Was the tragedy caused by misconduct, or poor training?

by on November 6, 2012 · 0 Comment POSTED IN: Workplace Safety Network

“The problem here is not what you say,” said Supervisor Mel Koehner. “The problem is that when workers break the rules, they try to conceal it.”

“No, the problem was the deceased wasn’t adequately trained to stay out of harm’s way,” said OSHA Compliance Officer Deb Reilly. “He was marking lines outside the safe zone – at night – and that’s why an asphalt truck backed over him.”

“He was not marking lines outside a safe zone, he was having a fight with his wife,” said Mel. “He called her right before the accident. Because he knew our safety rules ban the use of cell phones on a work site, he made that call where no one could see him. Looking back, a truck driver couldn’t see him.”

Personal issue
“That’s a guess,” said Deb. “You can’t know he was fighting with his wife.”

“That’s what his co-workers told me,” said Mel. “They said he was upset and had mentioned a fight earlier in the shift. The cell phone records show an eight-minute call to his wife right before the accident. It’s two plus two.”

“Why don’t you ask his wife?” asked Deb.

“I was waiting until after the funeral to interrogate her about the last conversation she had with her husband,” he said. “Just in case she didn’t feel bad enough.”

“No need to get sarcastic,” said Deb. “I understand emotions are running high.”

“I’m sorry,” said Mel. “But I can show you the training sheets that he signed explaining his need to remain within the work zone at all times and to know the current traffic pattern. And no one assigned him to mark pavement outside that safe zone. It wouldn’t make sense to mark the area where he was.”

“Why did he have marking equipment with him?” asked Deb. “He wasn’t trained to safely mark pavement near moving construction vehicles.”

“I don’t know,” said Mel. “Maybe he wanted to make it look like he was doing something while he made his call. We weren’t marking that area, anyway. The key is, he was on the phone.”

The company challenged the citations. Did they get a dismissal?

The Decision
Yes, the citations for lack of adequate training were dismissed.

The company answered the “inadequate safety training” by showing that the deceased worker had signed off that he understood the relevant work rules.

These included:

  • knowing the traffic pattern of vehicles delivering materials to the work site, and
  • remaining within the work zone at all times.

Since the work rules were relevant to the accident, and the safety training was conducted and documented, the OSHA judges dismissed that citation.

The company answered the second citation – not conducting specific training for marking pavement – by saying the worker was not assigned to do that job; this was misconduct.

Cell phone records showing a call just before the accident proved that the worker wasn’t marking pavement, but talking on the phone. The supervisor also made a convincing case that there was no reason to be marking pavement in that area.

Bottom line for supervisors: Documentation matters.

Cite: Secretary of Labor v. John R. Jurgenson Co., No. 10-2646, OSHRC.

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