Can company’s credibility help nix a fine after suffering a tragedy?

by on July 5, 2012 · 0 Comment POSTED IN: Workplace Safety Network

OSHA Inspector Frank Corsi sat in the fatality-investigation closing conference with Safety Director Bob Gaffney, regretting he’d have to issue Gaffney’s company a citation.

This was clearly a good firm that had suffered a terrible tragedy: A supervisor, Vic Briggs, was killed when a bridge girder his crew was installing collapsed: 10 workers fell into a lake. Nine managed to untie their fall protection and swim to safety, but the 10th drowned, still tied to the girder.

“I have to issue you a citation for violating the fall protection standard,” said Frank. “You had more than five men tied off to a lifeline. Two of your workers said so. Your own safety rules state a five-person limit.”

‘Everyone knew the rule’
“There were several lifelines on that girder,” said Bob. “Perhaps all 10 men were tied off to one, but if there were too many on that line, they were violating our safety rules.”

“It looks like all 10 were on one lifeline,” said Frank. “Sorry.”

“Wait a second,” said Bob. “Every man on that crew knew the five-person rule. I can’t tell you if Vic allowed more than five on that lifeline that day, but I can show you Vic’s history of issuing reprimands and disciplining workers who broke our fall-protection rules.”

“I saw the documentation,” said Frank. “It appears Vic was conscientious. But the workers admitted that the company didn’t always catch them.”

“Of course not,” said Bob. “But we didn’t look the other way, if that’s what you’re getting at. If it happened, it was unpreventable employee misconduct.”

“You’re welcome to challenge the citation,” said Frank. “But I think the case is solid.”

“We’re going to challenge it,” said Bob. “But I’d rather you save us the trouble. Compare the strength of our safety program against the word of two workers who admitted they broke known safety rules despite warnings.”

Frank wrote the citation and the company challenged it.

Did an OSHA judge dismiss it?

The Decision
No, the citation didn’t stand up in court.

An administrative law judge, after extensive proceedings, said there wasn’t enough evidence that more than five men were attached to the lifeline.

Key: credibility. The company had more than its accusers. Reasons included:

  • The company possessed a comprehensive, written safety program that was implemented on the project site.
  • Repeated, ongoing efforts to uncover violations, including fall protection.
  • A history of issuing reprimands and exercising progressive discipline when workers broke safety rules. The supervisor had issued numerous reprimands prior to the accident.

The judge noted the OSHA inspector relied on witnesses who didn’t have the same level of credibility. At most, the workers confessed that they and other workers broke safety rules from time to time; they didn’t show the company knew about it and didn’t do anything.

Bottom line: Documented inspections and progressive discipline protected the firm from suffering a fine on top of a tragedy.

Cite: Sec’y of Labor v. Boh, No. 09-025, OSHRC.

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