate your post and you explain each and every point very well.Thanks for sharing this information. And I’ll love to read your next post, too.

22 Gregg January 6, 2012 at 10:33 am

Here is another e mail Ms Solis,but let me explain what led up to it.
I was asked by the branch manager to pick out five of the better forklifts that came out of the Pennsylvania conventition center.They were needed up at the company’s so. plainfield,NJ branch to go out on rent from there. I did as instructed and got them ready to be shipped. Shortly after they were shipped the branch manager at our shop came over to me and handed me this e mail and stated,
“Do you believe this gregg (so. plainfield,nj,branch manager’s name) is sending back those forklifts,he said he doese’nt have time to rebuild those pieces of sh#t”
The so. plainfied branch operates just like the branch i worked at,so now you see what i was up against Ms Solis?
This is what is stated on the e mail
(1) forklift transmission leaking oil into the rear.
The next four all have brake problems,cables freezing and brakes not working.
Then he listed the company identification numbers for all five forklifts.
These five forklifts were the cream of the crop Ms Solis!
These five had multible problems. I provided a time line of how i requsted not to have to work on these forklifts. Even the shop foreman requested to management that i be pulled off the forklifts where i told him i had already did this but he tried any way,he was told no gregg is our forklift guy.
The pennsylvania conventition center recived millions of tax payer dollars and millions of dollars under the reinvestiment act.So the way i see this is it’s fraud for not providing safe quipment that us tax payers are paying for. What do yo think Ms Solis?
Any merit yet?
By the way Ms Solis i was asked to go up to the So.Plainfield branch to assist them for a week and was put up in a nice hotel there.So i knew that branch manager and how they operated.This was two years before this forklift incident above Ms Solis.

23 Gregg January 6, 2012 at 10:44 am

Ms Solis i have a suggestion for a slogan for the 11(c) employer protection program,tell me what you think? I’m sure you heard of the slogan ,
( GOT MILK ? )
The one you could use for OSHA 11(c) employer protection program
You gotta love it Ms Solis,
More documentation to come,

24 Gregg January 6, 2012 at 4:54 pm

What about the evidence that the second coworker who came forward in this whistleblower case? Remember Ms Solis? He provided the safety inspection stickers that he removed from the machines at the new IRS building that showed how far out of date they were for safety inspections.These stickers are applied to the machines by my former employer and show the dates of safety inspections and when they are do for reinspection. These machines were on the IRS construction site in Philadelphia by 30th st station. As a matter of fact your own OSHA 11(c) investigator showed them to me.This part i don’t understand is how this investigator took them from the coworker and yet OSHA accepted that laim excuse from my employer that i took home one used brake shoe that was evidence from the Pennsylvania conventition center and was tossed in the trash? See anything wrong here Ms Solis? Is there a double standard? That coworker even took pictures of the inspection stickers while they were still on the machines. This IRS construction site is paid for by tax payer money,right Ms Solis?
Can you tell me Ms Solis if any funds from the “American recovery and Reinvestment act ” were used on this site? If so would that be considered fraud by my former employer for not providing safe equipment by contract?
Just remember this Ms Solis that this employer went out and recruited this coworker that supplied those company inspection stickers then was fired two months after coming forward. What do you think Ms Solis?


25 Gregg January 7, 2012 at 6:57 pm

Ms Solis when that second whistleblower from my former employer confronted a manager about those machines at the IRS site and that they were not OSHA complient with the safety inspections,this manager pulled him aside and stated,
“I think of you as a friend, You don’t want to go there look what happened to Gregg”.
This manager who said this has over twenty years with the company.When he told me this Ms Solis he was under the impression that my case was close with OSHA at that time and believe me i did’nt tell him and i let him keep on talking.
15 months had passed since i last talked to him from when i was illegaly fired for protected activity. What made him call out of the clear blue like that,
What do you think Ms Solis?


26 Gregg January 9, 2012 at 5:16 pm

Sorry about some of my spelling for when i’m typing i have a 6 year old son and an 8year old daughter running around my desk.

27 OSHA Standards and Requirements January 12, 2012 at 5:35 pm

A new website ( listing all OSHA training requirements for construction (including cranes) and general industry just came out this month (01/12), is a wonderful resource to access information about mandatory OSHA training.

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