Page 41 - MetalForming February 2011

Eleven Safety Resolutions for 2011
1)Verify and document the field effectiveness of your ear-protection devices. OSHA seems only interested in enforcement and generating higher penalties. Six-figure fines are increasingly common in major safety investigations. In a recent hearing-conservation case, an Occupational
Safety and Health (OSH) Review Commissioner ruled that: “Employer violated noise-monitoring standard because it failed to conduct repeat noise monitoring to determine if hearing-conservation methods implemented 25 years earlier were still effective in light of changed working conditions during that time and since managers knew there had been significant changes to facilities and machinery, knowledge of violation is imputed to employer; violation was properly categorized as serious because hearing loss is irreversible medical condition.” Secretary of Labor v. Nebraska Aluminum Castings Inc., 23
NA-OSHC 1309 (September 30, 2010)
Witness also OSHA’s proposal to completely change the
PMA-member noise-standard litigation (from the 1980s) where effective ear muffs and plugs having 25-dB hearing protection in the ear were viewed as better protection for the employee than die enclosures, costing $3000 or more each (where ear pro- tectors would still be required). “Feasibility” has been viewed under a balancing cost-benefit test. OSHA now wants noise- engineering economic feasibility to be determined by a “can you afford it” test. It wants to redefine what is feasible to shift the focus to engineering out the noise, as long as you can continue to afford the engineering control(s) on a corporate financial macro level.
There still would be a defense of technical infeasibility, but if implemented and enforced, this new economic feasibility policy reinterpretation would destroy small manufacturing companies and their hearing-protected workers.
2)The OSH Review Commission is deciding “Piercing the
Corporate Veil” cases and finding “willful” and “repeat” violations where the inspected corporation is a “successor” or has “substantial continuity” of operations to its change legal identity predecessor company. In the case of Secretary of Labor v. Sharon & Walter Construction, Inc., 23 BNA-OSHC 1286 (R.C. November 18, 2010) “willful” and “repeat” violations to fall-protection standards were
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
dehlke@ehlkelawoffices.com
based on prior final order citations given to the same cor- porate owner of other owned companies doing the same type of work. The commission also rejected the employer’s “independent contractor” defense, finding employee sta- tus where the company controlled the worker’s hours, assignments, and schedule—if a job was finished early, the maintenance worker was not free to leave for the day but instead had to return for other assignments.
3)The state of mind of supervisors or managers is a key factor in determining what is or is not a “willful” viola- tion. The Sharon & Walter Construction, Inc. decision reflects
this required threshold for a willful violation:
“The hallmark of a willful violation is the employer’s state
of mind at the time of the violation—an ‘intentional, know- ing, or voluntary disregard for the requirements of the Act or...plan indifference to employee safety.’ Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181, 2000 CCH OSHD ¶ 32, 134, p. 48,406 (citation omitted), aff’d, 268 F.3d 1123 (D.C. Cir. 2001).
“It is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation... A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind conscious disregard or plain indifference...”
Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, pp. 41, 256-257 (No. 89-433, 1993).
“[A]n employer’s prior history of violations, its aware- ness of the requirements of the standards, and its knowledge of the existence of violative conditions are all relevant con- siderations in determining whether a violation is willful in nature.” MJP Constr. Co., 19 BNA OSHC 1638, 1648, 2001 CCH OSHD ¶ 32,484, p. 50,307 (no. 98-0502, 2001), aff’d without published opinion, 56 F. App’x 1 (D.C. Cir. 2003)”
The opposite of willful is an employer’s good-faith attempts to comply. Another opposite of willful is a good-faith compliance judgment call made at the worksite by a foreman. 4)Be careful what you include in insurance audits and
reports; OSHA is subpoenaing these. Retain the right in audit agreements to disagree with infeasible or incorrect findings or proposal, and conduct significant or sensitive studies under the attorney-client work-product privilege. 5)Train workers to not bypass safety guards, device or
machine-manufacturer’s safety equipment. Train and retrain them on lockout-tagout. Train them to recognize and report jobsite hazards, and to immediately shut down any unsafe equipment. Document all training, including on- the-job training, shadowing or mentoring. Establish training files for employees, and use a daily checklist to monitor compliance. Establish a method of detecting violations and take appropriate disciplinary action.
You and The Law
By Douglas B.M. Ehlke
www.metalformingmagazine.com
MetalForming/February 2011 39