Boss said waiting to confront worker was a ‘judgment call’

by on July 17, 2012 · 0 Comment POSTED IN: Workplace Safety Network

“What’s the problem?” asked Project Manager Mike Flint. “You pointed out Hector wasn’t wearing fall protection, and I fired him on the spot.”

“That was yesterday,” said OSHA inspector Mary Lewis. “Isn’t that Hector back on the roof right now?”

“Hector’s got a wife and kids,” said Mike. “What am I supposed to do – let them starve? He called me last night and asked for another chance. I gave it to him.”

Still a violation
“It’s fine to be compassionate,” said Mary. “But it raises questions about the seriousness of your disciplinary procedures.”

“I knew keeping Hector on the job here would come back to haunt me,” said Mike. “I’ve warned him over and over again. But he’s a good worker and he’s trying to take care of his family …”

“So you only get tough on him when an OSHA inspector shows up,” asked Mary.

“There’s more to it than that,” said Mike. “We were in violation of the letter of the law. But I’ve been doing this for years, and my best professional opinion is that Hector was in no danger when you showed up.”

Mary did a head snap.

“OSHA fall protection regulations are mandates,” said Mary. “If workers face a fall of up to six feet, you must provide some kind of fall protection. Hector was exposed to a fall of 16 feet.”

‘No real danger’
“Exposed?” asked Mike. “He was in no real danger. It was a flat, dry roof, working by himself, no debris, good walking surface, and it was quiet. Yes, he was close to the edge. But the only way he’d fall off that roof was if he jumped.”

“So why did you fire him?” asked Mary. “You’re changing your story.”

“No, I’m not,” said Mike. “Hector was supposed to wear fall protection as the regs say. But once I inspected the conditions and saw him up there, I figured I’d let him have it later. He was safe. You can see that.”

“This is a willful violation,” said Mary. “I’m sorry, but you can’t …”

“Use my judgment?” interrupted Mike.

Was the willful designation upheld?

Yes, the OSHA Review Commission upheld the willful designation and the company faced a heavy fine.

“When confronted with the unambiguous mandates of the standards, [the supervisor] would claim he had some leeway or discretion or that it was his judgment call whether or not to comply with the standards,” the OSHA judge ruled.

“He made it evident he did not consider OSHA’s standards to be binding on him or his employees.”

Specific regs are mandatory
OSHA’s specific regulations, such as fall protection, have mandatory requirements. No leeway allowed. In this case, the applicable clause was 1926.501(b)(1): “Unprotected sides and edges.”

“Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”

Sixteen feet is a violation; the supervisor knew about it and didn’t stop it, meaning he showed “plain indifference” to the OSHA Act. Fine: $28,000.

Cite: Secretary of Labor v. Virginia Construction & Management Co., No. 11-0328, OSHRC.

Click to View Comments

Leave a Reply


Request a Free Demo

We'd love to show you how this industry-leading training system can help you develop your team. Please fill out this quick form or give us a call at 877-792-2172 to schedule your one-on-one demo with a Rapid Learning Specialist.