Page 50 - MetalForming February 2017

You and The Law
By Douglas B.M. Ehlke
Trends Observed After a Season of Litigation
OSHA citation appeals and dis- criminatory-termination claims kept me in court and depositions much of last year. Among them were citations and penalties relat- ed to fatality machine guarding and lockout-tagout (LOTO). Along the liti- gation paths, I observed some trends which might prove helpful to progres- sive compliance programs in avoiding willful citations and penalties, and for preventing or resolving disability dis- crimination claims.
On the OSHA Front
In resolving and favorably settling OSHA citations, metalformers should take the time to identify and list the extra abatement or compliance steps taken, even including steps, program or training efforts not directly related to the inspection or citation items. If the cited standard was inapplicable, raise that defense early and work with OSHA to develop a best-practices safe- ty/health-compliance program that can be used to educate the industry and avoid similar accident or fatality causes. Bring PMA and other associa- tion safety leaders into negotiations to remove inaccurate, invalid or vaguely worded citations.
When preparing to talk to OSHA personnel at the informal conference,
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and envi-
ronmental 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
know the history of prior contrary agency enforcement under the same standard, and research agency accept- ance of prior legal rulings where the same standard was held to be inappli- cable or infeasible to comply with. And, have managers read (for back- ground, to avoid willful indifference to safety) the U.S. Court of Appeals for the District of Columbia Circuit 2012 decision in Dayton Tire v. Secretary of Labor, 671 F.3d 1249 (D.C. Cir., 2012). The D.C. Federal Court of Appeals clar- ified a clearer legal standard of identi- fying (and avoiding) what employer conduct constitutes “willful” violation of OSHA standards. The Appeals Court stated that the definition of “willful” is a narrow one, requiring that an act be committed “voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements.” To make out a “willful” violation, the Secretary of Labor (OSHA) must be able to demonstrate that “the employer was actually aware, at the time of the violative act, that the act was unlawful, or that [the employer] possessed a state of mind such that if it were informed of the [OSHA] standard, it would not care.”
The D.C. Appeals Court further clar- ified that “it takes a lot to be plainly indifferent,” and based on the secre- tary’s failure to “cite a single piece of evidence indicating that [the manager] was actually aware...that the act was unlawful,” the Court vacated the penal- ties assessed.
The factual background of this case started in 1989, when OSHA promul- gated the LOTO standard. Dayton Tire operated a manufacturing facility in Oklahoma, but all service and main- tenance at the facility was performed by an outside contractor. Dayton Tire’s safety managers determined that its employees were only “affected” employees, whose required training in LOTO was considerably less stringent
than that of “authorized” employees under OSHA’s standard. After a 1993 fatal injury to a Dayton Tire employee, caused by unexpected machine startup, OSHA inspected the facility and issued 107 “willful” violations, 98 of which were for alleged “willful” failures to train 98 different employees to the “authorized employee” level.
Dayton Tire contested the citations and a Review Commission adminis- trative law judge affirmed the violations and assessed a penalty of $518,000. He ruled that even though Dayton Tire’s actions were “consistent with a good faith belief and effort to comply with the LOTO standard throughout the Oklahoma City plant,” 37 of the alleged violations were “willful” because Day- ton Tire had knowledge that its parent corporation had previously been cited for similar violations of the LOTO stan- dard.
The case was appealed to the Occu- pational Safety and Health Review Commission, which issued its opinion in 2010 (more than 12 years after the 1998 decision). The commission’s opin- ion upheld all of the violations as “will- ful” and increased the penalties to nearly $2 million (Secretary of Labor v. Dayton Tire, No. 94-1374 (2010)). The commission’s determination of “will- fulness” was not based on the parent corporation’s prior violations, but rather on the original findings by Day- ton Tire’s first safety manager: Only the outside maintenance-contractor’s employees were LOTO-authorized employees, which the commission found to be “plainly erroneous.”
The Review Commission also found that when the subsequent safety manager relied on her predecessor’s safety assess- ment, she “either knew that her prede- cessor’s LOTO analysis was incorrect or chose to avoid such knowledge by refus- ing to conduct her own assessment.”
The D.C. Circuit overturned the
48 MetalForming/February 2017
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