Masonry Magazine January 1980 Page. 12
CRIMINAL PROSECUTION
continued from page 11
Many, if not all, managerial and supervisory employees of construction companies (including owners) might face criminal prosecution, given the factors listed above. When facing OSHA personnel investigating a fatality, what rights does the individual have?
Individual Defense
The foundation of our individual rights in a criminal proceeding is the Fifth Amendment to the Constitution, which protects us against self-incrimination. However, the application of this right during interrogation by OSHA (and other governmental regulatory agencies) is very complex.
The first question one might ask is "are Miranda" warnings against self-incrimination required?" This question was ruled upon in Pinkston-Hollar, in which Pinkston immediately reported the fatality to the nearest OSHA office. The investigation began the following day, with the investigator talking to fellow employees of the deceased and with Pinkston.
When criminal charges were filed against Pinkston and the corporation, both parties attempted to raise the issue of self-incrimination, as they had attempted to cooperate with the OSHA compliance officer, and had not been issued a "Miranda" warning.
The court held that a corporation has no right against self-incrimination, and held that three disclosures by Pinkston were made prior to initiation of any criminal proceedings, stating that the Miranda warning"... is required ipso facto only when the suspect has been taken into the Government's custody or is otherwise deprived of his freedom by the Government."
An additional case, Secretary of Labor v. Capitol Dock and Dredge Corporation," involved the question of protection against self-incrimination. OSHA cited the employer for an alleged willful violation (civil) and several alleged non-serious violations, proposing penalties of $10,000 and $1,050, respectively. When called to give a deposition, the vice president of Capitol, upon legal advice, refused to give a deposition unless given assurances that he and Capitol would be granted immunity from criminal prosecution. The Administrative Law Judge (ALJ) decided in favor of OSHA and assessed the proposed penalties, but the Review Commission set aside the decision and remanded the case for further proceedings. Ultimately, the case settled out of court, with the willful citation and penalty reduced."
Conclusions
One cannot safely conclude that the criminal sanctions in the Act are a "paper tiger," although juries may continue to feel that no OSHA violation is worth a jail term or heavy criminal fine. Employers may wish to consult with an attorney prior to meeting OSHA personnel investigating a fatality.
Since it seems probable that OSHA investigators will continue not to advise either the corporation or an individual that possible criminal action seems warranted, and since this question has been decided in favor of both OSHA and the Internal Revenue Service, this makes it more imperative that each construction firm obtain advice from legal counsel.
About the Author
James T. Patterson is a loss control consultant for The Talbert Corporation, Denver, Colo., a surety bonding and insurance agency specializing in construction contractors. Prior to joining Talbert, he held a similar position with The Travelers Insurance Co. Mr. Patterson is active in the American Society of Safety Engineers and is a member of the Society of Explosives Engineers. He is a Certified Safety Professional and is registered as a Safety Engineer in California.
References
1. OSHA announced recently (August and September, 1979) that it is referring five cases to the Justice Department for review of possible criminal prosecution. The cases involved: a) trench cave-ins in Georgia, Washington, D.C., and Ohio; b) the electrocution of a construction worker in New Mexico: and c) a crane-hoisted load falling on two workers in Alabama.
2. No. 72-D-239 (D. Neb., Feb. 21, 1974).
3. 7. OSHC 1510 and 510 F 2d 78 (10th Circuit Court of Appeals. Jan. 29, 1975).
4. 4 OSHC 1967 (No. 76-33-CR-6. D. Kan. Oct. 12. 1976).
5. No. CR-74-1832-F (S.D., Calif., Feb. 24, 1975).
6. Miranda v. Arizona, 384 U.S. 436: 161.Ed. 2d 694: 86 S. C. 1602 (1966).
7. Campbell Painting Corp. v. Reid, 392 U.S. 286, 201.Ed. 2d 1904, 88 S. C. 1978 (1968).
8. This ruling follows that of the Supreme Court in the case of Beckwith v. United States, 425 U.S. 341, 481. Ed. 2d 1. 96 S. Ct. 1612 (1976), in which Internal Revenue Service agents interrogated Beckwith without Miranda-type warnings. The Supreme Court ruled that warnings against self-incrimination are required only when there has been a detention and "focus" on the one being interrogated about possible tax fraud. Attorneys commenting on this matter feel that courts will presumably follow the Beckwith rule in OSHA cases.
9. 1 OSHC 1066.
10. Personal communication with ALJ Sidney J. Goldstein. Dec. 26, 1978,