Page 91 - MetalForming July 2017

uation. Mr. Sicklesteel explained that a lift director starts by defining the work zone where the crane is going to work and identifying the hazards, such as power lines. Sicklesteel did not create a lift plan for this lift. Here, it is unre- butted and uncontested that Service Electric employee Andy Johnson was the lift director and the site supervisor. In addition, Mr. Sicklesteel testified that no managers or supervisors from Sicklesteel were in attendance at any project safety meetings or were present on the work site when the lift was made.
“Taken as a whole, the record shows that the department failed to prove that Sicklesteel knew, or could have known, of the alleged violative condi- tion of energized power lines. The department also failed to prove that Sicklesteel had actual knowledge because there were no Sicklesteel man- agers on site, and failed to show that Sicklesteel was responsible for con-
tacting the utility company to arrange for the power lines to be de-energized. “Sicklesteel was not the lift director or the site supervisor. It did not have responsibility to get power lines de- energized or show that its compliance was infeasible. Sicklesteel had no knowledge on the alleged violative con- dition. The department failed to estab- lish a prima facie case, and items 1-1a
and 1-1b should be vacated.”
Upon this decision, the agency has
30 days to appeal.
Case 2
Excellent workers comp experience ratings/MOD factors help an employer defeat six “willful” citations.
In a fall-protection case, the agency cited a prior-cited employer with six willful citations. The employer’s defense evidence included an experience factor calculated on its historical workers- comp injury rate. That evidence revealed a good record. On the basis
of this favorable evidence, a few no- violation inspections and safety expe- rience, the state OSHA case-trial judge ruled that:
“Between May 6, 2009, and March 13, 2014, there were 16 inspections with only five resulting in fall-protec- tion violations; six of those inspections resulted in no violations at all.
“Further, a review of Exhibit Nos. 83 and 84 reveals that this firm’s expe- rience rating has been below 1.0 every year since 2008 and below 0.8 since 2010. An experience rating of less than 1.0 means that the employer has lower accident costs than the average employer in its class. We agree that an experience rating below 0.8 does not reflect a disregard for the safety of its workers, and the entire record per- suades us that this employer did not act with plain indifference to safety requirements.”
For a copy of either of these cases, please contact Ehlke Law Offices.
Factors Influencing OSHA Citation Settlements
Along with other lawyers, I pre- sented a seminar in Cleveland on OSHA/WISHA enforcement and settlement developments. At that seminar, Elliott Furst, senior counsel and assistant attorney general of Wash- ington state’s Labor and Industries Division, gave a helpful presentation, “Working with the Attorney General’s Office in WISHA Cases.”
Here is how Furst described his office’s settlement-litigation policy on citation appeals: “In every case, we are consciously trying to determine what approach will ultimately yield the best result for worker safety.”
In most cases, for the reasons dis- cussed below, a creative settlement ultimately will achieve more for worker safety, according to Furst, than litigat- ing a case at the state’s Board of Indus- trial Insurance Appeals, which is Wash-
ington’s equivalent to the federal OSHA Act Review Commission.
These factors, offers Furst, deter- mine whether a WISHA case should be settled at the board:
• Is there a better than 50-percent chance that the WISHA department will prevail on major violations? Taking a weak case to the board hurts the department’s long-term credibility, and ultimately hurts its enforcement efforts, thus lessening worker safety.
• Is the employer willing to take sig- nificant extra steps not required by Washington Administrative Code rules that will improve safety in a meaningful way? This usually will involve agreeing to do something that the board could not order an employer to do. The extra steps in a settlement do not have to be directly related to the violations on appeal. It is more important that they
provide genuine improvements to safe- ty that truly will make a difference.
• If employers complying with WISHA rules are at a competitive dis- advantage, then less employers will comply with the rules, resulting in a loss of protection to workers.
• As part of a duty to maintain a level playing field, it is important that WISHA cases with ‘bad actors’ are the highest priority for litigation. Cases with bad actors should either not be settled, or the settlement terms should be based on a determination that the settlement will do more to level the playing field than the expected results of a board hearing. Most WISHA appeals do not involve bad actors. The state’s attorney general’s office con- sciously attempts to settle cases with most employers to free up attorney resources to prosecute bad actors.
www.metalformingmagazine.com
MetalForming/July 2017 89
You and The Law