Page 50 - MetalForming January 2014

You and The Law
By Douglas B.M. Ehlke
It’s All About the Willfuls (and Repeats) at OSHA
Fall is traditionally the busy season for OSHA enforce- ment inspections and trials, and the end of 2013 brought with it a rebound in the number of willful and repeat citations. Six- and seven-figure OSHA-proposed penal- ties were commonplace, especially following accidents or fatalites.
Willful violations these days abound with “egregious” label multipliers of the typically maximum penalty of $70,000, reaching staggering levels alleged violations involv- ing machine guarding, lockout-tagout, personal protective equipment, confined space, OSHA 300 log entries and trenching.
How do OSHA agencies calculate massive proposed penal- ties? Egregious penalty bases include:
Dismissals Do Happen
Sometimes it pays to stick up for your rights against bad citations. During last October and November, we experi- enced citation dismissals for clients totaling nearly $3 million, for some 40 willful violations in three industries and includ- ing several repeats. Appeals taken by the agencies of these dis- missals have been denied. Citations were vacated largely because:
• Standards were misapplied and misinterpreted, espe- cially general performance standards that contain no specific compliance method. Rather, they are designed to allow employers “flexibility” in their selection and implementation of effective compliance methods.
• The employer complied with the standards.
• The agencies lacked sufficient proof of the alleged violations.
• A prior case established that the cited standard was interpreted contrary to the new citation.
• Safe engineering and/or practices were in place.
• Written safety-program procedures were in place and met the standard.
Along this journey we discovered some amazing revela- tions. First, one state-OSHA inspection supervisor reversed an inspector’s first closing conference and single serious classification citation recommendation. Instead, he ordered a second closing conference to double the citations and (in his words) dropped the “W bomb” classification for both cita- tions. He then instructed the inspector to take a second agency person to the second closing conference, held just before Christmas.
In another case, a judge observed that an employer had voluntarily requested consultation inspections from the agency multiple times, and had received the highest scores possible for compliance, hazard control, management com- mitment to safety and safety training. Under such circum- stances, the agency’s “average” or “poor” penalty rating dis- count factor was inappropriate, and so were the willful citations. Summary judgment motions of pre-trial dismissal were repeatedly granted where the cited general standards did not apply. One willful against a written safety program, which had previously been litigated by our office and held not a violation under the same standard, could not be re-litigated.
The risk and future adverse impact of citations should be closely examined within the 15-working-day appeal period, especially when the standards have been misapplied; where good-faith compliance efforts can be demonstrated; and where a resolution of overcharging citations or penalties are apparent. MF
• Per (similar) machine allegedly unguarded
• Per employee exposed, and
• Per “instance” of occurrence, where the standard allows per-instance viola- tions.
In addition to the
of such willful citations can lead to agency demands to seek to hire more full-time safety personnel, or even compre- hensive third-party safety consultants.
Repeat citations, which also can carry $70,000 maxi- mum penalties, can flow from previous unappealed or final order citations issued under the same standards, or from settlements with affirmed citations. They also can result from past citations in an employer’s same facility location or even from the employer’s facilities in distant state-OSHA locations, or in any other federal OSHA jurisdiction.
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
dehlke@ehlkelawoffices.com
“Abatement of such willful citations can lead to agency demands to seek to hire more full- time safety personnel.”
payment of huge penalties, abatement
48 MetalForming/January 2014
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