Concern about law firm hired by city to review DPW safety practices

Ignored for years.

Stancil McNair says he's been trying to bring attention to working conditions at Baltimore City DPW. Finally, people are listening, and there are calls for change . But McNair says, after his co-worker Ronald Silver II died from heat exhaustion while on the job last month, those changes are too little too late.

"Because we was bringing light to this before he even passed away. He was one of the people talking about how he didn’t like the conditions. Just imagine how we feel, talking to somebody every day who didn’t like the conditions, and now he's gone," McNair told WMAR-2 News' Elizabeth Worthington in an interview outside City Hall on Wednesday.

For the past several weeks, WMAR-2 News has been reporting on the conditions at DPW yards, after the Office of the Inspector General released two reports uncovering unsafe working conditions, mostly related to the heat. After Silver's death, focus on the issue by city leaders intensified.

Last week, the city hired a D.C. based law firm that specializes in workplace safety to conduct an independent review of DPW's safety practices. But Silver's family, through a letter written by their attorney Thiru Vignarajah to the Office of the Inspector General, and leaders in the union that represented Silver, are crying foul. Their concerns lie with the fact that the law firm, Conn Maciel Carey, typically represents employers who are trying to fight OSHA violations.

"The City's action seems geared toward inoculating itself from liability, manufacturing a narrative favorable to the City, and pretending to the public that it is taking action when, in fact, these basic diagnostic steps are long overdue and come too late for Mr. Silver," Vignarajah wrote in the letter.

"They brag on their website that they've re-negotatied terms to water down OSHA violations in cases where people were killed on the job," AFSCME Maryland Council 3 President Patrick Moran told WMAR-2 News. "I’m just shocked that the city wants to retain a firm like this when there are countless organizations out there that have a history of doing health and safety work."

Especially concerning to the family and union leaders, is the founding partner of the firm, Eric Conn's work to influence federal heat protections for workers.

OSHA just recently put out a set of unofficial proposed rules for employers to protect their workers from heat-related illness, including requiring access to cool drinking water and rest breaks when temperatures reach a certain level. Conversations and public comment surrounding the standard have been going on for years. In 2021, Conn started a coalition of national employers and trade associations, called the Employers Heat Rulemaking Coalition, which has been lobbying OSHA to make the rules more realistic for employers.

The coalition is concerned the new rules would amount to over-regulation, placing an undue burden on the employer. They suggest more flexible rules, tailored to local environments rather than a one-size-fits-all approach, arguing each industry, facility location, and even individual employee face different risk levels when it comes to heat.

For example, the OSHA proposed standard would require employers to provide workers a minimum 15-minute paid rest break at least every two hours. Conn and his coalition argue this should be tailored to the particular work operation in order to minimize the risk of other workplace safety issues, like injury:

“Otherwise, central work activities and operations could be impacted, resulting not only in production issues but safety concerns. For example, a requirement for a regimented break every two hours (under certain heat conditions) with no flexibility could result in lower manpower than necessary to safely conduct an operation, the loss of a critical co-worker with experience and operational knowledge at the exact “wrong” time to complete a job safely, etc. Self-paced breaks, where employees and supervisors work together to coordinate rest breaks based on a wholistic view of the job and the various potential hazards associated with these tasks is a safer and better approach to establishing rest break requirements," Conn wrote in a public comment submitted to OSHA last year.

But Moran says, "They are not looking, to make things, in our opinion, better for employees. They’re looking for ways to make things better for employers, in particular employers that want to evade the law and skirt the law."

For its part, the city says it hired Conn Maciel Carey solely to make recommendations, which will be shared publicly before the city makes any actual policy changes. A city spokesperson also stressed to WMAR-2 News that this is not to be conflated with the official investigation into Silver's death, which is being conducted by Maryland Occupational Safety and Health (MOSH).

On behalf of the family, attorney Vignarajah has asked the Office of the Inspector General to conduct its own investigation into the events that led to Silver's death. Inspector General Isabel Cumming could not comment on whether that investigation is happening, or will happen, but the investigation into conditions at DPW does continue.

Vignarajah writes in the letter to Cumming:

"The family is unable to stop the city from wasting taxpayer money, writing its own narrative, or airbrushing the horrific failures of city officials. But we can continue to fight for the truth. Therefore, the family respectfully asks your Office to conduct an independent investigation into the events that led to Mr. Silver’s death. Specifically, we ask that your investigation focus on what transpired on the day he died, whether the City’s failures were concerns that your Office had previously flagged, and what more could have been done to prevent this tragedy. It is vital that the findings of your investigation be reported to the public to ensure that the City takes all necessary steps to protect its workers in the future."

There's a hearing scheduled for tomorrow, Aug. 22 at 5 p.m. before the city council's Rules and Legislative Oversight Committee to discuss conditions at DPW.

Findings from Conn Maciel Carey's review are expected to be published by the end of September.

The city's full statement to WMAR-2 News is below:

"Conn Maciel has been retained to assess the City’s current policies and practices and then to help provide the City with a set of recommendations about heat safety that will be shared publicly before any decisions are made about implementation. This is not to be conflated with the official investigation into the tragic death of Mr. Silver. That critically important work is being done by MOSH, and the City is working with both MOSH and the Office of the Inspector General on their respective investigations into this matter.

Conn Maciel has niche technical expertise in heat illness and injury prevention and experience advising employers — like the City of Baltimore — on OSHA standards and industry best practices on this emerging policy issue. The firm’s team of experts, which includes an industrial hygienist and former National Labor Relations Board attorney with years of experience identifying and managing workplace hazards, gives them a unique perspective.

The City retains sole discretionary power to set and implement policy. The firm’s recommendations will be one part — and will be incorporated alongside discussions with and recommendations made by our partners in the union. In the end, all of this will then be presented publicly and discussed by all stakeholders before any policy determinations are made."