Michael Gaynor
Four Pinocchios for Steve Elbow's hit piece on Obama administration target Catherine Engelbrecht
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By Michael Gaynor
June 7, 2013

Elbow produced an OSHA violations notice, but not the October 11, 2012, OSHA cover letter to Engelbrecht's family business .

Counterattack on True the Vote founder and Obama administration target Catherine Engelbrecht was inevitable and Steve Elbow of The Capital Times elbowed his way into the story with a hit piece titled "Fact checking Ron Johnson 'victim' Catherine Engelbrecht's OSHA claims" (http://host.madison.com/news/local/writers/steven_elbow/fact-checking-ron-johnson-victim-catherine-engelbrecht-s-osha-claims/article_3d237f86-9893-5b7b-be0b-55fb66dc0ce4.html#ixzz2VM9CCiof).

OSHA is one of several federal agencies that investigated Engelbrecht and/or her family business after she filed for 501(c)(3) status for True the Vote in July 2010 when they had never done so before.

Forbes covered Engelbrecht's ordeal in "Why You Should Care That The U.S. Government Has Targeted Catherine Engelbrecht And Her Organizations" (www.forbes.com/sites/larrybell/2013/05/30/why-you-should-care-that-the-u-s-government-has-targeted-catherine-engelbrecht-and-her-organizations/).

In the lengthy Forbes article, Engelbrecht was quoted as follows: "OSHA conducted its first-ever unscheduled audit of our facilities in July 2012. After the inspector minutely examined our premises and talked with our managerial staff and employees, she found only a couple of small problems...the wrong type of safety glasses on an employee...the wrong type of seat belt on a forklift. And although the inspector complimented us on a tightly-run shop, we later got slapped with a $25,000 fine. That represented quite a lot of money for our small business. We eventually negotiated it down to $17,000, but that was still a lot. It meant that instead of giving an employee a raise or hiring another worker, we wrote a check to the government."

Elbow obtained OSHA records and criticized Engelbrecht's statement in his hit piece, as follows:

"According to this OSHA document, Engelbrecht negotiated the $25,000 fine down to $14,910.

"I had requested the documents last week while putting together a story on Engelbrecht, who was highlighted as part of [Senator Ron] Johnson's 'Victims of Government' effort.

"The citations, released Friday evening by the U.S. Department of Labor (and attached to this post as a PDF), show that the business was cited for obstructions in aisles, neglect in labeling non-exit doorways that could be mistaken for exits, failure to make sure the forklift operators wore seatbelts, not providing employees operating a metal grinder with protective eyewear, allowing an employee to operate a forklift without proper training and certification, failure to install guards on rotating grinders and band saws, failure to anchor a milling machine to the floor, creating an electrical hazard by plugging heavy machinery and other electrical devices into portable power strips instead of fixed wiring, and failure to label numerous hazardous chemicals.

"Of Engelbrecht's complaint that the OSHA inspections were 'unscheduled,' Department of Labor spokeswoman Diana Petterson responds: 'it is illegal to provide advance notice of OSHA inspections so there is no such thing as a "scheduled audit."'

"She said that Engelbrecht's oilfield machine tool operation, which according to a video produced by Johnson had not been inspected for its first 18 years of operation, was chosen as part of an OSHA initiative to inspect fabricated metal products manufacturers in Arkansas, Louisiana, Oklahoma, Texas and New Mexico."

I do applaud Elbow's apparent interest in being precise. He noted that the fine was $14,910, not $17,000, as Engelbrecht had said to Forbes. And, for the record, the proposed OSHA penalty actually was $24,850, not $25,000, to be precise. But it seems to me that the lower the fine, the better for Engelbrecht and her business, and the differences are hardly significant to the key issue – whether the Obama Administration targeted Engelbrecht for its own political reasons.

What I find deplorable are:

(1) Elbow's false claim that Engelbrecht "complained" that the OSHA audit was "unscheduled" when she merely described it as such, accurately, and, although OSHA does not conduct them, there are such things as "scheduled audits" conducted by government agencies, such as the IRS;

(2) Elbow's false claim that Engelbrecht "negotiated" a settlement with OSHA when OSHA routinely offered to settle for 60% of the proposed penalty because no Repeated, Willful, Failure-To-Abate or High Gravity Serious violations were found and her family business simply accepted the OSHA proposal;

(3) Elbow's detailed depiction of the violations to suggest that Engelbrecht's family business had big safety problems when that does not appear to be true; and

(4) Elbow's failure to explain how settling with OSHA can simply be a smart business decision. What is significant to me is that the cost of contesting nine claimed violations apparently would have exceeded the cost of settlement.

One Pinocchio for each of his misrepresentations.

Elbow produced an OSHA violations notice, but NOT the October 11, 2012, OSHA cover letter to Engelbrecht's family business.

It began as follows:

"The recent inspection of your workplace revealed no instances of Repeated, Willful, or Failure-To-abate violations, nor were there a significant number of High Gravity Serious violations. Additionally, the compliance officer has reported that you have a good understanding of the actions that you relinquish your necessary to correct the violations cited, and that you are willing to make those corrections by the date(s) specified in the attached citation, These factors, along with the good faith you have exhibited, make your firm eligible for an Expedited Informal settlement Agreement (EISA). Under this program, an employer and OSHA can enter into an Informal Settlement Agreement without going through the formal procedure of meeting in the Area Office. However, if you decide to enter into the EISA, you should be aware that you relinquish your right to contest the citations and penalties of this inspection."

Elbow's report that an OSHA employee claims that the Engelbrecht family business was not audited because Engelbrecht was targeted for political reasons does not make it so, of course, nor does it explain at all the timing of the IRS and BATF audits or the FBI inquiries, which should be considered to together in order to understand what's been going on.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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