Author: Thomas H. Welby

A recent ALJ case, involving a multi-item citation, underscores some unusual, and some recurring, issues in OSHA compliance and procedure.

The case, Secretary v. ASM-Sanders, Inc., arose out of work being done by a mechanical and HVAC subcontractor at the Warner Robins Air Force Base in Georgia.

Part of ASM’s work involved installing pipe from the access highway to a chill water plant.  That pipe had to be installed at a downward angle, below existing utility lines.  ASM was using 6-inch PVC pipe, covered with 2 inches of insulation and 2 inches of hard casing.

Two ASM employees, Andre Maldonado and superintendent Greg Arra, were working together with employees of ASM’s sub, Dublin Mechanical ? its owner, Jacky Brown, and his helper, Adam Westberry.  ASM had discovered a leak in the recently-installed chill water line, and Arra, accompanied by Maldonado, Brown, and Westberry, was making repairs.  Arra used sandpaper to smooth the ends of the pipes to be joined, then treated the sections with solvent and cement.  The workers then slid the two sections of pipe together, and left together for lunch.

During their lunch break, Arra told the three other men that he did not want to test the repaired pipe until the following morning, to give the newly-joined section of transition pipe time to cure.
However, shortly after returning from lunch, Brown asked Westberry and Maldonado to help him test the pipe.  Brown asked Westberry to pressurize the line to 100 psi, and then got down into the trench to see if the repair had been effective.  Maldonado was working outside the trench, and above Brown.  Arra was working about 100 feet away, putting bedding into the trench, and was not aware that the line was being pressurized.

As pressure in the line reached about 70 psi, the pipe exploded, and a section of it struck Brown in the head.  The force of the explosion knocked Maldonado off his feet.  Maldonado called out to Arra, who told him to call 911.  The pipe then exploded in a second location, knocking Arra down, as he tried to come to Brown’s aid.  Emergency personnel arrived shortly, but Brown was pronounced dead at the scene.

OSHA compliance officer Caliestro Spencer arrived at the site at dusk, and returned the following morning to begin his investigation.  Carmine Squatriglia, the safety director for ASM’s parent company, arrived from out of town that same morning.  After a brief delay ? the Air Force had secured the accident site as a crime scene ? the site was released to OSHA.  Spencer conducted an opening conference in ASM’s trailer, and took witness statements from the workers and AFB personnel.  He also inspected, measured, and photographed the trench in which the men had been working.

Spencer charged ASM with three violations.  One was under OSHA’s General Duty Clause, ¬ß 5(a)(1), which mandates that employers furnish their employees with employment and a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to the employees.  This citation item was based on the use of compressed air to test the PVC pipe.
The two additional citation items were for having workers in an unshored trench more than 5 feet deep, and for failing to provide a stairway, ladder, ramp or other safe means of egress from an excavation more than 4 feet deep.

When the matter came on for trial before the ALJ, ASM made, and the judge rejected, a motion to dismiss, based upon the compliance officer’s refusal to permit ASM’s representatives to be present during his (1) interviews of Maldonado, Westberry and others; and (2) inspection of the accident scene.
OSHA’s procedures do not permit management to be present during employee interviews.   This is not entirely fair to employers (as hearsay evidence, attributed to unnamed employees, can be received in evidence at the trial, and may even constitute an “admission” by the employer).  Nevertheless, these procedures are deemed to be necessary, to protect employees from potential retaliation.  Accordingly, ASM’s motion to dismiss was squarely rejected as to that ground.

The other issue ? that ASM’s representatives were excluded from accompanying Spencer during his inspection ?was taken more seriously.  While the ALJ disapproved Spencer’s having denied Squatriglia the opportunity to accompany him (and did not credit Spencer’s claim that he had invited Arra to do so) he did not grant the motion to dismiss, because he determined that ASM had failed to show any prejudice flowing from such denial.

Turning to the merits, recall that OSHA’s “General Duty Clause” is violated when (1) a condition or activity presents a hazard; which hazard (2) is recognized by the employer, or by the industry generally, as such and (3) is likely to cause death or serious physical harm; and (4) a feasible and effective means exists to eliminate, or materially reduce, the hazard.

The Secretary contended (and the ALJ agreed) that the elements of a General Duty Clause violation were shown, as employees were exposed to a struck-by hazard when the 8″ insulated PVC pipe was filled with compressed air to test for leaks.  Ample proof that this posed a hazard of death or serious injury was found from the fact that the pipe exploded, and Brown was killed when struck in the head by a piece of the pipe being tested.  A ready means of abatement existed:  to use only shatter-resistant materials.
The General Duty Clause citation item was vacated, however, and no penalty assessed, because the ALJ found that ASM had not had actual or constructive notice that pneumatic testing was being conducted on the day in question.  Arra had plainly told his crew that he did not want to test the pipe until the following day, Brown (not an employee of ASM) had taken it upon himself to order the testing, and Maldonado had no supervisory authority.  It was not foreseeable, the ALJ found, that Brown would disregard Arra’s instructions.

However, the other two items were affirmed, and monetary penalties assessed (although the item as to the depth of the excavation was downgraded from a “Willful” violation to a “Serious” one).
The lessons from the ASM case are as follows.

1.  Be aware that you are not entitled to be present during OSHA interviews of your employees.
2. You can, however, and should have a representative accompany the OSHA compliance officer during his or her inspection.
3. Know your materials.  PVC pipe, to use the example at hand, is not all the same.  Some types can be tested under pressure; others cannot.  It is important (especially when you are working in collaboration with other contractors) to have clear specifications and lines of authority regarding material purchases and testing procedures.
4. There is little excuse for trenching violations.  These are a leading cause of injury and death.  After fall protection violations, these are the most frequently cited by OSHA at construction sites, and the rules are not particularly complicated.¹   A trench deeper than 5 feet (unless in stable rock) must be sloped, shored, or otherwise protected against a cave-in.  Period.  There is really no excuse for not measuring the depth of the trench. If it’s even close to 5 feet, it’s better to have a written record made that it was measured, and better still to have photographs taken before any incident has occurred, or OSHA inspector has appeared.  Even if less than 5 feet deep, moreover, the trench should be inspected at least daily by a “competent person,” and written records of inspections should be maintained.
5. If you put men down into trenches, provide them with ladders.  Clambering on pipes, cables, and duct banks is not a suitable means of egress.  A way out of the excavation should be readily accessible in case of an emergency.  Often (for example, where the trench is unusually deep, or there are obstructions on the bottom service of the trench) you will want to do better than the minimum under the standard, which requires a ladder or other means of egress within 25 lateral feet, where the excavation is 4 feet deep or deeper.
6. Always keep the General Duty Clause in the back of your mind.  Not every hazard equals an OSHA violation, but a recognized hazard, posing a danger of death or serious injury, and for which means of abatement are available, may be.

On July 28th, OSHA released its new safety rule aimed at reducing injuries and deaths related to the operation of construction cranes.

The new rule, most of which will come into effect on November 8th, has been a dozen years in the making, and supersedes the existing rule promulgated in 1971.

According to OSHA, the new rule “is designed to prevent the leading causes of fatalities including electrocution, crushed-by/struck-by hazards during assembly/disassembly, collapse, and overturn.  It also sets forth requirements for ground conditions and crane operator assessment.  In addition, this rule addresses tower crane hazards, the use of synthetic slings for assembly/disassembly work, and clarifies [its] scope, by providing both a functional description, and a list of examples for the equipment that is covered.”

The new rule, OSHA estimates, “will prevent 22 fatalities and 175 non-fatal injuries each year.”

The substance of the new rule will be the subject of a follow-up article, as it runs to more than 1,000 pages in the Federal Register.  The entire rule can be viewed online at www.osha.gov/doc/cranesreg.pdf.¹ OSHA is promising to have fact sheets and other compliance assistance material available within the next month.

While I will own up to not having read the new rule from front to back, I can offer a heads-up and references to some of its salient provisions, as follows:

First, the new rule governs most types of cranes and derricks when used in construction-related activities (see the definition of construction at 29 C.F.R. ¬ß 1911).  As you probably know, Part 1910 standards apply to general industry, and Part 1926 covers construction.   The new rule will apply to general industrial employers (and to maritime operations) only when cranes and derricks are used in construction-related activities.  The use of cranes in, for example, a manufacturing plant, not for construction purposes, will not be affected.  (For cranes used in demolition, see ¬ß 1926.1501).
Second, the new rule covers most but not all types of cranes and derricks engaged in construction activity.  You can refer online to the scope section at ¬ß 1926.1400, which outlines the types of equipment within the coverage of the rule.  Boom trucks are covered, as they are considered cranes.  Excavators used to hoist loads with a sling are not covered, but multi-purpose equipment is covered, when it is configured like a crane (as described in the preamble to ¬ß 1926.400).  Telehandlers with rotating upper units and booms are not covered, unless equipped with a winch for hoisting.  Heavy equipment service trucks, as used on construction sites to lift parts for equipment repair, are also excluded. 

Another noteworthy change is that the required minimum distance from active electrical power lines is increased from 10 feet to 20 feet.  (Information regarding construction crane activities related to electric utility work may be found in ¬ß 1926.1400, and ¬ß¬ß 1926.1407 through 1411).

Fall protection standards for employees working with cranes are set forth in § 1926.1423.

Perhaps the biggest change overall is that, nationwide, all crane operators will have to be third-party certified by 2014.  In those cities and states in which crane operators are already required to be certified, of course, those requirements continue in effect, so long as they are otherwise consistent with the new rule.  The documentation of certification is described in ¬ß 1926.1427.  

Additionally, both signal persons (see ¬ß 1926.1428) and riggers (¬ß 1926.1401) will be required to be “qualified” (although not third-party certified).

Shift and monthly inspections must be done by a “competent” person.  Annual inspections must be performed by a “qualified” person (as defined in ¬ß 1926.401).

If you have followed the progress of the rule through the lengthy rule-making process, you should be aware that a number of important changes and additions were made since the rule was proposed.  Among the notable additions and changes are the following:

• The operator certification test may be administered in a language, other than English, understood by the candidate.
• Under ¬ß 1926.1427 of the new rule, employers will have to provide the certification for employees employed by them on the effective date at no cost to those employees.
• There are new requirements that require the exchange of information among employers concerning ground conditions on the job site.
• Employers will generally be required to comply with manufacturers’ recom¬≠mendations for the use of synthetic slings.
• Whenever employees are present in the “fall zone,” the load will have to be handled by a qualified rigger.  (The “fall zone” is defined as any area where the load can reach, if lost or out of control).
• Tower crane parts will be required to be inspected before the crane is erected.
• Forklifts are within the scope of the new rule, but only when they are configured like a crane.
• Pole work related to power transmission and to telecommunications has been excluded, although it is covered by a general industry standard (¬ß 1910.269).
• Employers whose employees are qualified in work under subpart V (power trans¬≠mission and distri¬≠bution) of Part 1926, the construction standard, may comply with ¬ß 1910.269 of the general industry standard.

The new rule also clarifies that, consistent with the overall OSHA scheme of things, federal OSHA does not pre-empt local or state rules (many states have their own rules, which are required however to be at least as effective as the federal standards).  States such as California and North Carolina which have their own OSHA statutes will have six months to update their own rules, if necessary.

OSHA estimates that about 267,000 construction, crane rental, and crane certification establishments, employing a total of 4.8 million workers, will be affected by the new standard.  

Keep in mind that, if you are a general contractor, you will generally be co-responsible for compliance with the new crane standard, even if none of your own employees are themselves involved in the operation of covered equipment.

The good news, to be sure, is that a great deal of hard work has obviously gone into this new rule and, certainly, it was the product of a process in which the voices of manufacturers, construction employers, and labor organizations were heard.

Whether the new rule might have been formulated and adopted more expeditiously, or expressed in fewer than 1,070 pages, are now moot points.  Come November, most of the key provisions (other than the third-party certification for operators) will be in effect, and you need to familiarize yourself with the new rule (look for online help after Labor Day, or contact your regional or area OSHA office) and plan accordingly.

An ALJ recently vacated four “Serious” citation items (and $20,000.00 in penalties) arising from an incident at a Manhattan construction site, in which an employee was hospitalized following a 17-foot fall through a faulty floor hole cover consisting of an unsecured sheet of plywood.

Eurotech Construction Corp. had two subcontracts with Tishman Construction on a high-rise construction project.  One subcontract was for masonry work, and the other was to install and maintain temporary fall protection (perimeter guarding, barriers and floor hole covers) throughout the site.

On the day of the accident, Eurotech was erecting a masonry wall on the 45th floor of the building.  It was working in a location at which another subcontractor, Century Maxim (“Century”), had been working that same day.  At about 1:30 in the afternoon, Roberto Rodriguez fell through a floor hole from the 45th to the 44th floor.  OSHA Compliance Officer Robert Stewart arrived at the scene about two hours later, photographed the plywood sheet he believed to have been the faulty cover, and had an opening conference with Richard Centina (a superintendent for general contractor Tishman) and Gerard Sheridan (a Eurotech foreman).

While the CO did not determine who had installed the faulty hole cover, he concluded that the condition had existed for 3-4 days, during which Eurotech’s employees had been working in the area, and that Eurotech should be held responsible for the condition.
Four “Serious” citations were issued, one each for failing:

• to do frequent and regular “competent person” inspections of the floor hole cover;
• to secure from displacement the floor hole cover through which Rodriguez fell;
• to color-code or to label the floor hole cover “HOLE” or “COVER;” and
• to re-train employees, when they were unable to recognize that fall protection was required while working near the inade¬≠quately secured floor hole cover.

The employer preserved its rights by filing a timely Notice of Contest, and contested all four citation items, as well as the $20,000.00 in penalties proposed.

CO Stewart, in conducting his investigation, had interviewed (in addition to Centina and Sheridan) two additional Eurotech foremen, Jerome Byrne and John O’Shea.  He appears not to have interviewed Rodriguez, or to have found anyone who claimed to have seen the accident.  It was not disputed that the cover had not been labeled or color-coded, and was not nailed down properly.  Stewart cited Eurotech, based on its employees having been working near the hole cover for several days, but he never ascertained who actually installed the improper cover.  He was the Secretary’s lone witness at trial.

Byrne, Eurotech’s masonry foreman, testified about accompanying Rodriguez to the hospital, that he conducted weekly safety meetings at which fall hazards were discussed, and that other contractors, including Century, had been working on the 45th floor.

Project Manager Brian Murphy testified about the fall protection subcontract, his and foreman O’Shea’s efforts to enlist Tishman’s help in counteracting other subcontractors’ destruction or breach of fall protection installed, and how a marked improvement in reporting came about as a result of Tishman’s making a demand on all subcontractors.  Murphy also testified that he consulted with O’Shea daily, and that Eurotech regularly had 6-7 men walking the floors to inspect fall protection installations as part of their daily routine.

The ALJ found most convincing the testimony of O’Shea, and ruled that knowledge of the violative condition was negated by O’Shea’s testimony of his twice-daily inspections (including on the morning on the day of the occurrence), the plausibility that Eurotech’s employees on a busy day might not have noticed the non-compliant cover, plus the lack of real proof as to how long the unsafe cover had been in place.

While it appeared that a proper cover had been removed and replaced with the unsafe one, the ALJ found that Eurotech’s burden of care did not extend to anticipating the actions of other contractors.  “If a passageway is properly lighted,” the ALJ stated by way of illustration, “a subcontractor does not have to stand around and see that the bulb does not burn out.”

For the foregoing reasons, the ALJ vacated the first three citation items.  It vacated the failure-to-train item, based on Eurotech’s demonstrated regular training, and the Secretary’s failure to show that the improper cover (not shown to have been in place for any length of time) gave Eurotech reason to believe that its employees lacked the understanding and skill to recognize a faulty floor hole cover.

The lessons from the Eurotech case are these.  First, fall protection isn’t just about body harnesses and lanyards, and floor holes are a major and often-underestimated part of the problem.  Always keep in mind that falls are both the biggest single cause of injuries and deaths on construction sites, not to mention the construction hazard most often cited by OSHA.

Second, you (and your employees, especially your field supervisors) need to be familiar with the OSHA standards governing floor holes and floor hole covers.  Among other requirements, the holes have to be covered, the covers must be of the proper size, and properly labeled and secured, and you must conduct (better still, conduct and keep written records of having conducted) regular and frequent “competent person” inspections.

Third, Eurotech is another recent case in which a separate “failure-to-train” item appeared in the citation. Regular safety and OSHA-compliance training must be conducted, and documented.  And, when management learns of more than isolated instances in which employees fail to conscientiously follow the rules, it’s important to re-train.  You want to create a record of having detected a problem; a proactive response; and measures to ensure employee safety and prevent future violations, while making clear to your employees that their safety is a major concern, and non-observance of OSHA standards is unacceptable.

Fourth, whenever you are cited for an OSHA violation, keep in mind that the employer’s actual orconstructive knowledge of the violative condition is a fundamental element of the Secretary’s burden of proof.  The mere existence of a violative condition is not sufficient:  it must be one that the employer (by its supervisory employees) actually knew existed, or could have been discovered by it with the exercise of reasonable diligence.

Finally, while in a recent article I suggested that COs may enjoy a “home field advantage” in OSHA trials where witness credibility is critical, in Eurotech the employers’ witnesses were found to be more credible.

While, to be sure, the CO’s testimony was not squarely at odds with that of the employer’s witnesses, and the ALJ made no finding that the CO had told less than the truth, I think that the CO failed to do a thorough job, and that O’Shea’s experience and demeanor (and the consistency among the witnesses for the employer, each of whom was excluded from the courtroom while his colleagues testified) won the day.

Sometimes, complying with OSHA can be tricky.  There are many construction-related standards, and some of them require careful monitoring, or the application of some technical expertise.
Others, however, are pretty much matters of common sense.

If your employees are engaged in the application of “harmful contaminants,” including but not limited to “paints, coating, herbicides, or insecticides,” you need to provide them with “adequate washing facilities.”

The relevant standard, 29 C.F.R. ¬ß 1926.51(f)(1), requires that washing facilities “be in near proximity to the worksite and shall be so equipped as to enable employees to remove such substances.”

As an Administrative Law Judge held in Secretary v. Eshbach Brothers, L.P., a water hose and a 55-gallon drum won’t suffice as an “adequate washing facility.”  While the standard in question does not expressly so provide, the Secretary has determined that workers exposed to Portland cement must be provided with clean water, non-alkaline soap, and towels.  Since the Secretary’s interpretation is entitled to deference if reasonable, these simple requirements were upheld by the ALJ.

Eshbach was doing masonry work, as a subcontractor, on a National Guard facility in Pennsylvania.  An OSHA compliance officer inspecting the jobsite  viewed Eshbach’s employees perspiring in the July heat, mixing Portland cement with water, and getting wet cement on their hands and arms.  He photographed open bags of Portland cement displaying large-type warnings that, when in contact with moisture in the eyes or on skin, or mixed with water, the material becomes highly caustic, and can damage or severely burn the eyes or skin.

Asked by the compliance officer what employees used to wash up with, an employee, Timothy O’Brien, pointed to the water hose and 55-gallon drum.  Eshbach was cited for a “Serious” violation of the standard, and contested the citation and the penalty.

On the day of the inspection, the OSHA compliance officer had spoken both with the general contractor’s job superintendent, John Yeich, and with the employer-subcontractor’s foreman, John Gechter.  Mr. Yeich had assured him that he would assist the employer, to ensure that the condition was corrected.
On the following day, the compliance officer telephoned Wilson Eshbach, a senior manager of the employer having safety oversight, and was again assured that the situation would be corrected.

At the trial, however, Eshbach sought to fashion a defense, based upon the existence of a bathroom inside the general contractor’s trailer.  O’Brien testified that, while he had never actually used the bathroom in the trailer, he and other employees did have access to it.  O’Brien stated that his custom was to use the hose to clean off cement; that he washed with soap and water at home; and that, in three years of working for Eshbach, he had never suffered any cement burns.

The employer’s foreman, Mr. Gechter, testified that Dolan’s trailer was favored by employees as it had air conditioning, and that Eshbach conducted its safety meetings there.  O’Brien, however, testified that Gechter had never spoken to him about washing up with soap and water, and Gechter stated that he had not been aware of the hand-washing requirement when the compliance officer spoke with him.

While it’s rare that one can diagnose with certainty, just by reading a decision, that witnesses for the losing side were insufficiently prepared, that may have been the case here.  I suspect that Eshbach’s representative failed to think through his “theory of the case,” and just how he intended to establish it through the employer’s witnesses.

Not only did Eshbach fail to offer any evidence that any employees actually used the lavatory in the job trailer for washing up after handling cement, it failed to show that employees had been told they could use the trailer for that purpose.

Mr. Gechter, the employer’s foreman and “competent person,” testified not only that he had not even inspected the bathroom in the trailer to ascertain that it contained towels, but that he had been wholly unaware of “the hand-washing thing.”  It could not have favorably impressed the ALJ that the so-called “competent person” testified that he had been “floored” by how much the CO “kept going on” about the “thing.”

In developing a defense strategy ? indeed, in determining whether to contest a citation ? you need to know (and to make sure your attorney understands) the practical and economic realities of OSHA litigation.

It’s not that OSHRC proceedings are completely stacked against you.  The ALJs are knowledgeable specialists, and nearly always conscientious in their application of the law.  Nevertheless, as the respondent, you have significant, built-in disadvantages.

One is that the DOL has attorneys on salary, not billing at hourly rates, who know the OSH Act back to front (and are known to the judges, too).  And, while it’s “good news” is that monetary penalties under OSHA are generally modest, a “bad news” consequence of that happy fact is that few, if any, private attorneys make their living mostly by defending OSHA citations.  As a result, your lawyer will almost certainly have less relevant experience, and less in-depth knowledge of the OSHA standards, than his DOL adversary.  He or she will have a “learning curve” in nearly every case.

It’s a challenge, too, for a private attorney to properly prepare your OSHA case for trial, in a manner commensurate with the (usually) small amount of money involved.  In all but the smallest commercial cases, for example, depositions are almost a given — but in an OSHA case, even deposing the CO will often be an extravagance.

While I wouldn’t accuse the ALJ’s of raw partiality, the DOL (as I trust that everybody knows) is the “home team” at an OSHRC trial.  The same CO you believe to have been lazy and careless, to have made up facts to paper over his sloppy work, and whose trial testimony impressed you as inconsistent, evasive and unconvincing, will appear in the ALJ’s decision as an upright, unbiased and wholly credible witness.  If your only route to winning at trial will unavoidably require you to run directly over the testimony of a government witness — if you lack any defense, sufficient to get the citation vacated, that doesn’t depend upon the ALJ finding that the CO testified untruthfully — your best alternative might be to throw in the towel.  While few OSHA cases are straight-up “swearing contests,” that’s not a match you can hope to win on points.  Where there is no basis on which the case can be decided, other than a finding as to the truthfulness of a CO or other government witness, it’s not enough to lay a glove on him in cross-examination; you will almost always need to “put him on the canvas.”

Know, too, that the ALJ, by emphasizing that the outcome reached was very much based upon his assessment of the truthfulness of witnesses who appeared and testified before him, can come close to foreclosing all prospects of a successful appeal.  Findings of fact, to the extent that the same are based on a judge’s findings concerning the credibility of witnesses, are all but untouchable on appeal.

A related disadvantage is that, under the Federal Rules, essentially anything said by employees can be deemed an admission by the employer, and will not be excluded as hearsay.  Plus, hearsay is admissibleunder the rules governing administrative proceedings ? and, in addition, there are rules (in the nature of whistleblower protections) which limit the disclosure to you of what your employees may have told OSHA personnel.

So, if the compliance officer testifies that an (unidentified) employee of yours told him that violations of the cited standard were both rampant and known to management, your lawyer will be in the impossible position of having to “cross-examine” an unnamed witness.  If the CO chooses to buttress his case, by stating that employees made statements damaging to the employer, he’s pretty much at liberty to enhance, or even invent outright, such statements.  (This is another good reason to treat the CO respectfully during his inspection.)

So — in addition to providing “adequate washing facilities” for your employees — it is indispensable, if you elect to invest in a trial of an OSHA citation, that you have a “theory of the case” (an account of what happened, which if established negates the citation) and a detailed plan as to how to prove it.  You must discuss carefully with counsel the nature of your defenses, and agree upon a “theory of the case,” and the evidence to be presented in support.  If you fail to identify what you need to prove, what your witnesses are going to say, and exactly what evidence you have that will give you a chance to win, you would be better off, in almost any OSHA case, withdrawing your notice of contest, paying the recommended penalties, and moving on.  If the case isn’t worth the legal fees for counsel to meet with your witnesses to prepare them to testify, it’s almost certainly not worth the fees for counsel to appear and actually try the case.

Several recent installments have discussed OSHA’s increasing emphasis on “failure to train” as the basis for citations, and as a means to circumvent some of the requirements of OSHA’s “General Duty Clause.”

I have also highlighted practical difficulties employers face in not just going through the motions of training, in order to satisfy OSHA requirements, but in training effectively, so as to accomplish the primary goal of getting employees to “work safe” and thereby reduce the number and severity of job-related illnesses and injuries.

While I am a strong proponent of safety training, and would encourage you to all you can reasonably afford to do in this area, in light of the limited “absorption rate” of even the best training amongst the construction rank-and-file, I have suggested that special emphasis be placed on your supervisory personnel.  They, especially, should receive both comprehensive training in all of the OSHA standards affecting your trades.  No less importantly, supervisors should have ownership’s clear mandate to be alert to safety transgressions, and to correct and discipline workers who break safety rules. ¹

A recent Administrative Law Judge decision signals some recognition at least that, while employers are responsible to lead the proverbial horse to water, it’s not a per se violation of the obligation to train, whenever an employee commits a safety infraction.

The facts in Secretary v. Republic Services of Florida were as follows.  The employer was engaged in garbage collection in South Florida.  Its employee was operating a truck-mounted crane, to unload a container at an apartment complex.  The crane’s boom came within two feet of an overhead power line energized to 230,000 volts, and not guarded or insulated.  Electricity from the line shot to the ground, damaged the crane, thrust Girtman, the operator, back in the cab of the vehicle (causing him to lose consciousness) and opened a hole in the ground.  Girtman, luckily, survived, but was off work for a month, and resigned not long after returning to work on light duty.

A general-industry OSHA standard prescribes that employees be “trained in” and “familiar with” the safety-related work practices required by 29 C.F.R. ¬ß¬ß 1910.332 through 1910.35 that pertain to their job assignments.

The specific standard in which the employer was alleged to have failed to train Mr. Girtman was § 1910.333(c)(iii)(A), which provides as follows:

Any vehicle or mechanical equipment capable of having parts of its structure elevated near energized overhead lines shall be operated so that a clearance of 10 ft. (305 cm) is maintained.  If the voltage is higher than 50kV, the clearance shall be increased 4 in. (10 cm) for every 10kV over that voltage. . . . ² 

The citation issued to the employer consisted of two items.  One was that Girtman had not been trained in the clearance distances in the standard just quoted.  The second was that Girtman had been exposed to the unsafe condition of the crane being operated only 2 feet distant from an energized, 230kV power line.

The employer was shown to have a safety program including a safety manual, monthly safety meetings, and weekly tool box talks.  Girtman’s testimony that, in his 14 years of employment, he had never been trained in the specific distance to maintain from an energized overhead line was contradicted both by the company’s safety manual (which stated the distances per the OSHA standard) and testimony by his supervisor.  The latter testified that the distances were mentioned form time to time in monthly safety meetings, and had been referenced specifically in at least two such meetings in the 16 months prior to the occurrence, at least one of which had been attended by Girtman.³ 

Clearly, the ALJ found based on the evidence presented, in spite of such training received Girtman “obviously did not understand the need to maintain a safe distance or what the safe distance was.”  Touching on a difficult and sensitive point, the ALJ held in effect that a defense to the first citation item was established by proof of the provision of the training.  And, while the Secretary had urged that the standard’s requirement that employees be “familiar with” the distance requirements implied a requirement that the employer not onlyinstruct employees in the standard, but also conduct testing to ascertain that the instructions have been absorbed, the ALJ rejected that view:

The dictionary defines “familiar” as “frequently seen or experienced.” . . . The occurrence of an accident does not establish than an employee did not receive the training. . . . Also, an employee’s failure to comply with a safety rule does not establish a failure to train.

 Based on the foregoing, the ALJ vacated the failure-to-train citation item, holding that the Secretary had failed to prove, first that the employer had not provided training regarding the safe distance to maintain from overhead power lines and, second, that the standard requires employers to test employees, to ensure that they understand the requirements.

As for the second citation item (that Girtman had been exposed to the hazard of the crane boom being only 2′ from the energized power line) that ALJ vacated that violation as well.  It is an essential element of an OSHA violation that the employer have knowledge of the condition, whether actual knowledge orconstructive knowledge.  The latter, of course, is shown by circumstances in which the employer should have known of the condition with the exercise of reasonable diligence.

Actual knowledge was not alleged in the Republic Services case.  As the ALJ noted, the factors relevant to a “reasonable diligence” inquiry include the duty to inspect the work area and anticipate hazards, the adequate supervision of employees, the formulation and implementation of training programs, and work rules designed to ensure that employees work safely.

By those criteria, the ALJ found, it had not been shown that the employer should have known of Girtman’s failure to comply with the safe distance requirements for overhead power lines.  That citation item was vacated accordingly.

While this case did not arise out of a construction scenario, if you operate, e.g., cranes, scarifying machines, or dump trucks, you will need to be in compliance with the construction-industry counterpart to the standard involved in Republic Services.  Operating equipment too close to energized power lines is, in fact, one of the most frequently-cited violations of the OSHA construction standards.

Going back to the issue of testing, in a recent OSHA case defended by my office, although the single citation item was not based on a failure to train (and the Secretary did not squarely allege that the violation consisted in, or included, the employer not testing its employees’ understanding of OSHA standards) it was pointedly raised by the Secretary at trial, and again in her post-hearing brief, that my client did not conduct such testing.

Although, perhaps, I am being overly suspicious, it occurs to me that it may be that OSHA is hoping that, if it persists in raising the issue in ALJ proceedings, it may get a ruling that effectively engrafts onto the training requirements an additional requirement of testing.  If, however, employers are going to be put to the trouble and expense of administering exams to employees, based upon their safety training, such a requirement ought to be enacted through the normal administrative rule-making process, not by judicial pronouncement.

OSHA ¬ß 1926.21(b)(2) requires employers to “instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”  A few months back, I noted a marked increase in “failure to train” citations under this regulation.

OSHA has always had built-in tension between its aspiration to provide a safe workplace for every worker in America versus the practical impossibility of achieving zero workplace injuries (not to mention political and economic constraints on burdening employers).

OSHA’S basic regulatory framework has traditionally consisted of a host of specific requirements, plus ¬ß 5(a)(1) a/k/a the “General Duty Clause.”  Although certainly wide-ranging, OSHA’s specific standards cannot address every situation.  Accordingly, the principal “gaps” (but not every conceivable hazard) are intended to be filled in by the General Duty Clause, which requires each employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The General Duty Clause is itself an embodiment of the tension found throughout OSHA.  It purports to be expansive, on the one hand, as it imposes obligations on employers beyond those in OSHA’s myriad specific requirements.  Pressing in the opposite direction, however, are limits on its scope.  Although sometimes described as a “catchall” provision, it wasn’t truly designed to be that.  The General Duty Clause doesn’t say that the detection by an OSHA compliance officer of a hazard, not covered in any specific standard, equals a violation.

As applied in the cases, establishing a violation of the General Duty Clause requires proof of four elements:  (1) an actual hazard that the employer failed to prevent or remove; (2) that the hazard in question pose a threat of serious injury or death; (3) that the hazard be “recognized” (essentially, that it be actually known to the employer, generally recognized in the employer’s industry, or patently obvious) and (4) that there be shown a feasible and useful means to correct the hazard.

OSHA’s increasing resort to “failure to train” bespeaks, I suspect, not so much an enhanced appreciation of the blessings of training, as a creative use of the regulation to fashion an equivalent to the General Duty Clause, minus the inconvenience of having to prove elements (2), (3) and (4).  “Failure to train” has become something closely approaching a true catchall, imposing liability wherever there is a hazard to which employees were exposed, which the employer could have identified with the exercise of “reasonable diligence.”

For example, in Lane Construction Corp. (2009) the administrative law judge upheld a citation for “failure to train.” In that case, the employer was performing a nighttime milling and paving operation on a rural stretch of U.S. 98 in Florida.  A crew was assigned to close the northbound lane of the two-lane highway.  Employee Felipe Felix-Espinaldo took, from a flatbed truck parked on the southbound shoulder, a “Maintenance of Traffic” sign 6’6″ tall and weighing 20 to 30 lbs.  As Felix-Espinaldo entered the unlit northbound lane, at night and on foot, carrying the unwieldy sign and headed for the northbound shoulder, he was struck by a car and fatally injured.

OSHA cited Lane for failing to train its employees in “the proper method of carrying road signs across active roadways to prevent visual obstruction of on-coming vehicles.”¹ In affirming this citation, the ALJ rejected the employer’s arguments (1) that the “failure to train” standard was inapplicable because there is no standard regulating the proper way to carry road signs; and (2) the necessity to look both ways before walking into an active lane of traffic is “not something that an adult in the working world should have to be told.”  The Secretary, the ALJ ruled, may properly cite the “failure to train” standard even in the absence of a specific standard addressing the underlying condition.²   The obviousness of the danger, she held, does not negate the need to provide employees with adequate safety guidance.

The ALJ in Lane relied upon a prior case decided by the U.S. Court of Appeals for the Sixth Circuit, W. G. Fairfield Co. (2002).  In Fairfield, the court upheld a “failure to train” citation, where a worker perished while trying to cross six lanes of traffic on foot on Interstate 71 in Ohio.  In part because I have considerable difficulty with Fairfield on its own merits, I have a problem with Lane insofar as the latter relies on it.

Supposedly (or so the Court of Appeals in Fairfield held) “in determining the adequacy of an employer’s instructions under OSHA, the primary inquiry is whether the employer’s program of safety instruction provided adequate guidance.”  If correcting or avoiding the hazard be the purpose to which instruction must be “adequate,” and no specific OSHA standard applies, I think it is neither fair to the employer, nor precedent beneficial to employers and courts in future cases, to uphold a “failure to train” while providing no guidance, or minimal guidance, as to what instructions would be adequate (and useful) in the circumstances.

Confusingly, all of the ALJ, the OSH Review Commission, and the Court of Appeals upheld in Fairfield the “failure to train” citation, while disagreeing as to the permissibility of ever trying to cross a six-lane interstate on foot, and avoiding all but a single, not-very-useful hint as to just what employees ought to be told.

The ALJ agreed with both the OSHA compliance officer and a sheriff’s deputy who testified as an expert witness that “no reasonable person” could have ventured to cross, on foot, six lanes of interstate highway with traffic traveling between 55 and 70 MPH.  The OSH Commission disagreed, however, that an outright ban was indicated, but upheld the citation, finding that the hazard was obvious, and gave rise to a duty on the employer to instruct employees, especially as at least one “potentially safer alternative” (traversing the interstate in a vehicle) was known to it.

Notwithstanding that the ALJ, the compliance officer, and the sheriff’s deputy had (no doubt unintentionally) provided considerable support for this position, the Court of Appeals rejected the employer’s argument that the undeniably obvious hazard of walking into six lanes of high-speed interstate traffic was too obvious to require safety instructions.  While finding that the employer’s sin was that it allowed its employees to exercise “unfettered discretion on when to cross on foot” and in failing to offer “adequate guidance about how and when to do so,” the Court itself completely failed to provide illumination as to the necessary content of such “adequate guidance,” except to note that using a vehicle might sometimes avoid the hazard.³  Had the factual scenario in Fairfield been analyzed under the General Duty Clause, I doubt that a court could have upheld a citation without a fuller, and therefore more instructive, discussion of the practicalities of avoiding or correcting the hazard.
Fairfield would seem to be dubious precedent to support Lane, most obviously as six lanes of heavily-trafficked interstate pose different safety considerations than a two-lane, rural highway.

Lane impresses me as unwise, also, for its emphasis on the manner of carrying the road sign, a matter of secondary importance.  In the absence of prominent warning signals (and reduced speed restrictions) even with only two lanes to traverse, and visibility not further limited by poor weather or curves in the roadway, I think it is always an unacceptable risk to permit anyone to venture on foot into an unlit, active traffic lane at night, while bearing any large, heavy, or unwieldy object.  And, if there are instances in which it is reasonable to require employers to warn against risks that would be very obvious to many, Lane I think surpasses the limits. Walking into an unclosed, high-speed traffic lane, even in bright sunshine, with a large, clumsy object even capable of being carried so as to obstruct one’s view, is not something a grownup in the working world should have to be told not to do.

Finally, there is a touch of perversity in OSHA expanding its use of “failure to train” as a basis for citations, in the measure that, by purposefully skirting use of the General Duty Clause, its citations result in lessguidance (which is all the more significant given the non-existence of specific standards to refer to).  In addition to being unfair to employers, such corner-cutting disserves the cause of protecting workers from injury and death.

A safety precaution that sometimes “falls through the cracks” is the necessity to ascertain, before moving heavy equipment around on a jobsite, that the composition, and the condition, of the surfaces on which the equipment will be moving will withstand the weight of the equipment fully loaded.

In Secretary v. Central Florida Equipment Rentals, Inc., the employer was performing a subcontract on a waste water treatment facility in South Florida.  The job was to raise each of three manmade berms abutting retention ponds by about six inches.

CFER’s foreman, Villa, decided to carry out the job by using a wheel-mounted Caterpillar 725 to unload the fill in the top of the berms.  Then, while the Cat circled around the retention pond to bring in the next load of fill, a bulldozer would spread the prior load, by driving over the berm.  That would continue until the berm reached the required height.  A roller would then pass over the berm, to compact the soil. 
The Cat used on the berms measures 9.5′ wide from wheel to wheel.  It weighs a little over 49,000 pounds unloaded.  Fully loaded, it has a capacity just over 101,000 lbs.
The configuration of the berm was such that, at places, the Cat would have to be operated close to the edge, with only about 1.5 feet of clearance on each side.

CFER was told nothing by the owner, or the general contractor, regarding the condition of the berms, the composition of the soil, or whether the berms could support the weight of the Cat.  CFER was sufficiently concerned that there might be some issue regarding the points just mentioned, because Villa instructed employees not to fill the Cat to capacity.  However, no one at CFER made any inquiry to the public owner regarding the capacity of the berms, and did not direct employees to weigh their loads.  When the citation came to trial, it was noted that no one maintained the berm to regularly handle vehicle off-highway vehicle traffic in a safe manner.

CFER employee Tod Laroche, an experienced operator, was operating the loaded Cat near the edge of the berm at about 1:30 P.M. on a bright sunny afternoon when a portion of the berm grave way, causing the Cat (with Laroche strapped into the cab) to plunge into 20 feet of water in the retention pond.  Villa had walked the berm that morning and found that the same was fairly level, and without significant holes.  Villa did not test or evaluate the berm material, and it never occurred to him to inquire about its compactness.  It was Villa’s decision to have Laroche drive the loaded Cat onto the berm, but Villa admitted he did not know the weight-bearing capacity of the berm, the combined weight of the Cat and its load, how steep the berm was, the depth of the water in the pond, and whether there was any soil erosion on the side of the berm next to the water.  He underestimated the width of the Cat slightly.

Villa was not onsite when Laroche plunged into the pond in the Cat and, indeed, no one witnessed the accident.  Police and divers were summoned when employees saw the Cat in the water, but it took rescue workers until 4:30 A.M. the following morning (and three tow trucks) to pull the Cat, and Laroche’s body, from the pond.

CFER was cited for a “Serious” violation of an OSHA standard that prohibits moving construction equipment or vehicles upon “access roadways or grades” not constructed to accommodate safely the movement of the equipment and vehicles involved.

CFER contested the citation and penalty, and the matter came on for trial before an Administrative Law Judge.  OSHA’s compliance officer, Lopez, testified among other things that the probability of an accident was increased because the weight of the Cat’s load was concentrated under the vehicle’s tires.  Especially as the berm was made of pre-disturbed soil, Lopez likened it to a trench.  OSHA’s standards do not permit static loads (such as spoils piles) within two feet of the wall of an excavation.  Here, it was noted, the Cat represented a live load, that was only about 1.5 feet from the edge of the berm.

It was noted also at the trial that the manual for the Cat cautioned users, among other things, to know the machine’s dimensions; to operate the machine only with adequate clearance; avoid coming close to the edges of cliffs and embankments; and that rocky surfaces may cause side slipping.

The ALJ characterized CFER’s plan to use the Cat 725 atop the berms as a “recipe for disaster,” but acknowledged that, where the employer made efforts to comply with a performance standard and the Secretary argues that its efforts were deficient, it is incumbent on the Secretary to demonstrate where the employer’s efforts fell short, and what it should have done to comply.  The ALJ agreed with the Secretary that CFER should above all have made appropriate inquiries to determine whether the berm was constructed or maintained to accommodate its choice of vehicles.

The ALJ also turned aside several defenses proffered by the employer, among other things rejecting an argument that the berm was not a “road” for purposes of the standard cited, and a defense of “infeasibility.”  The latter defense required that CFER prove either that the job could not be done without the Cat 725, or that not using that equipment would present a greater hazard.

The “infeasibility” defense was quickly dispatched by proof that, following the fatality, the work was completed by delivering and dumping the fill at the near limit of the berm, and using a bulldozer to push the fill out onto the berm.

The citation was upheld as “Serious” and the monetary penalty proposed by the Secretary was approved.

Especially when it is proposed to operate equipment weighing up to 50 tons on surfaces that, being man-made, are inherently likely to be unstable, you can’t simply determine that the surface in question is safe by eyeballing it.  In such a case, you need an engineer’s input, plus documentation that technically adequate inquiries were made.  That applies tenfold when the intended use is close to any precipice or body of water.

In the CFER case, unfortunately for operator Laroche, his employer cut corners first by making no inquiries regarding the capacity of the berm, and second, by selecting the Cat 725 in large part because its greater capacity was expected to speed the job.

As OSHA nears its fortieth birthday, the agency and affected constituencies are taking stock of what OSHA and the OSH Act have accomplished, and the likely direction of enforcement efforts under the Obama Administration.

The OSH Act became law toward the end of the 30-year postwar period that followed World War II, and at the end of a decade that saw unprecedented initiatives intended to benefit minorities, working people and the disadvantaged.  The OSH Act was the product of bipartisan collaboration in Congress rarely if ever seen in recent years, and was signed into law by Republican President Richard M. Nixon.

Many changes in the economic and political landscape have come about since the 1970s.  I don’t think anyone would claim that OSHA has even approached the goals envisioned by its drafters.  Still, traumatic workplace deaths fell by half under OSHA (as the workforce grew by 60% and more), a substantial achievement.  And, through thick and thin, under Democratic and Republican administrations, since 1970 employee safety has always enjoyed at least some place on the national political agenda.

In the minus column, the OSH Act’s goal of assuring safe and healthful working conditions for American workers remains far from full realization.  Confirmation requires nothing more than pointing to the fact that, during OSHA’s first quarter-century, approximately 294,000 Americans died of traumatic injuries in the workplace.

Traumatic deaths, moreover, are just the tip of the iceberg:  most occupationally-related deaths are due to illness resulting from exposure to workplace chemicals or toxins.  They often become manifest years or decades after the exposure, and are seldom recorded in an employer’s OSHA 200 Log, or by the Bureau of Labor Statistics.¹ 

While some claim that OSHA trails only the IRS as America’s least-beloved federal agency, the lore concerning Kafkaesque regulations and over-zealous enforcement personnel is larded with propaganda.  What OSHA really does have in common with the IRS is the necessity to rely, for the most part, on voluntary compliance.  OSHA has never enjoyed ample staffing, or generous funding, but on the whole it does a creditable job of leveraging the limited assets that it has. Less than religious adherence to OSHA standards remains, certainly, widespread.  I have heard clients complain, sometimes rightly, about citations they believed lacked justification.  Nevertheless, while OSHA compliance is often fitful (and seldom enthusiastic) almost no one expresses contempt for the idea that employee safety is a good thing, or even that there is a government agency that works to promote it.

For several years, momentum has been gathering to increase the number of OSHA inspections and “SWR” (Serious, Willful and Repeat) citations, and to increase both monetary penalties generally, and criminal penalties — if only for “Willful” violations that result in employee fatalities.

One area which appears to be targeted for increased enforcement is OSHA’s (many) record-keeping requirements.  These are “low-hanging fruit” for OSHA inspectors (as few employers’ records are above reproach).  Moreover, brazen book-cooking is believed to be widespread, many employers keeping two sets of records (one for OSHA and the company’s Workers’ Comp insurer, and the other for its health clinics).

Locally, the word is that area OSHA offices are hiring considerable numbers of new enforcement personnel.  In our firm’s practice we are already seeing greater willingness on the part of compliance officers to cite OSHA violations as “Willful,” and less readiness to bargain such citations down to “Serious” ones.

We’re seeing also an uptick in the number of citations alleging violations of the many OSHA provisions requiring that employers train their forces to recognize and avoid health and safety hazards.  Not only is “failure to train” increasingly cited as an OSHA violation, but we detect at least some willingness on the part of OSHA to look to test the sufficiency of detail in an employer’s training program directed to a particular hazard (even where the extent of the regulatory mandate is uncertain).

I’ve always encouraged my clients and readers to train (and re-train) employees.  One reason I’m so adamant about repeat training is that it’s one thing to spend for a glossy, state-of-the-art company safety manual, but quite another to get your 21st century workforce to understand and observe even the fundamentals.

Critics of American educational and social institutions would argue that many young people have limited verbal skills, don’t comprehend complex instructions, and resist obeying them even if they do.

Also, employment relationships are in general more transient than they were circa 1970 when the OSH Act became law, and it’s not a given (certainly in the New York metro area) that a company’s workforce will even have a common language.

The Tower-of-Babel situation resulting from decades of high immigration levels obviously makes effective training more difficult.  An example of how pitiful the laws’ response to the diversity “explosion” has been is that defendants in certain kinds of civil litigation (notably, consumer collection and landlord-tenant matters) are required to be served with a bilingual summons, in both English and Spanish.

While such requirements are no doubt well-intentioned, it’s almost comical to see judges fretting over whether Gujurati, Yiddish and Fujian-speaking defendants have been duly served with papers written in Spanish.  And while it’s praiseworthy that some employers have paid to produce editions of their company safety manuals in Spanish, the last census counted 322 languages in daily use in American households.  Most of those linguistic groups are small and many are tiny, but if you’re running a substantial construction project in the NYC metro area, chances are that the workforce will include speakers of (in addition to English and Spanish) Korean, several varieties of Chinese, Haitian Creole, Urdu, Russian, Bengali, Arabic, Punjabi, Portuguese (European, Brazilian and African varieties) French (including its African varieties, plus Qu√©becois) and others.² 

A further complication is that OSHA regulations have an extensive and exotic jargon.  Not only have many regulations technical aspects not readily understood by laymen, but there lots of acronyms, specialized terms and “buzz words” in OSHA parlance.  

Studies as to how much of the information imparted during the OSHA 10-hour course is really absorbed have yielded discouraging results.  One tested not rank-and-file construction workers, but students in a master’s program in construction management.  The proportion who achieved a grade of Satisfactory or better, after sitting through the OSHA 10-hour course, was only about twenty percent.  A less highly-educated group of Spanish speakers produced no test-takers achieving “Satisfactory” scores.

While training employees effectively is a problem you can’t avoid wrestling with, policy should take into account both the harsh economic climate and the difficulties (most of them due to larger forces, over which employers have no control) of getting bang-for-the-buck, true comprehension, from safety training outlays.  This, I believe, is not an opportune moment to abruptly raise the bar, or to instruct OSHA compliance officers to issue large numbers of citations to push the limits of how much detail must be taught, especially as to hazards that account for few injuries and fatalities.

As your paramount goal should be to minimize employee injuries, not exposure to citations, consider focusing on your field supervisors.  Whatever difficulties there be in bringing your entire workforce to an optimal level of OSHA knowledge, you can give your field supervisors the most comprehensive training you can afford, plus an unambiguous mandate to enforce safety rules.  While priorities vary according to trades, the perennial evils are falls, excavation cave-ins, “struck-by” hazards, and electrocutions. If OSHA is stepping up inspections, it’s just plain dumb to have anyone, ever, working aloft without fall protection, or in an unshored trench.  A review of OSHA record-keeping requirements applicable to your firm should be on your “To Do” list as well.