Court says company’s safety policy not enforced, willful violation stands
You’ve probably heard this many times: It’s not enough to have a safety policy – you have to enforce it. Now, a federal appeals court has acknowledged that in a recent ruling.
OSHA issued a $70,000 willful violation to Stark Excavating for improper sloping of a trench at an Illinois work site.
On appeal, an administrative law judge (ALJ) reduced the violation from willful to serious, reducing the penalty to $7,000.
OSHA appealed the reclassification of the fine, and the Occupational Safety and Health Review Commission found it should be characterized as willful and assessed a $60,000 penalty.
Stark argued to the 7th Circuit Court that the Commission erred in characterizing the violation as willful and that it engaged in a good faith effort to comply with the trenching regulation.
OSHA’s trenching standard requires sloping match the soil type in the excavation. The soil in question was Type B which requires a trench slope no steeper than 45 degrees.
The OSHA inspector determined that the walls of the trench in question were 60, 70, 76 and 80 degrees – all indisputably exceeding the maximum 45 degree slope.
Stark doesn’t argue that the slopes were in compliance. Rather, it believes the violation should be characterized as serious rather than willful.
But some testimony from the company’s own employees made that a difficult argument.
Sacrificed safety for time
Stark Foreman Jason Schupp says for the trench in question, he determined the soil was Type B and recorded that on the company’s Daily Report form. However, that form also required him to record what type of trench protection would be used, and that if it was sloping, Type B soil required a maximum slope of 45 degrees.
Schupp didn’t fill out the rest of the form and didn’t determine whether the excavation met the 45 degree requirement.
Schupp said he didn’t pay attention to how the excavation looked. “I just wanted to get in there and get the hydrant on is really the bottom line,” he said. He hoped to finish the work early to make a good impression on the client.
When the OSHA inspector approached the work site, a Stark employee was working in the trench.
Schupp said once he realized OSHA was on site it “kind of hit home with me … I didn’t take the time to go ahead and do my practices.”
Previous court decisions determined that willfulness “requires proof only that the defendant was aware of the risk, knew that it was serious, and knew that he could take effective measures to avoid it but did not.”
The ALJ concluded that the violation wasn’t willful because Stark had developed a well documented excavation safety program with adequate rules and employee training. The ALJ also believed there had been a reasonable effort to slope the excavation.
But the appeals court found the ALJ’s belief wasn’t supported by the record. There was no evidence that anyone took action to address the trench’s slope.
The ALJ had also noted that Schupp didn’t know whether the sloping was in compliance. The ALJ distinguished that from a situation in which a supervisor had measured the angles, determined the slopes weren’t in compliance and proceeded without fixing the situation. Here, the ALJ thought it was a case of negligence rather than willfulness.
But the appeals court noted that the ALJ had also opined on the “unsavory conundrum” for Stark’s supervisors that they risked trouble for taking the time to use proper safety measures, or risked trouble for not taking the time to implement the measures. In the first instance, the supervisors would be sacrificing safety compliance. In that context, the court found Schupp’s statement reflected “a willful determination to forego the safety practices in order to save time.”
Stark also argued that its good faith efforts to comply with OSHA regulations negated willfulness. Stark said it had safety rules, its employees were adequately trained and it conducted regular inspections of its work sites.
The appeals court agreed that good faith compliance efforts could be relevant, but it didn’t find that to be the case here.
Stark had written rules for noncompliance. For a first violation, the company would issue a ticket and a written warning. Second violation: a ticket and a one-day suspension. Third violation: a ticket and a three-day suspension. Fourth violation: mandatory termination. Warnings were to all be in writing.
But the court found Stark’s rules were routinely disregarded. From August 2006 to June 2008, only two supervisors had issued tickets. (Stark handled about 250 jobs per year.) Schupp and one other supervisor testified they had never issued any safety tickets and preferred to verbally correct employees.
Employees also testified that when the company’s safety manager was visiting work sites, supervisors would radio each other to provide advance warning.
“Stark failed to demonstrate that it had a safety policy that was effectively enforced,” the appeals court found. The court upheld the Commission’s finding that the violation was willful and the penalty should be $60,000.
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Source: Safety News AlertPublished on 2016-02-08