State disputes federal claims that IOSHA wrongly dropped fines related to Amazon worker’s death

Correction: An earlier version of this story incorrectly said the federal Occupational Safety and Health Administration concluded that Indiana OSHA Director Julie Alexander inappropriately “coached” Amazon on how to prove employee misconduct and get the complaint dismissed. OSHA did not find evidence that the conversation was a premeditated effort to help the company. We apologize for the error.

The Indiana Occupational Safety and Health Administration is disputing a federal report that found the state agency should not have dismissed safety violations related to an Amazon employee’s death in 2017.

A story published last year by Reveal, which is part of the not-for-profit Center for Investigative Reporting, said that IOSHA absolved the online retail giant of any accountability in a maintenance worker’s death at the same time the state was bidding for Amazon’s coveted HQ2 project.

In September 2017, 59-year-old Phillip Lee Terry died on the job at an Amazon warehouse in Plainfield after a 1,200-pound piece of equipment dropped and crushed him.

IOSHA investigated the death, and safety inspector John Stallone issued four safety citations for a total fine of $28,000.

Amazon appealed the citations, arguing the death was a result of employee misconduct, and IOSHA dropped the fines.

Stallone alleged that top state officials, including IOSHA Director Julie Alexander, Indiana Labor Commissioner Rick Ruble and Gov. Eric Holcomb dismissed the charges because of the state’s desire to win the HQ2 project.

Stallone shared with Reveal audio recordings from a phone call between Amazon officials and Alexander in which she can be heard giving advice to the company about how to get the fines removed.

Stallone, who is no longer working for the state, also alleged that he was called into a meeting with Ruble and Holcomb, and they brought up the Amazon deal and said it would mean a lot to the state to land the headquarters.

Holcomb has repeatedly denied that meeting ever happened and even took the unusual step of issuing cease-and-desist letters to Reveal and IndyStar, which published a portion of the Reveal article. Holcomb has also maintained that IOSHA handled the case correctly.

Federal OSHA disagreed, though, saying the conversation between Alexander and Amazon officials was “unnecessary and premature,” and that Amazon did not prove all of the criteria to establish employee misconduct occurred in the case.

The report from the federal agency was in response to a complaint from Stallone about how IOSHA handled the Amazon employee death investigation.

The federal agency did not conclude that Alexander inappropriately “coached” Amazon on how to prove employee misconduct and get the complaint dismissed, and it did not find evidence that the conversation was a premeditated effort to help the company.

In a nine-page response sent June 9, Indiana Department of Labor Commissioner Rick Ruble says Alexander is allowed to—at any time in the process—discuss the defenses companies can use to have complaints dismissed. The letter says the elements of the specific defense used in this case—unpreventable employee misconduct—”are often brought up and discussed between IOSHA and employers at any time from the opening of an inspection to settlement discussions of contested citations, and at any time in between.”

“The director believed that the experienced OSHA attorneys for Amazon were planning to assert the UEM defense and was merely acknowledging that the defense, along with other settlement options, was typically considered during negotiations in the informal conference process and during the contest period,” the letter says.

The federal agency also determined that several of the safety violations initially issued against Amazon should not have been dismissed.

Federal OSHA said Amazon did provide IOSHA with enough proof that Terry had been properly trained and that there were methods in place to discover when an employee wasn’t following that training. But Amazon did not provide proof that a specific hazardous energy-control procedure had been established, and the company did not offer enough evidence to show that it was disciplining employees when they didn’t follow the safety protocols.

The state agency disagreed with federal OSHA’s assertion that several of the safety violations should not have been dismissed.

The letter says that Alexander and the attorney in charge of the case for the Department of Labor  “found that there was insufficient evidence to uphold the citations and IOSHA was legally obligated to dismiss them.”

IOSHA goes on to say that the hazardous energy-control procedure that the federal agency claims should have been provided by Amazon would have gone “beyond the scope of the actual issue cited and assume facts that were not even contemplated or included in the inspection file by the compliance officer.”

The state agency also argues that Amazon did provide enough evidence that it had a policy in place to discipline employees who didn’t follow safety protocols. The letter from the federal agency took issue with the fact that the evidence offered by Amazon was 25 examples of when employees were reprimanded for safety violations, but none of those examples were from the Plainfield facility.

IOSHA says that “could simply be because Hoosier workers at Amazon facilities are more careful to follow” the safety procedures, and argues that federal OSHA “offers no proof to support this assumption” that employees in Plainfield aren’t being disciplined when safety protocols aren’t followed.

Federal OSHA had also addressed several other unrelated complaints Stallone made about how IOSHA investigated other workplace situations.

In one instance, the federal agency determined that an investigation wasn’t thoroughly documented by IOSHA so it was unclear whether the complaint was properly investigated. But in its response, the state agency refuted that claim, saying the complaint was investigated to the “fullest potential under the circumstances and all of this is documented in the inspection file.”

The end of the letter from the state agency criticizes the federal agency for how it notified the state of its findings.

“Prior to the request made by the media source, the Department had no knowledge that Federal OSHA had completed and released its report,” the letter says.

The state agency says it had to request the letter be sent by email from federal OSHA, which had sent it in the mail.

“As nearly all staff of the IDOL are working remotely due to the Coronavirus pandemic, a fact of which Federal OSHA is quite aware, the expectation that a mailed document would be processed in a timely manner is poorly conceived when so many other forms of electronic communication were available,” the letter from IOSHA says.

It’s unclear what happens next. A spokesperson for IOSHA said there is no established timeline or protocol for next steps and referred to the federal agency.

A spokesperson for federal OSHA did not respond to IBJ’s request for comment.

On Friday morning, Holcomb announced that Ruble was resigning after 23 years in public service, but did not provide a reason for Ruble’s decision to leave the job.

During a press conference Friday afternoon, Holcomb said Ruble’s departure was not related to the Amazon case.

Ruble’s last day will be July 24.

Holcomb said in a statement that over three administrations, Ruble “has devoted every day to advance the safety, health and prosperity of Hoosiers in the workplace including achieving substantial reductions in workplace injuries and illnesses.”