A Florida construction company was issued willful citations alleging failure to provide cave-in protection to employees working inside an excavation that contained unstable soil, and allowing excess soil to be placed too close to the edge of a trench wall. The company was also issued serious citations alleging failure to adequately train employees, exposing workers to hazards from ductile iron pipe being lifted overhead and allowing employees to use a ladder of insufficient length on an unstable surface. Proposed penalties total $155,000.

[John Carlo Inc., Naples, FL. Release number 08-188-ATL (048), Feb. 28, 2008].

A New York building developer was inspected in response to employee complaints. The citations address a variety of hazards involving the removal of insulation and floor tiles containing asbestos, chemical hazard communication, flammable chemicals, fire protection, electrical safety and a lack of PPE for employees.

[State Assets LLC, Brooklyn, NY. Release number 08-1756-BOS/BOS 2008-356, Dec. 1, 2008].

A worker was trying to clear a blockage in a piping system that was connected to a “trim chopper.” His right hand was drawn into the trim chopper, which was fully energized, and his index and middle fingers were amputated. His employer pleaded guilty to failing to ensure the worker was adequately trained and supervised to safely operate the equipment and was fined $42,250.

[Winpak Ltd., Govt. News Release, Oct. 27, 2016]

A correctional officer did not have the right to delay her employer’s investigation of her work refusal for two hours while her preferred union representative attended to “personal” matters.

The correctional officer’s union was nearing a strike deadline. The employee and five other correctional officers attended at work and engaged in a work refusal when they learned that 50 of their colleagues had called in sick and that the institution was being run by management on that day.

The employer advised that it wished to engage in a “Stage 1” work refusal investigation. The employee asked for a certain union representative to assist her, and asked to wait two hours while that union representative, who was not at the workplace at that time, attended to personal matters. The employer advised the six correctional officers that if they did not participate in the investigation, they would be deemed to have abandoned their work refusal, which the employee took as a “threat”.

The other five officers agreed to have another union representative assist them, but the employee did not. She then filed a reprisal complaint with the Ontario Labour Relations Board alleging that the employer’s “threat” was a reprisal that violated the Occupational Health and Safety Act.

The OLRB disagreed. The OLRB noted that the OHSA required the employer to investigate the work refusal “forthwith” after the work-refusing employee has “promptly” reported it.  The OHSA also provided that any representative of a work-refusing employee “shall attend without delay”. As such, the employee had no right to representation, in the work refusal investigation, by a union representative who was not in the workplace and not available for two hours.  As a result, the employer’s “threat” did not violate the OHSA as the employer was not threatening the officer for engaging in a work refusal per se, but rather for holding up an investigation which the OHSA requires to be conducted “forthwith”.  The employer was entitled to tell her that her refusal to participate in the work refusal process in a timely manner could be taken as an abandonment of the work refusal which could lead to disciplinary consequences if the employee continued to refuse to work.
[Lynda Kathleen Gough v Elgin-Middlesex Detention Centre, 2016 CanLII 74661 (ON LRB)]

OSHA conducted an inspection after an employee was struck by a rock while working in an unprotected trench at a site in McDonough, GA. The company was issued three repeat citations alleging that it allowed employees to work in a trench lacking adequate cave-in protection, did not have a means of exit within 25 feet of where employees were working and had not been inspected by a competent person prior to employees entering it after blasting. Similar violations were cited against the same company by OSHA after a 2005 inspection. The company has also been cited for serious violations alleging failure to plan for a medical emergency in case of a serious injury, deviating from a manufacturer’s installation instructions for a trench box and failing to protect employees from a trench cave-in while installing a ladder. Two other-than-serious violations pertaining to recordkeeping issues were also cited. Total penalties of $136,200 have been proposed by OSHA.

[Gary’s Grading & Pipeline Co., Monroe, GA. Release Number 07-1534-ATL (343), Nov. 1, 2007]

Town charged with five OHS violations in connection with serious injuries suffered by a worker buried in a collapsing trench. The town is charged with improper training and shoring.

[Town of Deer Lake, Govt. News Release]

A truck driver was backing up when he struck a worker on the running board of another truck, causing the worker to fall off. After the worker fell, the truck rolled over him and killed him. The victim was wearing a red and yellow safety vest and was gesturing to the truck driver to move over. The truck driver was found guilty of operating equipment in a manner that endangered another worker and operating a vehicle without the assistance of a signaler.

[Truck Driver, MOL News Release]

A refinery in Georgia is facing $110,000 in proposed penalties for 25 alleged serious safety violations. Allegations include failure to take adequate precautions when working around combustible liquids, failure to inspect and test process equipment in accordance with good engineering practices, inadequate emergency response plans, inaccurate pipe and instrumentation diagrams and failure to inform contractors of known hazards.

[CITGO Asphalt Refining Co., Savannah, GA. Release number 08-822-ATL (154), July 15, 2008].

An OSHA inspection found 24 alleged serious violations, most of which relate to deficiencies with the company’s process safety management (PSM) program, an OSHA requirement for preventing the catastrophic release of hazardous chemicals. Other alleged violations include the lack of hoist system inspections, unguarded floor holes, lockout/tagout deficiencies, unguarded belts, pulleys and sprockets and electrical hazards. Penalties totaling $124,500 have been proposed.

[Hiland Dairy Foods Co., Wichita, KS, Sept. 28, 2009]

In the aftermath of Danvers, MA blast that damaged 270 buildings but caused no serious injuries or deaths, OSHA alleges that the companies violated standards governing the storage, transfer and use of flammable liquids. C.A.I. Inc., a manufacturer of solvent-based printing inks, has been cited for failing to undertake safe management of processes utilizing more than 10,000 pounds of flammable liquids. Both C.A.I. Inc. and Arnel Co. face citations alleging failure to have flammable liquid storage tanks vent to outside the building, inadequate ventilation in areas where flammable liquids were mixed and failure to limit the spread of flammable vapors. The companies also were cited for storing and transferring flammable liquids in the production area, use of unapproved forklifts in flammable areas, and fire doors that were routinely closed and not properly reset in the open position. C.A.I. was cited for improper transfer of flammable liquids and for not ensuring that all piping and connections to storage tanks were able to prevent leaks during fires. In addition, the company was cited for not meeting requirements of OSHA’s Process Safety Management standard, including not developing a hazard analysis for mixing processes, not training and involving employees in process safety management, not certifying that its operating processes were current and accurate, and a lack of procedures to manage changes in the process. Arnel, a solvent-based stains and coatings manufacturer, was cited for having an emergency exit route that passed through a high-hazard area, improper disposal of flammable cleaning rags, unlabeled underground storage tanks and failure to develop a safety and health program to minimize fire and explosion risks for employees working with large amounts of flammable liquids. C.A.I. faces $18,000 in proposed fines, while Arnel Co. faces $14,100 in proposed fines.

[C.A.I. Inc. and Arnel Co., Danvers, MA. Release Number 07-815-BOS/BOS 2007-151, June 7, 2007]

An OSHA safety inspection resulted in citations for 34 serious violations alleging improper storage of flammable liquids, failure to use approved pumps to dispense flammable liquids, failure to properly mark exits and covering spray booth sprinkler heads with plastic bags. Several repeat violations, ranging from defective emergency brakes on a forklift to machine guarding hazards, are also alleged.

[Six Flags Theme Parks Inc., Gurnee, IL. Release Number 07-1367-CHI, Sept. 10, 2007]

The company was cited for repeat violations alleging that machinery lacked proper safety guards and that management had failed to perform and certify periodic inspections of its energy control procedures. The serious violations allege that employees were exposed to electrical hazards while using defective equipment cords. One other-than-serious citation alleges failure to correctly maintain OSHA Logs. Proposed penalties total $52,000.

[Goodyear Tire and Rubber C., Social Circle, GA. Release Number 07-1955-ATL (010), Jan. 14, 2008]

A Saskatchewan steel company is fined after a worker is seriously hurt in a machine entanglement incident.

Evraz Regina Steel of Regina, SK, has been fined $60,000, the largest OHS penalty issued in Saskatchewan in the 2011/2012 year, in connection with a serious injury.

A worker was badly hurt in January 2009 after becoming entangled in the motor drive shaft of a crane hoist. Evraz pleaded guilty to failure to ensure that there was an effective safeguard in place to prevent workers from contacting a dangerous moving part of a machine.

Another charge against the company was dropped in Regina Provincial Court.

The company is facing $148,500 in proposed penalties for several alleged willful violations, including fall hazards, multiple respiratory protection program violations, and confined space program violations. Alleged serious violations cited by OSHA address issues such as noise monitoring, smoking in a spray room, no lockout/tagout training, unsafe stacking of steel tanks, hazardous compressed gas cylinder placement, excessive toluene exposures and no chemical hazard communication training.

[Mid-South Steel Products Inc., Cape Girardeau, MO. Release Number OSHA 07-1541-KAN, Oct. 11, 2007]

OSHA is proposing $102,000 in fines against a company for alleged repeat and serious violations. The repeat violations allege failure to enforce hazardous energy control, apply a lock on an energy isolation device, guard the point of operation on a jag press, ensure adequate protection against welding rays and against airborne overexposures to silica and failure to implement engineering or administrative controls for silica overexposures. The serious violations allege failure to provide adequate training on hazardous energy control, flashback protection of fuel-gas torches, to have procedures for the selection of respirators, to provide inspection, maintenance and cleaning procedures for respirators, measures to prevent overexposure to hexavalent chromium and proper training for airborne exposures to cadmium and lead.

[Columbus Steel Castings Co., Columbus, OH, Nov. 2, 2009]

OSHA opened an investigation following the death of an employee in January and later expanded it to cover the entire facility. The company was cited for willful failure to protect all open-sided floors and work platforms from potential fall hazards. OSHA also cited 16 alleged serious violations including machine guarding and energy lockout hazards and training, and health monitoring deficiencies. Two repeat citations were issued for failure to lock out hydraulic and electrical energy where necessary. Proposed penalties in this case total $163,000.

[Republic Engineered Products Inc., Lorain, OH. Release Number 07-1024-CHI, July 11, 2007]

OSHA inspected a Sunoco refinery in Marcus Hook, PA, and issued five repeat and 20 serious citations carrying total proposed penalties of $202,000. The repeat citations allege failure to maintain diagrams that accurately reflect refinery piping structures and equipment, failure to develop and implement adequate written operating procedures, and failure to update process safety information. The serious citations allege deficiencies in the company’s process safety management (PSM) system.

[Sunoco Inc., Philadelphia, PA]

OSHA opened an investigation following a May 2009 ethylene complex explosion at a refinery and issued one repeat violation for failure to establish and implement written procedures to maintain the ongoing mechanical integrity of process equipment. Two serious violations were issued for deficiencies in the company’s process hazard analysis. Total fines of $32,000 have been proposed. [Sunoco Inc., , Marcus Hook, PA, Dec. 3, 2009]

Complying with OSHA regulations is often a burdensome process. So it might be tempting for supervisors to cut corners, especially when they’re under pressure to get a job done fast and efficiently. Hopefully, none of your supervisors are inclined to feel, let alone give in to such temptation. Unfortunately, however, there are supervisors who are willing to deliberately violate an OSHA rule in the interest of expediency, even if it jeopardizes the safety of their workers. Suppose a supervisor takes such a chance and it results in an accident. Clearly, the supervisor has committed a deliberate violation. But OSHA doesn’t apply to supervisors-only to their employers. Should the supervisor’s employer be held liable for committing a willful violation?

A case from Florida sheds light on how courts and administrative tribunals like the Occupational Safety and Health Review Commission (OSHRC) answer this question. Here’s what happened.

THE CASE

What Happened: A contractor was hired to install a sewer line under a public roadway in Jacksonville. At one location, the line would have to be installed 12 feet under an existing gas line that ran perpendicular to the sewer line. The trenching used to install the sewer line before the point of intersection complied with OSHA standards. But when the trenching reached the gas line, the supervisor deliberately decided not to slope it. As he would later testify, “we only had one jointed pipe to put in and we thought we could get it done in 15 minutes” before a cave-in could occur.

Sadly, the gamble didn’t pay off. While two workers were installing the pipe in the unshored trench, a large ball of clay became dislodged and fell on top of them. One of the workers was killed.

The Issue: OSHA cited the contractor for two violations, including willful failure to protect workers in an excavation against cave-ins under Section 1926.652(a)(1) of the OSHA excavation standard. The contractor blamed the accident on the supervisor and denied liability for the violation.

What OSHRC Decided: OSHRC rejected the contractor’s defense, found it liable for a willful violation of the excavation standard and upheld a $50,000 fine [Secretary v. John Carlo, Inc., OSHRC Docket No. 04-1405, May 22, 2006].

ANALYSIS

The contractor tried unsuccessfully to use two defenses to separate itself from the supervisor’s actions.

Attribution: Persons are guilty of a willful violation if they act intentionally, knowingly or in voluntary disregard for the requirements of the law. These are states of mind. How can an entity, as opposed to an individual, have such a state of mind? Answer: Courts look at what was on the minds of the company’s agents, that is, the individuals representing the company. In this case, it was easy for OSHRC to “attribute” a willful state of mind to the contractor. The supervisor who ordered the work done in the unsloped trench was the contractor’s agent. He knew full well that he was violating the OSHA standard. In other words, he showed intentional disregard for the trenching standard. In addition, OSHRC noted that corporate officials at the contractor company knew what the supervisor was up to and approved his actions.

Unpreventable Employee Misconduct: An employer can also avoid liability for an OSHA violation by proving that it was the result of unpreventable misconduct by an employee, in this case, the supervisor. There are four things an employer must prove to establish this defense. The contractor in this case failed to make out even one of the requirements:

• Established Work Rules: First, the employer must show that it had established work rules to prevent the violation. The contractor in this case did in fact have trenching rules but they were filled with errors.
• Adequate Communication of Rules to Employees: Although the contractor passed out its safety manual and held occasional tool talks, it made no effort to verify that the training was understood and failed to document who had received training.
• Taking Steps to Discover Violations: This requirement includes not just sniffing out violations but fixing them once you find them. Officials of the contractor company knew that the supervisor was planning not to slope trenches upon reaching the gas line but didn’t order him to correct the violation.
• Effective Enforcement of Rules against Violators: The contractor didn’t manage to clear this hurdle, either. Although the supervisor was fired after the incident, misconduct wasn’t listed as the official reason. On the contrary, the contractor gave the supervisor high final performance ratings and indicated in the separation notice that it would be prepared to rehire him.

As a supervisor you may or may not be very high up the totem pole in your company or organization’s hierarchy. But whether you are in a line-level position or a senior safety manager, you may be held liable if a worker is seriously injured or killed on the job.

Jeremy Warning, a former prosecutor who now works as a senior associate at Heenan Blaikie, an occupational safety and health law firm in Toronto, ON, says workplace health and safety inspectors key in on the actions of supervisors when unsafe or unhealthy conditions are found during inspections or accident investigations.

In occupational safety and health enforcement, Warning sees a trend toward safety inspectors/investigators going after not only companies, but also individual supervisors whose actions or lack of actions contribute to worker injuries or deaths.

While Warning is observing the trend from a Canadian perspective, Canada certainly is not alone in prosecuting individuals. For example, the owner of a California print shop and a pressroom manager were both charged with involuntary manslaughter after a 26-year-old pregnant employee was crushed to death in a creasing and cutting machine. The men pleaded not guilty to the charges during a late October, 2010 court appearance.

Here are a couple of Canadian examples:

The general superintendent of Toronto Transit Commission, who headed a department with 400 workers and was three supervisory levels removed from a crew working in a subway tunnel, was determined to be a “supervisor” after several members of a subway crew suffered carbon monoxide poisoning. However, he was acquitted at trial after a judge found he had shown due diligence.

The lead hand of a grass-cutting crew was determined to be a supervisor after a student worker suffered a serious foot injury as a result of his foot slipping under a lawn mower while the machine was running. The lead hand had taped a lawnmower’s dead-man bar to the handle to keep the motor and blade running when the mower was unattended. The “supervisor” was fined $500 for failing to ensure a worker’s safety.

Warning says factors that determine whether a supervisor will be charged include:

The safety breach’s degree of seriousness. How responsible the supervisor was for what happened, such as whether a worker was ordered to use unsafe equipment that the supervisor knew was unsafe, and then became hurt as a result. The potential for harm and the actual harm involved stemming from unsafe workplace conditions. The need to send a message to other supervisors that an uncaring attitude toward safety will not be tolerated by the courts.

“If you have actual hands-on authority, the courts won’t hesitate to find there is a supervisory role there,” says Warning.

Employers have an obligation to provide appropriate and competent supervision of workers and “supervision may also be expected as part of an employer’s duty to take all reasonable care to protect workers.”

Warning says prosecutors are looking closely into whether supervision levels are adequate, including whether a supervisor is overextended and can’t possibly cover all aspects of his or her job. They are also delving into a supervisor’s level of competence, including understanding and following occupational safety/health regulations and understanding hazards and knowing how to protect workers against them.

His advice to supervisors who want to cover their bases in the event of an inspection or investigation is “document, document, and document.” That means supervisors should be keeping daily notes of their activities with respect to training and measures they have taken to address safety issues.

OSHA opened an investigation after an employee of Quala Systems Inc.’s QualaWash tank-washing subsidiary died shortly after entering an oxygen-deficient chemical container at the company’s facilities in Garden City, GA. Serious violations cited by OSHA include failure to provide employees with proper training and respiratory protection, failure to provide workers with adequate respiratory equipment for tanks containing air contaminants, and failing to monitor the workspace prior to entry. OSHA says these failures directly contributed to the employee’s death from asphyxia.

[Quala Systems Inc., Tampa, FL. Release number 08-98-ATL (025), Feb. 1, 2008]

An inspection of a crude oil refinery in Big Spring, TX has resulted in OSHA citations for three alleged repeat violations associated with process safety management. Twenty-seven serious violations were also issued for alleged hazards associated with process safety management, confined spaces, control of hazardous energy, portable fire extinguishers, emergency response and evacuation, electrical deficiencies, chemical storage and walking/working surfaces.

[ALON USA LP, Big Spring, TX, Oct. 1, 2009]

WASHINGTON, DC – The Occupational Safety and Health Administration (OSHA) announced on March 2, 2018 that it will start enforcement of the final rule on occupational exposure to beryllium in general, construction, and shipyard industries on May 11, 2018.

This timeframe will ensure stakeholders are aware of their obligations, and that OSHA provides consistent instructions to its inspectors. The start of enforcement had previously been set for March 12, 2018.

In January 2017, OSHA issued new comprehensive health standards addressing exposure to beryllium in all industries. In response to feedback from stakeholders, the agency is considering technical updates to the January 2017 general industry standard, which will clarify and simplify compliance with requirements.

OSHA will also begin enforcing on May 11, 2018, the new lower 8-hour permissible exposure limit (PEL) and short-term (15-minute) exposure limit (STEL) for construction and shipyard industries.  In the interim, if an employer fails to meet the new PEL or STEL, OSHA will inform the employer of the exposure levels and offer to help assure understanding and compliance.

Train the Trainer – Tips for Presenting

 When Communicating Safety – Keep Statistics Simple

From 1996 to 2000, the top five accident types for Company A in the field servicing sector were:

• struck by – 16%
• motor vehicles – 11%
• falls from elevation – 10%
• musculoskeletal – 22%

Meanwhile, Company B in the drilling sector reported these figures:

• struck by – 16%
• falls from elevation – 22%
• caught in object – 10%
• musculoskeletal – 22%

Not by the Numbers

Now, without looking, can you repeat all but a couple of those statistics accurately? Probably not. No doubt they left an impression, perhaps even a surprise, but by the time you got to the last one it was time to move on. No more numbers!

Statistics can be made to do all kinds of things, including bore people to distraction, which is the last thing you want to do during a safety meeting. Reeling off endless facts and figures won’t give your audience what it wants and needs. People aren’t going to respond enthusiastically to pure information; they want to know why it is significant and how they can use it.

Using Stats Effectively

That’s not to say you should never use statistics. Far from it. Presented sparingly and well, they can help get your message across. Here are some suggestions to help make your training more engaging and effective.

1. The most common way to make statistics more interesting is with graphs, bar charts and the like. But don’t expect these to do the entire job. Some people have difficulty spotting the trends these illustrations are supposed to show.
2. Also, unless there’s an important reason to give exact numbers, round them out. For example, 64% can translate into “nearly two-thirds”. And drop the decimal points. “Slightly more than half” can be a lot more digestible than 53.2 percent.
3. Here’s two suggestions from well-known safety training expert Richard Hawk:
   1. “Whenever you use statistics in your presentations, think of how you can make them meaningful for your audience. Rather than simply reciting the fact that, say, 50% of North Americans will experience at least one bout of serious back pain in their lives, divide your group in half, somehow indicating one side to be back pain sufferers.
   2. “Break down your lost-time incident rate to show how much it increases the chances of a person in the room getting seriously injured when it rises. That way, employees will realize that the ‘numbers’ can affect their life and happiness.”

Conclusion

To be an effective safety leader, you need to be able to arouse enthusiasm in your crew—enthusiasm for working safely and well. And that means you need to be able to communicate effectively. In short, doing the math is fine. Just make sure it’s presented to your employees in a way that is meaningful and relevant to them.

Scaffolding violations topped the list of OSHA violations in 2009, with 9,093 violations cited. OSHA says scaffold accidents most often result from planking or supports giving way, or because of employees slipping or being struck by falling objects.

According to OSHA, the number of top 10 violations has increased by almost 30 percent compared to 2008.

The other top OSHA violations cited during 2009 were as follows:

2. Fall protection: 6,771 violations. OSHA says any time workers are at heights of four feet or more, they are at risk for falling and need to be protected. Fall protection must be provided at four feet in general industry, five feet in maritime industry and six feet in construction.

3. Hazard communication: 6,378 violations. Chemical manufacturers and importers are required to evaluate the hazards of the chemicals they produce or import and they must prepare labels and safety data sheets to convey the hazard information to their downstream customers.

4. Respiratory protection: 3,803 violations. Respirators protect workers against insufficient oxygen environments, harmful dusts, fogs, smokes, mists, gases, vapors and sprays. These hazards may cause lung cancer, lung impairment and other diseases or death.

5. Lockout/tagout: 3,321 violations. Lockout/tagout refers to specific practices and procedures to safeguard employees from the unexpected startup of machinery and equipment, or the release of hazardous energy during service or maintenance activities.

6. Electrical (wiring): 3,079 violations. Working with electricity can be dangerous. Engineers, electricians and other professionals work with electricity directly, including working on overhead lines, cable harnesses and circuit assemblies. Other employees, including office workers and sales people, work with electricity indirectly and may also be exposed to electrical hazards.

7. Ladders: 3,072 violations. Occupational fatalities caused by falls remain a serious public health problem. The US Department of Labor lists falls as one of the leading causes of traumatic occupational deaths, accounting for eight percent of all occupational fatalities from trauma.

8. Powered industrial trucks: 2,993 violations. Each year, tens of thousands of injuries related to powered industrial trucks (forklifts) occur in US workplaces. Many employees are injured when lift trucks are inadvertently driven off loading docks, lifts fall between docks and unsecured trailers, workers are struck by lift trucks or when workers fall while on elevated pallets and tines.

9. Electrical (general): 2,556 violations. (See point number six above).

10. Machine guarding: 2,364 violations. Any machine part, function or process that may cause injury must be safeguarded. When the operation of a machine or accidental contact injuries the operator or others in the vicinity, the hazards must be eliminated or controlled.