Plymouth firm says MIOSHA denied its subpoena seeking citation documents

Beth LeBlanc
The Detroit News

Lansing — Michigan's workplace safety agency denied a subpoena for records a company sought to defend itself against a citation, with the state agency labeling the court-approved request as too cumbersome and requiring access to documents that may have been deleted. 

When a Circuit Court judge overrode the agency's denial, state officials told the employer the state could retrieve the records but at the cost of approximately $141,000. 

Argent International in Plymouth refused to pay the fee for the documents and told the House Oversight Committee on Thursday that it is prepared to take its appeal against the $2,500 Michigan Occupational Safety and Health Administration citation to Circuit Court. It has waged a four-year appeal battle that has cost the company roughly $150,000 in legal and appeals cost.

"I felt like I had run into the deepest pocket in the world, the government," said Don Badaczewski, an ombudsman for Argent International.  

The company argued it is innocent of violating workplace safety rules, but also said it faces damage to its reputation, its standing with MIOSHA and some automotive certifications should the violations remain in place.

MIOSHA said in a Thursday statement it produced "many records" in response to the subpoena and Argent had "all of the information used by MIOSHA to determine whether a violation had occurred, as well as all of the information used for the hearing processes." The agency's cost estimate for the additional information was based on the "breadth of the request," said Jason Moon, a spokesman for the agency.

"Given the phrasing of the subpoena, and breath of records requested, MIOSHA estimated the production would have required the manual review of many devices, locations, and thousands of pages of documents which would have been very labor intensive," Moon said. "The cost estimate was a result of the breadth of the request and not any attempt to block appeal rights."

The subpoena denial described by Argent International is similar to that which the city of Port Huron reported having received when it also sought MIOSHA employee emails to fight a citation. Like Argent International, the city was told the request was too cumbersome and that emails pertaining to the case were deleted. An inspector later told the city of Port Huron in a deposition that employees were told to destroy any documents not part of the official case file.

The House Oversight Committee has held two hearings on alleged citation and appeals issues at the workplace safety agency and hopes to have MIOSHA director Bart Pickelman testify next week. Pickelman waited roughly an hour last week to testify but the committee hearing ended before he could respond to the complaints.

After the hearing last week, the agency shared Pickelman's prepared statement, which said the records destroyed in Port Huron's case were draft documents that were allowed to be destroyed if they were "fully transcribed and replaced by finals versions." Pickelman said the Port Huron emails were retrieved from the "deleted items" folder in Microsoft Outlook and provided to Oversight Chairman Steve Johnson, R-Wayland.

Argent International's citation dates back to a March 2018 employee injury at the 150-employee custom die cutter and fabricator. An employee was working on a piece of machinery and forgot to insert a block of wood as a failsafe to stop a 100-pound roller if it were to fall as he pulled and adjusted material in the machinery. The roller fell and injured the employer's arm. 

Badaczewski said a MIOSHA inspector later visited the business and told management that the accident appeared to result from an employee error, but because there was a serious injury the inspector said he had "to find a serious violation" of workplace safety.

"It was determined at that point by the person from MIOSHA that showed up that there wasn’t anything that Argent had done that created an unsafe work environment," said Deborah Sellis, Argent's chief operating officer and general counsel. "What it was was that the employee did not comply with training and the procedure they had previously been complying with all along."

The citation was the first the company had received in roughly 40 years. 

The agency said Thursday that all MIOSHA citations are issued "in accordance with the evidence gathered in inspections." "After a multi-layered review process, MIOSHA only issues citations when supported by the facts and the law," Moon said. 

Despite getting offers for a lower $1,500 fine, Argent International appealed the citation through two administrative levels before landing in front of an administrative law judge. At that point, according to Badaczewski, Argent International sought and obtained a subpoena for emails and documents related to its case, with the goal of finding the communication allegedly directing the inspector "to find a serious violation" at the company.

MIOSHA denied the subpoena, which Argent appealed to a circuit court judge. The circuit court judge ordered the agency to comply with the subpoena but said Argent would have to pay the cost of retrieving the documents. 

The agency pegged that cost at roughly $141,000, with at least some of the cost attributed to the agency's need to take some employees laptops to search for the information, Badaczewski said.  Argent would need to compensate the agency for the employees wages lost when they were missing their laptops.

Argent did not pay the $141,000 cost for the documents and instead moved forward with its administrative trial. The company's four-day trial in front of the administrative law judge stretched through 2020 and ended with the administrative law judge ruling in Argent's favor. 

But the state appealed the case to the Board of Health and Safety Compliance and Appeals, which ruled against Argent after a hearing where Argent was prohibited from testifying or answering any questions. The company alleged Thursday there were key facts the board got wrong about the machinery at issue that the company couldn't address because it was banned from commenting.  

The next step is for Argent to appeal in circuit court.

Badaczewski said agreeing to testify Thursday "was not an easy decision" and he hoped he and Argent would be treated as "whistleblowers."

“We’re here to inform the decision makers about what’s really happening, but we would like to have the protection of not being discriminated against or abused in the future for the testimony I give today," he said. 

Republican lawmakers expressed outrage with the agency's alleged behavior. Rep. John Reilly, R-Oakland Township, thanked the company for coming forward. 

"I’m smoking right now because I realize how government can have huge problems in our lives," Reilly said. 

But Rep. Julie Brixie, D-Meridian Township, defended the actions of the agency, noting the role the inspectors play in protecting thousands of workers across Michigan. She criticized the company for not paying the reduced fine.

"Just for members of the public who may be watching, MIOSHA exists to protect workplace safety and to protect our employees, to protect from injuries and fatalities," Brixie said.