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Major Citations Reversed When Evidence of Compliance Excluded

By: Doug Ehlke

Saturday, July 1, 2017
 

These two cases illustrate how OSHA administrative-review courts may reverse major citations when evidence of compliance has been excluded.

Case 1

Expert witnesses’ testimony for the employer on the inapplicability of the new crane standards’ separate duties and on technical safety of the operation were taken out of colloquy and admitted.

In an early test of the interpretation of new federal and state OSHA crane standards, the bulk of trial testimony by three standards authors and recognized industry experts was objected to and excluded as evidence by putting it into “colloquy.” Under the new crane-safety standards, worksite employer-supervision responsibilities are separately designated for the lift director, site supervisor, crane owner and operators. When a crane owner leased its crane and operators to a different employer and required by contract for the crane renter customer to supervise the leased operators and crane activities, the crane-owning company, without supervisors on the job, was cited for lift-director and site-supervisor duties related to contacting the utility company and de-energizing powerlines adjacent to the work area.

At trial, the employer presented three experts: two former OSHA agency technical-interpretation and code-enforcement managers and an industry expert who served on OSHA federal and state standards-writing-and-reviewing committees. Their testimony on the safety rule, on industry safe practices, job divisions under the safety rule, exemptions and the compliance of employer safety programs in effect was excluded as irrelevant at trial. On appeal, the reviewing Board Of Industrial Insurance Appeals reversed the decision. In its unanimous decision, the board determined that expert witnesses’ testimonies were relevant and helpful in resolving these type of citation-appeal issues.

In the board’s words:

“We reviewed the testimony of the expert witnesses, Mr. Sicklesteel, Mr. Lemon and Mr. Parker. Their testimony was helpful to the trier of fact in understanding the technical aspects of the crane-assisted lift operation. Mr. Lemon’s testimony aids in analyzing the safety rule. Mr. Parker’s testimony assists in determining facts at issue, specifically whether Sicklesteel was the lift director or site supervisor and thus responsible for contacting the utility company. After carefully reviewing the entire record and considering the arguments of the parties, we conclude that the testimony of Thomas Sicklesteel, Charles Lemon and Robert Parker should be removed from colloquy and admitted as evidence.

“We now turn to the substantive issues in this appeal. We agree with our industrial appeals judge that the department failed to make a prima facie case on alleged violation 1-2 concerning an inadequate safety program, cited as serious under WAC 296-155-110(2). The record establishes that on the date of the alleged violation, Sicklesteel did have an adequate safety program in place. This alleged violation should be vacated.

“We also agree with our industrial-appeals judge that the department failed to make a prima facie case as to the alleged violations 1-1a and 1-1b, which were cited as serious under WAC 296-155-53408(2)(d)(i) and WAC 296-155-53408(2)(d)(ii). But our reasoning differs from the reasons set forth in the Proposed Decision and Order. These allegations addressed employer duties and responsibilities when operating cranes under power lines. Both of these alleged violations were premised on the employer being the lift director and/or site supervisor as defined at WAC 296-155-53401(1).

“Mr. Lemon testified that Service Electric took many steps to ensure their employees’ safety, including developing a lift plan, holding a planning meeting, determining exactly where the energized power lines were, assigning several dedicated spotters, and contacting the utility company and obtaining the exact voltage of the power lines. Mr. Parker explained that the lift director or site supervisor had the duty to contact utility companies, and the lift director’s duties or responsibilities were not applicable to Sicklesteel in this situation. Mr. Sicklesteel explained that a lift director starts by defining the work zone where the crane is going to work and identifying the hazards, such as power lines. Sicklesteel did not create a lift plan for this lift. Here, it is unrebutted and uncontested that Service Electric employee Andy Johnson was the lift director and the site supervisor. In addition, Mr. Sicklesteel testified that no managers or supervisors from Sicklesteel were in attendance at any project safety meetings or were present on the work site when the lift was made.

“Taken as a whole, the record shows that the department failed to prove that Sicklesteel knew, or could have known, of the alleged violative condition of energized power lines. The department also failed to prove that Sicklesteel had actual knowledge because there were no Sicklesteel managers on site, and failed to show that Sicklesteel was responsible for contacting the utility company to arrange for the power lines to be de-energized.

“Sicklesteel was not the lift director or the site supervisor. It did not have responsibility to get power lines de-energized or show that its compliance was infeasible. Sicklesteel had no knowledge on the alleged violative condition. The department failed to establish a prima facie case, and items 1-1a and 1-1b should be vacated.”

Upon this decision, the agency has 30 days to appeal.

Case 2

Excellent workers comp experience ratings/MOD factors help an employer defeat six “willful” citations.

In a fall-protection case, the agency cited a prior-cited employer with six willful citations. The employer’s defense evidence included an experience factor calculated on its historical workers-comp injury rate. That evidence revealed a good record. On the basis of this favorable evidence, a few no-violation inspections and safety experience, the state OSHA case-trial judge ruled that:

“Between May 6, 2009, and March 13, 2014, there were 16 inspections with only five resulting in fall-protection violations; six of those inspections resulted in no violations at all.

“Further, a review of Exhibit Nos. 83 and 84 reveals that this firm’s experience rating has been below 1.0 every year since 2008 and below 0.8 since 2010. An experience rating of less than 1.0 means that the employer has lower accident costs than the average employer in its class. We agree that an experience rating below 0.8 does not reflect a disregard for the safety of its workers, and the entire record persuades us that this employer did not act with plain indifference to safety requirements.”

For a copy of either of these cases, please contact Ehlke Law Offices.

Factors Influencing OSHA Citation Settlements

Along with other lawyers, I presented a seminar in Cleveland on OSHA/WISHA enforcement and settlement developments. At that seminar, Elliott Furst, senior counsel and assistant attorney general of Washington state’s Labor and Industries Division, gave a helpful presentation, “Working with the Attorney General’s Office in WISHA Cases.”

Here is how Furst described his office’s settlement-litigation policy on citation appeals: “In every case, we are consciously trying to determine what approach will ultimately yield the best result for worker safety.”

In most cases, for the reasons discussed below, a creative settlement ultimately will achieve more for worker safety, according to Furst, than litigating a case at the state’s Board of Industrial Insurance Appeals, which is Washington’s equivalent to the federal OSHA Act Review Commission.

These factors, offers Furst, determine whether a WISHA case should be settled at the board:

  • Is there a better than 50-percent chance that the WISHA department will prevail on major violations? Taking a weak case to the board hurts the department’s long-term credibility, and ultimately hurts its enforcement efforts, thus lessening worker safety.
  • Is the employer willing to take significant extra steps not required by Washington Administrative Code rules that will improve safety in a meaningful way? This usually will involve agreeing to do something that the board could not order an employer to do. The extra steps in a settlement do not have to be directly related to the violations on appeal. It is more important that they provide genuine improvements to safety that truly will make a difference.
  • If employers complying with WISHA rules are at a competitive disadvantage, then less employers will comply with the rules, resulting in a loss of protection to workers.
  • As part of a duty to maintain a level playing field, it is important that WISHA cases with ‘bad actors’ are the highest priority for litigation. Cases with bad actors should either not be settled, or the settlement terms should be based on a determination that the settlement will do more to level the playing field than the expected results of a board hearing. Most WISHA appeals do not involve bad actors. The state’s attorney general’s office consciously attempts to settle cases with most employers to free up attorney resources to prosecute bad actors.
  • Recent years have seen a trend of employers appealing solely because they do not want a serious violation on their record due to its impact on insurance, bonding and bidding. Many employers now are willing to spend $50-75,000 litigating a $3000 penalty, merely to either get the serious violation off of their record, or to tie up the case in litigation for several years before they have to report the violation. Appeals filed and litigated solely to reduce the violation classification have come to dominate the AG WISHA caseload.

In our law office’s experience, the extra steps referred to by Furst are most easily recognized by OSHA and state-OSHA agencies for settlement when they involve major extra training, extra monitoring or significant safety-program expenditures (especially for extra PPE or voluntary machine guarding beyond the standards) when they are not related to the citations. Otherwise, enforcement agencies can simply reject them as abatement steps instead of recognizing them as catalysts for settlement.

“We cannot settle cases in a manner that will merely encourage more appeals and increase our workload,” says Furst. “So, provide us with either reasons why the department’s case is weak or what extra steps your client will take that will exceed the benefits of the department prevailing at a hearing.

”What are some of the extra steps an employer might consider offering?

  • Hiring a consultant to conduct comprehensive inspections of the cited employer’s facilities, including uncited, uninspected facilities.• Spending five-figure amounts on new or additional safety equipment.
  • Implementing a comprehensive PPE enforcement policy.
  • Adopting a best-practices safety program and procedures that the agency can use to educate the industry.
  • Working with an industry association to develop new safety or guarding technology.
  • Hiring additional safety-program personnel and agreeing to retain them as full-time employees for at least five years.
A review of these settlement ideas and factors can be helpful for employers preparing to participate in the informal conference and other case stages. For a copy, call Ehlke Law Offices. MF

 

Related Enterprise Zones: Management


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