Page 90 - MetalForming July 2017

You and The Law
By Douglas B.M. Ehlke
Major Citations Reversed
When Evidence of Compliance Excluded
These two cases illustrate how OSHA administrative-review courts may reverse major cita- tions when evidence of compliance has been excluded.
Case 1
Expert witnesses’ testimony for the employer on the inapplicability of the new crane standards’ separate duties and on technical safety of the opera- tion were taken out of colloquy and admitted.
In an early test of the interpretation of new federal and state OSHA crane standards, the bulk of trial testimony by three standards authors and recog- nized industry experts was objected to and excluded as evidence by putting it into “colloquy.” Under the new crane- safety standards, worksite employer- supervision responsibilities are sepa- rately designated for the lift director, site supervisor, crane owner and oper- ators. When a crane owner leased its crane and operators to a different employer and required by contract for the crane renter customer to supervise the leased operators and crane activi- ties, the crane-owning company, with- out supervisors on the job, was cited for lift-director and site-supervisor duties related to contacting the utility company and de-energizing powerlines
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 dehlke@ehlkelawoffices.com
adjacent to the work area.
At trial, the employer presented
three experts: two former OSHA agency technical-interpretation and code- enforcement managers and an industry expert who served on OSHA federal and state standards-writing-and- reviewing committees. Their testimony on the safety rule, on industry safe practices, job divisions under the safety rule, exemptions and the compliance of employer safety programs in effect
“The entire record (including workers comp ratings) persuades us that this employer did not act with plain indifference to safety requirements.”
was excluded as irrelevant at trial. On appeal, the reviewing Board Of Indus- trial Insurance Appeals reversed the decision. In its unanimous decision, the board determined that expert wit- nesses’ testimonies were relevant and helpful in resolving these type of cita- tion-appeal issues.
In the board’s words:
“We reviewed the testimony of the expert witnesses, Mr. Sicklesteel, Mr. Lemon and Mr. Parker. Their testimony was helpful to the trier of fact in under- standing the technical aspects of the crane-assisted lift operation. Mr. Lemon’s testimony aids in analyzing the safety rule. Mr. Parker’s testimony assists in determining facts at issue, specifically whether Sicklesteel was the lift director or site supervisor and thus responsible for contacting the utility company. After carefully reviewing the
entire record and considering the argu- ments of the parties, we conclude that the testimony of Thomas Sicklesteel, Charles Lemon and Robert Parker should be removed from colloquy and admitted as evidence.
“We now turn to the substantive issues in this appeal. We agree with our industrial appeals judge that the department failed to make a prima facie case on alleged violation 1-2 con- cerning an inadequate safety program, cited as serious under WAC 296-155- 110(2). The record establishes that on the date of the alleged violation, Sick- lesteel did have an adequate safety program in place. This alleged violation should be vacated.
“We also agree with our industrial- appeals judge that the department failed to make a prima facie case as to the alleged violations 1-1a and 1-1b, which were cited as serious under WAC 296-155-53408(2)(d)(i) and WAC 296- 155-53408(2)(d)(ii). But our reasoning differs from the reasons set forth in the Proposed Decision and Order. These allegations addressed employer duties and responsibilities when oper- ating cranes under power lines. Both of these alleged violations were premised on the employer being the lift director and/or site supervisor as defined at WAC 296-155-53401(1).
“Mr. Lemon testified that Service Electric took many steps to ensure their employees’ safety, including developing a lift plan, holding a planning meeting, determining exactly where the ener- gized power lines were, assigning sev- eral dedicated spotters, and contacting the utility company and obtaining the exact voltage of the power lines. Mr. Parker explained that the lift director or site supervisor had the duty to con- tact utility companies, and the lift director’s duties or responsibilities were not applicable to Sicklesteel in this sit-
88 MetalForming/July 2017
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