Update on final review commission decisions

In Q3 2021, to date, the Commissioners of the Occupational Safety & Health Review Commission have released three final decisions further to a Petition for Discretionary Review.

In Roy Rock, LLC, a lock-out-tag-out case, the employer was cited following an incident in which a worker was injured while bending rebar on a construction site, using a machine for that purpose.

The case turned on the interpretation of “maintenance” under the general industry standard 29 C.F.R. § 1926.702(j)(1), which provides:

No employee shall be permitted to perform maintenance or repair activity on equipment (such as compressors, mixers, screens or pumps used for concrete and masonry construction activities) where the inadvertent operation of the equipment could occur and cause injury, unless all potentially hazardous energy sources have been locked out and tagged.

Applying a simple dictionary definition of “maintenance” the Commissioners vacated the citation, finding that construction work was involved and not maintenance work. They disagreed with the Administrative Law Judge (ALJ) who, in first instance, had found that the term in the cited provision was ambiguous and covered the actual tasks the worker was in engaged in at the time of the incident.

Home Rubber Company, LP illustrates how a single incident can lead to multiple citations and considerable liability for matters that are not necessarily related to the incident itself.

In this case, an employee was injured when feeding raw material into the steel rollers of a mill and his hand was pulled into the mill’s nip point. Four of his fingers were later surgically amputated. In the immediate aftermath of the incident, maintenance employees cleaned up blood using rags and bleach.

The subsequent investigation by OSHA resulted in “three citations alleging violations of various housekeeping, noise, electrical, forklift, machine guarding, lockout-tagout (LOTO), bloodborne pathogen, hazard communication, and injury reporting requirements”. After a hearing in first instance, an Administrative Law Judge affirmed all citations and assessed the proposed US$180,592 penalty.

On review, the employer had only limited success.

The Commissioners agreed that with respect to the “willful” citation under 29 C.F.R. § 1910.95 (the occupational noise exposure standard) there was no dispute that the company had failed to obtain baseline and annual audiograms for its mill operators for over a decade. Further, the Commissioners agreed that the employer was aware of the audiogram requirements and that noise in its facility posed a hazard. However, they also found that the record did not support a finding that the company had intentionally disregarded those requirements, or acted with plain indifference to employee safety, when it stopped obtaining audiograms. Although it was clear that the company’s testing program had fallen away after its previous safety manager resigned, the Commissioners decided that the simple facts that the facility was noisy and that testing had ceased for some time were not enough to support an inference of willfulness. As a result the “willful” characterization was reversed and a “serious” finding was substituted based on unrebutted evidence showing that the noise levels at facility could cause employees to suffer permanent hearing loss. Noting that at the time of the citation the maximum penalty for a serious violation was US$12,471, and taking into account the small size of the company, a US$10,000 penalty was assessed.

The Commissioners also vacated the citation under 29 C.F.R. § 1910.219(i)(2) relating to a rotating shaft on one of the company’s mills that had unguarded bolts. The concern was that employees’ clothing could catch on the bolts and they could be drawn into the moving parts of the mill. However, on the record, the Commissioners found there was insufficient evidence to prove that any employees had access or were likely to have access to the unguarded bolts.

All other elements of the contested citations were affirmed.

Some of the key takeaways from the employer’s rejected arguments are the following:

• The requirement of annual inspections of energy control procedures under 29 C.F.R. § 1910.147(c)(6)(i) must be done annually, not merely if there is reason to believe that the current procedure is deficient in some way.
• The requirement that forklift drivers be evaluated at least once each three years under 29 C.F.R. § 1910.178(l)(4)(iii) is not met simply by being a small employer where employees are all regularly monitored in their day to day work. As the Commissioners pointed out, the cited provision requires an “intentional and specifically directed evaluation of a forklift operator’s performance that is in addition to the ongoing, casual observations that occur in most workplaces”.
• With respect to the electrical standards citations under 29 C.F.R. §§ 1910.303(b)(2) & (b)(7)(iv) and 1910.305(b)(1)(ii) & (b)(2)(i), the Commissioners rejected the employer’s arguments that these were duplicative in that they arose from the same factual situation, namely a single 2” x 4” receptacle. For the Commissioners, there was no duplication in that each violation required a “distinct abatement method, such that the abatement of any one item would not abate any of the others”. In particular, as the Commissioners wrote: “Item 15(a) requires a receptacle to be mounted to a wall; Item 15(b) requires a broken conduit in a junction box to be repaired; Item 15(c) requires an opening in the receptacle also at issue in Item 15(a) to be closed; and Item 15(d) requires a cover to be added to another receptacle.”
• Finally, as to the citation under 29 C.F.R. § 1910.1030(f)(2)(i), which requires that a Hepatitis B vaccination be “made available . . . within 10 working days of initial assignment to all employees who have occupational exposure [to blood or other potential infectious materials] . . . .” the evidence did not show that the employer had timely offered the vaccination to both employees involved in cleaning up the blood that had been involved in the mill incident noted earlier.

For the citation items not vacated by the Commission, the employer did not contest the US$21,202 total penalty assessed by the ALJ for each item.

Finally, in Armstrong Utilities, Inc. the Commissioners vacated a citation on the basis that the Secretary failed to establish the knowledge element of the alleged violation, reminding employers of the importance of robust safety training and documented safe working procedures.

The employer’s crew had been installing fiber-optic cable on utility poles, when a lineman contacted an energized electrical line. After trial, an ALJ affirmed a serious violation of 29 C.F.R. § 1910.268(b)(7), under the Telecommunications standard, and assessed a US$11,407 penalty.

For the Commissioners, it was clear that the employer failed to comply with the requirement that employees maintain a 24-inch minimum approach distance from energized electrical lines and that none of the exceptions to this rule applied (i.e. insulated gloves/guarding, the lines being insulated or grounded). It was also clear that an employee had suffered electrical shock injuries after contacting the energized line, so the Secretary also proved actual exposure to the hazard in question.

However, the Commissioners found that the record did not support a finding “that the employer knew of the hazardous condition, or could have known through the exercise of reasonable diligence.”

The evidence showed that the injured employee’s supervisor had carried out reasonable pre-work inspections and given adequate instructions as to the work to be done and the safety precautions to be taken. Further, the injured employee had been given adequate classroom and on-the-job training and was experienced and accomplished, such that he was knowledgeable as to how to identify the concerned hazard and how to avoid it.

The Commissioners also found that the employer’s safety manual contained a working rule that reflects the requirements of the cited standard.

In these circumstances, the employer could not be said to have actual or imputed knowledge of the hazardous condition in question.