The case of Willie Pelayo
General laborer foreman Willie Pelayo rode a malfunctioning buggy into an elevator shaft and was killed at Trump Dec. 5, 2006. OSHA initiated a two-month long investigation and issued a report that involved extensive documentation, including photographs and a complete evaluation of the buggy. OSHA issued his employer, Perini, three violations, and then held an informal conference where an OSHA administrator, in a hand-written note, said that Perini had sacrificed safety for speed. Then OSHA issued an amended list of violations that reduced fines against Perini.
Here are some of the documents involved in the case:
The luxurious casino Cesar Pelli designed for CityCenter is morphing day by day into the soaring blend of curves and glass the architect envisioned. But on Oct. 5, it was still an unrecognizable shell of steel columns and shiny corrugated metal.
About 20 cranes would have been in the sky that day, the ground a maze of trucks and equipment and thousands of tradesmen stacked above one another inside building frames where work went on around the clock. They were busy building a casino and six adjacent high-rise structures, the most expensive private commercial development in U.S. history.
It was here that Harold Billingsley found himself 59 feet above the ground floor, walking in his brown ironworking boots on uneven temporary decking. He was heading to pick up extra bolts for his crew, his family believes. He stumbled.
Ordinarily, he would simply have fallen onto the decking. But at this exact moment in that exact spot, the decking contained a 3-by-11-foot hole that state investigators later said should not have existed.
Ironworkers wear safety harnesses for times like this. An attached cable is supposed to stop a plunge. Billingsley’s was not attached.
Safety regulations called for a temporary floor or netting no more than two stories down, a last chance to break his fall. None existed.
The man friends called “Rusty” for his fiery red hair fell to his death.
His was the fourth construction fatality at CityCenter, adding to what had already become a disturbing trend up and down the Strip. In the shadows of the cranes, steel and concrete upon which Las Vegas has pinned its addiction to growth, a body count has emerged. Nine construction workers have died in eight accidents since the end of 2006 at the towers that are redefining the Las Vegas skyline — Trump, CityCenter, Cosmopolitan, Fontainebleau and Palazzo. That’s as many deaths in 16 months as were reported during the entire 1990s building boom on the Strip. This time, the list of fatalities includes a safety engineer whose job was to find and correct safety problems on the work site.
“There’s no excuse for having that many people die,” said Emmitt Nelson, a construction safety expert based in Houston who consults for contractors and for the building industry’s Construction Industry Institute.
Investigators for the Nevada Occupational Safety and Health Administration found troubling patterns of safety violations: failure to ensure that workers are properly trained, allowing workers to use faulty equipment and leaving workers exposed to falls by not covering over or guarding gaping holes or not placing temporary planks or netting below.
Those are surprising mistakes for large, experienced construction companies, say experts eager to determine the reasons.
The federal OSHA office in San Francisco is considering an investigation as part of its oversight of Nevada OSHA, and the District Council of Ironworkers for the Nevada region is working with unions and contractors to review safety issues.
Mark Ayers, president of the Building and Construction Trades Department, a Washington, D.C.-based, arm of the AFL-CIO that oversees many trade unions, is awaiting permission from Perini Building Company Inc., the general contractor on CityCenter and other Strip projects, to send in a team of safety experts in search of answers.
“Something is inherently wrong, but we don’t know what it is yet,” Ayers said.
The tradesmen working on the Strip, however, do have an answer. Ask some of the tens of thousands of them and they will say: The pace and scope of the construction is dizzying. It’s all so much, so fast.
The workers describe construction sites that are crowded with equipment and people, combined with consistent — though often unstated — pressure to do everything at top speed.
While chugging after-work drinks at a bar nearby or chatting with buddies outside a union hall, workers sometimes wryly and nervously refer to the CityCenter site as “CityCemetery” or “CemeteryCenter.”
“The whole system is clogged up like I-15,” said an ironworker who identified himself as a union steward at CityCenter. “There are traffic jams, so that makes you less productive and makes you nervous. Then you hurry up because you’re trying to be a productive employee. Just like how when you speed on a freeway you have less time to react, when you hurry on the job you have less time to correct that mistake.”
Even boom-boom Las Vegas has never attempted anything as ambitious as the $30 billion-plus in projects under way on the Strip. Leading the way is MGM Mirage’s $8 billion CityCenter, a project so massive that it has no clear parallel in the United States: Six high-rise buildings going up simultaneously. Next door, the same general contractor, Perini, is erecting the two towers of Cosmopolitan at a cost of more than $3.5 billion.
MGM Mirage has promised it will finish the entire CityCenter project by the end of 2009, opening, remarkably, on the same day. The adjacent Cosmopolitan, spearheaded by developer Ian Bruce Eichner, is set to open at roughly the same time. Todo all that — and avoid costly penalties contractors typically face in Strip construction projects if they miss a deadline — the pace has been relentless.
Perini is a giant U.S. company whose most recent insurance industry safety ratings are slightly better than average, according to research provided by Southwest Contractor, an industry trade magazine.
Perini refused repeated requests from the Sun to answer questions, even after MGM Mirage joined in asking its contractor to do so. The company insisted in a statement that it follows strict safety practices and requires its numerous subcontractors to do the same.
MGM Mirage spokesman Alan Feldman said the gaming giant has reviewed and discussed every injury at CityCenter with Perini.
“We’re very concerned about safety in anything we do, whether it’s a room remodel or something as enormous and complex as CityCenter,” Feldman said. “For the number of people on the site and the amount of activity going on, we can be very proud of the fact that we have a very safe environment in which to work.”
Construction safety experts interviewed by the Sun say the deaths and the violations investigators found suggest contractors aren’t taking enough safety precautions. They also find fault with Nevada OSHA for not forcefully upholding safety laws.
A review by the Sun found that Nevada OSHA discovered numerous violations by contractors in each death, but the agency then watered down or entirely withdrew its citations after meeting with the contractors.
The Sun’s review also found that trade unions in Las Vegas are not seeking aggressive OSHA enforcement. Unlike some unions in other parts of the country, Nevada locals do not insist on representing workers’ interests by joining in OSHA’s meetings with contractors.
The investigation into Billingsley’s death is an example.
Nevada OSHA cited Billingsley’s employer, subcontractor SME Steel Contractors, because Billingsley’s safety harness was not suitable for use and the decking had several improper holes, including the one he fell through. (OSHA did not cite the company for violating the regulation that requires decking or netting two floors below steel erection work. A 2002 federal OSHA ruling makes such a failure a minor violation if a company is making sure workers attach their safety harnesses.)
The agency fined SME $13,500.
After delivering those findings and citations, however, OSHA administrators met alone with representatives of SME. The victim’s family was not invited. His union, Ironworkers Local 433, could have attended but did not.
At the meeting, SME argued that Billingsley was solely responsible for his death.
OSHA reversed itself and agreed, withdrawing all findings of employer error.
Current and former federal OSHA officials and other job safety experts told the Sun they find the decision troubling. Only rarely should OSHA withdraw citations in fatal accident cases, they say.
“This is not a reflection of OSHA policy. This is counter to policy,” said Alan Traenkner, who monitors Nevada OSHA as the director of analysis and evaluation for the federal Department of Labor office in San Francisco.
“It should be the employer’s burden of proof,” Traenkner said. “It’s our responsibility to conduct an investigation where we come up with facts and make the proper determination, and if the employer contests that, it should go to the review board.”
Frank Strasheim, former regional administrator at the San Francisco office, said Nevada OSHA should not have simply withdrawn the citations. “You don’t back away on a fatal investigation unless the employer presents evidence that shows you’re totally in the wrong,” Strasheim said.
Instead, investigators should either reopen the investigation or force the contractor to appeal. “It’s better if it’s decided in court than to just give it away,” Strasheim said.
To safety advocates, the risk is clear.
“When you remove a citation, it doesn’t do anything to send a message to the employer or other employers that there are serious consequences for serious violations of the law,” said Peg Seminario, director of safety and health at the AFL-CIO. “So then the enforcement scheme doesn’t prevent future occurrences.”
On Dec. 5, 2006, the parking structure of the Trump International Hotel & Tower, 1.5 miles north of CityCenter, was typical of construction sites up and down the Strip: crowded with equipment and workers.
Laborers were relying on tub-shaped scooters known as “Georgia buggies” to carry wet concrete to the spots where it would be poured. Normally, the workers would use concrete pumper trucks, but they couldn’t get to the trucks because they were blocked in by other equipment on the congested site.
So workers drove the buggies, one of which proved confounding. It seemed to have a mind of its own that day.
An employee using the buggy on the sixth floor was startled when it suddenly jerked backward as he squeezed the accelerator handle, and he hit another worker. Instead of reporting the injury or retiring the buggy, the worker drove it to the floor below and handed it off to Isidro Pelayo, a 39-year-old foreman everyone called “Willie.”
The worker told Pelayo the buggy “just wasn’t feeling right.” One wheel was shaky. Be careful.
It didn’t take long for Pelayo to bump into another worker with the buggy and start complaining himself about the annoying piece of equipment.
Another worker suggested he quit using it. No one knows whether Pelayo heard that. Maybe he decided to pick up more concrete. Or maybe he was trying to drive the buggy out of the way so that it couldn’t hurt anyone else.
Either way, Pelayo, standing at the buggy’s controls, suddenly backed into an elevator shaft guarded by a plywood wall. As the wood flew up, the buggy hung over the edge, the engine still on. Suddenly it jerked up, and Pelayo fell into the elevator shaft and 70 feet down, followed by a piece of plywood.
Nevada OSHA’s investigation found that workers should not have been using the buggy.
Its brakes, accelerator and transmission fan blades were all in bad shape, the agency said. The investigation also found that no one was checking the buggy daily to make sure it was safe to use, that it hadn’t been maintained properly, and that Pelayo had not been adequately trained to operate it. Plus, OSHA had found the previous May that Pelayo’s employer, Perini, was not training laborers to operate the buggies, and it had required Perini hold the training. The company offered no proof that it had complied.
The underlying problem? According to Nevada safety inspectors, Perini had sacrificed safety in the rush to finish the job.
“Employer set safety culture to fail by allowing unsafe equipment use and not enforcing training,” OSHA Chief Administrative Officer Tom Czehowski wrote. “Foreman (deceased) was a member of management and placed productiveness before safety, just as the employer has.” Three violations he cited carried total fines of $18,900.
That rebuke of Perini’s “safety culture” was OSHA’s most strongly worded public statement regarding recent Strip construction. But at the informal conference with Perini at which Czehowski blasted the company’s safety culture, he also agreed to withdraw one fine and downgrade another, reducing fines to $8,300.
Pelayo’s death was the first in the string of fatalities over the past 16 months. The others that followed, in addition to Billingsley, were of:
Angel Hernandez, 24, and Bobby Lee Tohannie, 40:
On Feb. 6, 2007, the two carpenters were working the swing shift at Vdara Tower at CityCenter, assigned to help remove two aluminum structures inside an elevator shaft that were used as molds for concrete called concrete forms. Together the forms weighed 7,300 pounds. Their supervisors, running late, were not briefed by their morning counterparts on the status of the job.
A supervisor, assuming the forms were secured inside the shaft, ordered them disconnected from a crane, which was needed for another job. Once disconnected, however, the forms collapsed on Hernandez and Tohannie.
Norvin Tsosie, 36:
On Aug. 2, 2007, the apprentice fell from a 30-foot wall at Fontainebleau, a site overseen by Turnberry West Construction. Working for subcontractor Nevada Prefab Engineers, he and his team were on top of the wall trying to straighten a column that was slightly tilted. The column was connected to a cable with an untested, improvised hook. It broke under pressure, causing the workers to tumble off the wall.
Tsosie’s safety harness was useless because it was attached to the same cable. The other workers were attached to a more secure point. They were injured but survived.
Harvey Englander, 65: The veteran operating engineer and Perini employee was greasing an elevator Aug. 9, 2007, at the Pelli Tower at CityCenter when he was struck by a counterweight from an adjoining lift and killed.
Michael Hanson, 42: The laborer working for Taylor International Corp. was using a pry bar Nov. 26, 2007, to remove temporary concrete slabs at Palazzo when his foreman raised a slab with a forklift. A piece of the slab struck Hanson on the head and he fell backward.
David Rabun Jr., 30: An ironworker, Rabun was replacing bolts in a steel beam inside an elevator shaft at the Cosmopolitan on Nov. 27, 2007. He attached his safety harness to the beam because it was the only anchor available. Netting or a temporary floor should have been in place two stories below. Neither was. The beam broke free. Rabun fell four stories.
Michael Taylor, 58: The Perini safety engineer died Jan. 14, 2008, at the Cosmopolitan. No one saw what happened, but investigators believe he fell five floors when a corner iron post that helped hold up a guardrail system collapsed. The corner posts are usually held in place by support pieces called kickers, welded to the bottom, but one of the steel subcontractors had removed the kickers to install a beam and had not replaced them.
That string of Strip deaths is unusual, safety experts say, and U.S. Bureau of Labor Statistics numbers tend to support their opinions, although using those statistics to draw conclusions is tricky.
Nationally, Labor statistics show that in all forms of construction, about 13 deaths occur per 100,000 workers a year. With four deaths among no more than 5,000 workers at CityCenter last year, that project appears to have a much higher than average number of deaths. (A similar comparison for the entire Strip could not be made because estimates of the total construction workforce vary wildly.)
Although those figures are the only ones available for measuring construction death rates, statisticians at the Bureau of Labor Statistics caution that comparing CityCenter or any individual project with the national average is statistically invalid.
Aside from fatalities, Perini’s adjacent CityCenter-Cosmopolitan sites have had near misses and frightening accidents, such as when a 25-foot-tall wall fell and injured several workers, all of whom survived, and when a CityCenter crane hit a Cosmopolitan crane.
In fact, at least a dozen crane incidents, including collisions, have occurred at CityCenter, according to Greg McClelland, a representative of the Ironworkers Labor Management Cooperative Trust who has been looking into safety issues at CityCenter and other Strip projects. At least one of those was caused by unwanted voice traffic coming through over the radio system, McClelland said. The others he attributes to “lack of planning.”
“There’s just way too much stuff going on at once,” McClelland said.
Modern Las Vegas has always built at full speed, with contractors facing whopping penalties for missing deadlines and reaping bonuses for finishing early. But until the current boom, casino developers generally built hotel projects in phases.
In 1999, for example, Las Vegas Sands opened the doors to the first part of its master plan — the Venetian. In 2003, the company completed the adjacent Venezia. This year it unveiled Palazzo next door. And under construction now: a 400-unit condo tower.
MGM Mirage and others now are building differently. At CityCenter, MGM Mirage is building six high-rise towers, a casino, a convention center, a retail mall and all related parking structures and interior roadways — in just three years.
Not only is the center expected to make a splash as the biggest single-day opening of anything in Vegas history, but it means tourists and residents who bought high-rise condos can move about the property without dodging machinery or strolling past plywood walls.
“You only have a chance to make a first impression once,” said Feldman, the MGM Mirage spokesman. “Inviting people to a construction site is not the best way to go about it. We’ve seen some projects in Las Vegas attempt to do this and they invariably suffer initially either because you’re not able to get the full scope and scale or because it’s just inconvenient or disruptive.”
Keeping that same-day promise creates a convergence of construction challenges — on-site congestion, deadlines, inexperienced workers and exhaustion.
“The complexity of this project means that it requires an understanding of safety that is even larger and more involved than anything that anyone working there has ever had to deal with to this point,” Feldman said.
Workers say they are paying the price for that new level of complexity.
“They’re jamming way too many people on the site,” said a general ironworker foreman at CityCenter who wished not to be identified so that he could speak freely.
“What used to happen is we would erect a building and no other crafts would be underneath, but now there are crafts driving buggies, and the electricians and concrete people are coming in underneath,” the foreman said.
“You don’t have as many places to put key materials down,” he continued. “Everyone is fighting for real estate. You’re just asking for someone to make an error.”
After three months at CityCenter, ironworker Stephan Basden, 31, requested work at a smaller project. He said he was impressed with the safety precautions taken by his employer, subcontractor SME, which had several safety engineers on the site. But he found it all too rushed.
“Everyone was always going so fast,” Basden said.
Union representatives say inexperienced workers such as Basden and out-of-town workers who are not familiar with Las Vegas construction have made safety more difficult to achieve.
More than 25 percent of ironworkers in Las Vegas are apprentices with less than four years of experience, said McClelland of the Ironworkers Labor Management Cooperative Trust. Two of the three ironworkers who died on the Strip last year were apprentices.
Another factor is exhaustion.
Laborers put in as many as 70 hours a week because there’s money to make and subtle pressure to work extra hours. A 2005 study funded by the National Institute for Occupational Safety and Health found that working more than eight hours a day increased injury rates.
Outside safety experts say that all of these factors fit the profile of a zone susceptible to injuries and fatalities.
“The presence of more people around doing more things hinders the ability to move around frequently, and that creates more pressure,” said John Gambatese, an associate professor of civil, construction and environmental engineering at Oregon State University. Gambatese is an expert in construction safety and used to teach at UNLV. “It means that if you delay, you’re going to be delaying somebody else, and that would cause a ripple effect.”
Research into those dynamics is fairly new and there is not a lot of concrete evidence yet, Gambatese said.
But it rings true to many in Las Vegas.
“I know from experience that when you’re working a lot of hours you almost become a zombie, a robot, you’re just there going through the motions, and that is the time you really have to be careful and make sure and watch what’s around you,” said John Christiansen of Sheet Metal Workers Local 88.
But safety experts for both labor and industry maintain the deaths were hardly a foregone conclusion. Contractors should have the ability to oversee fast, multitowered projects that are not only fatality-free but injury-free, they say. They key is setting the right tone and putting the right policies in place.
“This is a dangerous business and it’s risky, but our philosophy is that zero accidents are possible, and we see it done,” said Rusty Haggard, an analyst for the Construction Industry Institute, an organization made up of large contractors and property owners. (Perini is not a member.)
“When you get into multiple high-rise casino projects, that makes everything more complicated, which just means you have to do more planning on the front end of the project,” Haggard said.
Perini declined to offer many specifics about its safety policy or to be interviewed directly. Two subcontractors whose workers were among the fatalities, Nevada Prefab Engineers and SME Steel Contractors, did not respond to requests for interviews.
In an e-mailed statement, Perini safety director Lisa Kane reported that Perini employs 38 safety professionals in Las Vegas, most at Cosmopolitan and CityCenter. Subcontractors have also hired their own safety personnel, Kane said.
Kane attributed some of the difficulties in part to the “exponential growth in the Las Vegas market,” which brought in many out-of-state workers. Kane also said that Perini has an outside safety consultant to recommend improvements.
“Management is fully engaged in meeting those challenges by promoting safety from the top,” Kane said in the statement. “Management regularly schedules on-site safety meetings with field personnel to personally send the message that they care about safety and want to hear their concerns or recommendations. Perini Building Company is committed to providing the safest work sites possible for our employees and contractors, continually striving to make improvements in order to promote an injury-free work environment.”
CityCenter developers never expected their enormous and complicated project would be free of accidents.
“It would be great if we could be incident free. That’s everyone’s objective, but I don’t think that’s realistic,” said Feldman of MGM Mirage. “I think when you’re dealing with human beings there’s too much potential for individual error. I think everyone has to work together to try to minimize the possibility of an incident.”
Joe Taylor, director of Southern Nevada Laborers-Employers Cooperation and Education Trust, a joint organization of the laborers union and contractors, said Perini has taken “a number of safeguards to help quell the rash of accidents. They have gotten such a bad reputation for all the bad things that have happened, and nobody sees the good that they are doing. It’s the size of the job, the amount of equipment, the long hours, the amount of workers that is causing this.”
In early February, little more than two months after his son fell four floors to his death at Cosmopolitan, veteran ironworker David Rabun eased into a booth at the Dew Drop Inn, a bar not far from the union hall. Bartenders kept the coffee flowing while union buddies munched on doughnuts that someone had placed on a long wooden table in the center of the cavernous room.
With crinkled eyes and a wry smile that allows him to transition quickly between laughing and crying, Rabun, 60, unloaded a stack of photos on the table. He leafed through a folder that held a scrapbook of his son’s death: newspaper clippings, important phone numbers.
Rabun had come out of retirement to work at CityCenter so that he could qualify for health benefits to get elective surgery. CityCenter was the easiest work to come by, and working the steel beams so close to where his son died would be cathartic, he thought, almost like therapy.
His first day proved tough. Rabun sat in on a safety meeting that Perini requires new workers to attend. “The instructor said you better pay attention if you don’t want someone to have to go to the morgue to pick out your body,” Rabun recalled. “I just lost it.” He left the meeting.
Finding some refuge later that day at the bar, Rabun remembered how delighted he was two years ago when his son, David Rabun Jr., decided to come join him in the Las Vegas ironworking world from Texas, where Rabun was raised apart from his father.
“I said if you’re going to do this crap, do it with your daddy,” Rabun said. “Your daddy is famous here.”
Rabun also thought he could protect his son in some way.
The younger Rabun, 30, found work at the Cosmopolitan.
His father attempted retirement and worried about his son, who complained the job at Cosmopolitan was going too fast and was too crowded. He told his father that sometimes there weren’t safe places for him to tie his safety harness.
“I told him, ‘Don’t ever tie yourself to the piece of steel that you’re balanced on,’ ” Rabun said. “I said, ‘Slow down. There are other jobs.’ I told him there are other people here he could work for.”
On Nov. 27, his son was balancing on a steel beam inside an elevator shaft. He hooked his safety harness to the same beam. A temporary floor was supposed to be in place no more than two stories below. It wasn’t.
The beam came loose. Rabun fell four floors, wearing his useless safety harness and plummeting far beyond the point where the temporary flooring should have stopped him. His father can’t shake the image.
“He wanted to stay there, because of the overtime,” Rabun said.