Brooklyn Workplace Accident

Workplace Safety -  Workers Ingesting Liquid Mercury or Inhaling Mercury Vapors Case

THE PEOPLE &C., RESPONDENT,

v.

WILLIAM PYMM, EDWARD PYMM, JR., PYMM THERMOMETER CORPORATION, AND PAK GLASS MACHINERY CORPORATION, APPELLANTS.

Albert J. Brackley, Brooklyn, for Appellant William Pymm.
Lewis D. Cohen, Brooklyn, for Appellant Edward Pymm.
Charles J. Hynes, DA, Kings County (Shulamit Rosenblum, Jay M. Cohen of counsel) for Respondent People.
Robert Abrams, Attorney General (Nancy Stearns, O. Peter Sherwood, Lawrence S. Kahn of counsel) for Respondent State.
Michael B. Gerrard, Anne C. Weisberg, NY City, for NY Committee for OSHA; Daniel J. Popeo, Richard A. Samp, Washington, D.C., for Washington Legal Foundation; Jan S. Amundson, Quentin Riegel, Washington, D.C., for National Association of Manufacturers; amici curiae.

In this case, we consider whether federal regulation of workplace safety under the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq) (the Act) preempts New York's efforts to punish culpable employer conduct under its general criminal laws. We conclude that the Act does not expressly or impliedly preempt state prosecution of employers whose criminal activity happens to be centered in the workplace or directed against employees. The order of the Appellate Division reinstating the jury's guilty verdict against these defendants should therefore be affirmed.

The corporate defendants Pymm Thermometer Corporation (PTC) and Pak Glass Machinery Corporation (Pak Glass) are domestic corporations that operate on two separate floors of the same Brooklyn building. PTC, which is located on the second floor, manufactures thermometers for clinical use, while Pak Glass, located on the ground floor, services and repairs the machinery used by PTC. Defendant William Pymm was vice--president of both corporations from 1981 to 1984 and has been their president since 1984. Defendant Edward Pymm, Jr. holds the title of vice-president and has served as plant manager for both operations since 1981.

Mercury contamination has been an ongoing problem at PTC, posing a serious health risk to PTC's employees. The mercury used to fill the thermometers, although a liquid at normal temperatures, readily evaporates into the surrounding air. Once inhaled, mercury vapor passes from the lungs into the bloodstream and is then circulated throughout the rest of the body, including the brain. Mercury can also enter the body through breaks in the skin, or can be ingested by eating food that has come in contact with mercury or by failing to wash mercury-contaminated hands before eating. Mercury vapor is highly toxic and long-term exposure to low concentrations of mercury can result in permanent neurological damage. Victims of mercury poisoning experience restlessness, sleeplessness, loss of appetite, faltering gait, tremor of the hands, unsteadiness, difficulty in concentrating, and memory loss.

A number of inspections dating back to the early 1970's revealed that workers at PTC's second floor manufacturing facility were not adequately protected from the dangers of mercury poisoning. Before the enactment of the Act, the Division of Industrial Hygiene of the State Department of Labor monitored workplace safety at PTC by conducting semi-annual inspections of the PTC plant. In 1975, the Occupational Health and Safety Administration (OSHA) assumed responsibility for workplace safety. OSHA conducted four inspections of the facility between 1981 and 1984. These inspections revealed hazardous working conditions in the second floor manufacturing area. Workers did not wear protective gear, such as gloves or respirators, and the workplace was dangerously contaminated with mercury. Both William and Edward Pymm were warned of the dangers of mercury poisoning and were encouraged to adopt measures that would minimize the possibility of workers either ingesting liquid mercury or inhaling mercury vapors. PTC was twice cited by OSHA as a result of the workplace conditions observed on the second floor.

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