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[whitespace] Don Higgins, Ken Dutton
Defenseless: Don Higgins (left) and Ken Dutton say their union has abandoned them in the fight to protect their health.

Toxic Overload

Two construction workers say they were exposed to hazardous materials while building the downtown library

By Najeeb Hasan

JUST TWO YEARS ago, Ken Dutton had the strength of several men. At the gym, he bench-pressed six plates on the bar--more than 300 pounds--just to break a sweat. He played safety for Saratoga High School, surfed, snowboarded, ran track at De Anza, put himself through college at Sonoma State, even put the bottle on the shelf in 1997.

Two short years ago, he was at the peak of conditioning--disciplined in his diet, disciplined in his exercise regimen. And disciplined in his work. He learned to rely on himself early on--his father couldn't be counted on, so Ken obtained a work permit at 15 and has been employed ever since--enrolling himself into a pipe fitters apprenticeship through United Association Local 393.

Now look at him--barely able to bench-press two plates. At 34, he has the lung capacity of a 45-year-old. He has no job, no money, no girlfriends. After five years, the bottle's back off the shelf. "I got depressed," says Dutton, whose deep-set eyes are slow to focus. "I started drinking again. I thought maybe I might have a slim chance of meeting somebody in a bar. So I get drunk, go to a bar, take a cab home or something like that." He grimaces. "Sometimes, I'll spend all my money in a bar, all my disability money."

It's evident--for Ken, at least--that his job installing 12-inch pipe in the basement of one of downtown's marquee buildings, the Martin Luther King Jr. Library, was much more unhealthy than it should have been. It was a job that Ted McIntosh, a pipe fitter in the South Bay for more than three decades before he retired to Lake Berryessa, described as "the worst conditions I've ever worked under in 35 years."

The library contractor, Colorado-based Hensel Phelps, has worked on a number of buildings in the western United States, including convention centers in Santa Clara, Anaheim, and San Jose. Hensel Phelps was a defendant in a $6 million lawsuit involving two Sacramento construction workers who fell to their deaths after a construction elevator malfunctioned, and five Hensel Phelps subcontractors were cited two years ago at the Fort Worth airport for life-threatening violations.

Although the state Occupational Safety and Health Administration visited the library, neither Hensel Phelps nor J.W. McClenahan, a regional plumbing contractor, was cited for conditions at the site. Dutton and co-worker Don Higgins, who ended up in worse shape than Ken, are still unable to work two years after leaving the construction business. Their diagnosis, according to Dan Castro, associate professor of surgery at UCLA School of Medicine: post-environmental toxic exposure, which can lead to sicknesses ranging from chronic vomiting to cancer to heart disease.

Carbon Monoxide

Dutton and Higgins got the call to work at the MLK in January 2002. Early on, both men, as well as others on their crew, knew the conditions were unsatisfactory. Don, an avid surfer, took a vacation to Hawaii just 10 days into the job. Immediately, he noticed improved breathing.

The accounts of the two pipe fitters, their co-workers, court records and other documents allege that the basement of the library contained several safety hazards. The most severe allegation was the use of a forklift and a saw that cut cast-iron pipe, which spewed harmful carbon monoxide vapors and other toxins into the air, including lead, zinc, sulfur and arsenic. The basement's windows were boarded up with plywood, say the pipe fitters, and sealed from the outside with mounds of gravel. The only outside source of air was 400 feet from the work site. Both tools are illegal to operate indoors without ventilation. According to Dutton and Higgins' legal team, the tools were the most probable cause of their ailments.

After a series of unheeded complaints to Bob Hermesky, a J.W. McClenahan supervisor, and Frank Merritt, Hensel Phelps' work-site safety director, the crew began to realize the contractors were blowing them off. "When the so-called shit hit the fan, they moved me out of the basement," McIntosh says. "They separated me from the crew ... when Don and Ken started having problems. It hit the fan with Don. They were going to fire Don. They just separated us because I was siding with the guys in the basement. They made a statement at the safety meeting that if anybody said anything, they'd get their check."

Indeed, Higgins, who threatened to file a complaint with the state's Occupational Safety and Health Administration about the working conditions at the library, was handed a layoff check almost three months into the job. Dutton, who says his hand turned purple because of the lack of oxygen, lasted 10 days longer. His health forced him to quit on April 2. Both men, along with Mike Dickey, another member of their seven-member crew who complained of symptoms, were referred to U.S. Health Works, a clinic retained by Hensel Phelps. U.S. Health Works, in turn, lost Higgins and Dutton's blood samples, which effectively nullified their assertions that they suffered carbon monoxide poisoning. The gas has such a quick half-life, it must be tested immediately.

Five days after Higgins was fired, Cal-OSHA sent a two-person team to inspect the library's basement. The team concluded that air-monitoring systems measured no remarkable levels of carbon monoxide or other toxins in the basement. "The basement is not considered a confined space as defined in the regulations," an investigator wrote. "There were several large openings above the employees, which does not make this a confined space. ... At the time of the inspection, there was no work being done with an abrasive saw in the basement."

By rule, inspections are supposed to be conducted without an employer's prior knowledge. Pipe fitters claim the work site was sanitized before Cal-OSHA inspectors made the rounds. The gas-powered equipment was removed so the inspectors would not see it. Higgins and Dutton have photographs placing the saw in the basement, contradicting Hermesky's statements and poking holes in Cal-OSHA's conclusions. The pipe fitters say contractors not only removed the incriminating equipment but also pried the plywood off the windows and carted away gravel so the inspectors would see a basement that had adequate ventilation. Darrel Roloff, a Cal-OSHA compliance engineer, admits that carbon monoxide and other toxin levels would dissipate five days after a gas-powered motor was used.

And an obvious contradiction appears in the scribbled interview notes of the investigators: Hermesky told investigators the oil-and-gas-powered saw was located on the eighth floor, not in the basement, and had not been used for "several" months. But according to the investigator's report, pipe fitter Bruce Treadway says he used the saw "last Thurs." This contradiction was not included in Cal-OSHA's response to Higgins and Dutton's complaint.

Stephen Lyons, J.W. McClenahan's labor consultant, agrees with Cal-OSHA's conclusion about the lack of gasoline-powered equipment in the basement. He says, in a letter to Local 393 business agent Tom Alexander, "In order to provide a secure and safe working environment, J.W. McClenahan Co. does not and will not use gas-operated equipment in areas determined ... to be unsafe."

Alexander, in his own investigation, came up with a conclusion contrary to Cal-OSHA's. "My investigation did verify that the unsafe working conditions did exist at the time in question," Alexander writes in a letter to Dutton and Higgins. But, after the rather bold introduction, Alexander goes on to advise that the union cannot aid them and to suggest "in the future ... refuse to work in the unsafe working condition. ... I know from your suggested remedy of your grievance that safe working conditions, education of the members and awareness of individual rights are your primary concerns. I believe we can and will accomplish this without a written apology from J.W. McClenahan Company."

Indeed, it seems Local 393 has washed its hands of the matter. Dutton and Higgins say union bosses were bought off. Contractors contribute millions of dollars to Local 393 each year for things like training and pensions. Higgins and Dutton say the union returned the kindness by not rocking the boat.

The union, though, isn't talking. "I'm going to decline the opportunity to comment," says Ray Lancaster, Local 393's business manager. "But thank you so much."

While Local 393 sits on its hands, more violations are occurring--despite Tom Alexander's rosy predictions that the union can handle the problem. Two union members called Cal-OSHA in October complaining about a propane-spewing forklift in the basement of San Jose State's Campus Village. Again there was no ventilation. The message to union members is as obvious as the stench in the air: Contractors and union officials care more about their cozy relationship than about the lives of workers.


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From the March 31-April 6, 2004 issue of Metro, Silicon Valley's Weekly Newspaper.

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