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Precedent-Setting Worker Safety Case Ends in Acquittal

October 3, 1990

BOSTON (AP) _ A construction company president was acquitted of negligence in the death of an employee, but federal prosecutors said their effort to get tough with employers about workplace safety would continue.

Michael N. Pandelena, president of the now-defunct Mill Road Contractors Inc., was found innocent Tuesday by a U.S. District Court jury. It was the first prosecution under a federal pilot program that began this week in New England to go after workplace safety violations.

After a two-day trial, the jury decided Pandelena should not be held criminally responsible for the electrocution of John Nixon, a worker at a North Andover construction site in 1985.

Nixon, 23, was killed when he grabbed a chain connected to a backhoe that Pandelena drove too close to an electric line.

Pandelena, charged with willful negligence, would have faced up to six months in federal prison and a $250,000 fine if he had been convicted. Defense attorneys argued that the death was accidental.

John Miles, regional director of the Occupational Safety and Health Administration, said an experimental program that started on the same day as the trial will allow his office to more speedily prosecute employers for worker deaths.

″We learned a lot from this case, and I think it raises awareness of the employers that we’re serious about their cases,″ Miles said. ″One thing we learned is we have to get to trial more quickly.″

OSHA’s pilot program would speed up the time it takes to initiate such charges, Miles said.

Joseph Kinney, head of the National Safe Workplace Institute in Chicago, said the verdict sends ″a negative signal that if the government is not willing to treat these things in a prompt fashion, employers are going to keep getting away with murder.″

Kinney’s group, which lobbies for stricter safety enforcement, issued a report in July that said the federal government had put only one employer behind bars in the past 20 years over a workplace death.

There was not answer at Pandelena’s home telephone and his attorney did not return a phone call this morning seeking comment on the verdict.

Federal Occupational Safety and Health Administration standards require construction equipment to stay 10 feet or more from live electric lines, a regulation Pandelena admitted that he broke. His company previously was fined $8,200, which has yet to be collected.

OSHA violations normally result in civil, not criminal, charges. In order to convict employers of a crime, prosecutors have to prove they willfully violated safety regulations.

″It’s very unusual for the case to even have been brought,″ said Kinney. ″Clearly, it’s very difficult to prove these cases because the willful standard is hard to get around.″

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