By: Alexander A. Miuccio Thomas H. Welby Published: April 2007

Safety Policy - Abatement Measures Under OSHA's General Duty Clause

Imagine that one of your laborers is dead as the result of being struck by an excavator bucket in a trench, and that a compliance officer has cited your company for a “Serious” violation of OSHA’s General Duty Clause, § 5(a)(1).

Panic in such a situation has kept more than one employer from even calling his lawyer. The danger is seeing OSHA proceedings as a deck stacked against the employer where a fatality is involved; taking it as a given that the defense of the wrongful death lawsuit will be complicated by an adverse OSHA finding; and giving up on the OSHA citation from the outset (especially if your liability coverage won’t defray legal fees spent in defending the OSHA citation).

Anytime you are cited for an alleged OSHA violation classified as “Serious,” “Repeat,” of “Willful,” you should promptly contact an attorney experienced in OSHA representation.

Every citation gives you the opportunity to focus on your company’s safety program. Regardless of whether the citation can be successfully defended (or downgraded through negotiation) it provides the occasion to identify and to implement measures to better protect your employees and your business.

And, whatever the immediate outcome, an OSHA citation is a challenge to you to demonstrate, both to your workforce and to local OSHA personnel, that you are a safety-conscious employer. “If you’re going somewhere,” the adage goes, “you’re going to get some mud on your shoes.” That is, if you remain in business, and your company grows and takes on bigger projects, you will probably receive more, and not less, attention from OSHA. Life has, let us hope, pleasures greater than visits from government agents to enforce laws that cost you money. However, just as there is some small satisfaction in moving into a higher tax bracket (and since, in your heart, you believe your workers deserve a safe workplace) you should strive to put a cheerier and more enlightened “spin” on your increased business with OSHA, and to view it is a badge of your success.

Keep in mind that many OSHA cases that look terrible at first can be successfully defended, and it’s uncommon that solid legal representation cannot at least reduce the bad consequences to your business. It’s upsetting, naturally, to get a citation (especially when the citation follows the occurrence of a fatality or serious injury) but don’t assume OSHA is a rampaging bunch of zealots out to punish employers. The statute, the agency, and the enforcement and adjudicatory procedures aren’t perfect, but such is the human condition. OSHA has markedly improved workplace health and safety. The regulations (as well as OSHA enforcement personnel) are generally rational and comprehensible. Adjudicative hearings, although under Department of Labor auspices, are not a “Kangaroo Court.” Procedures are streamlined, but not unreasonably so. And the ALJs, even in cases involving serious injuries or death, are not in the business of trampling on the law, to punish the employer.

While fatalities nearly always trigger an inspection, it is the exposure of employees to unsafe or unhealthful conditions — not the occurrence or severity of actual harm, that constitutes the violation.

Secretary v. Mario Sinacola & Sons Excavating, Inc. illustrates that even seemingly tough cases can be won. That case presented the scenario described at the head of this article. A 3-man crew was installing a water line in a trench. Martinez, one of two pipe layers, was acting as signal man for the excavator operator, Ruiz-Hinojosa, whose limited visibility did not allow him to see that section of the trench where the pipes were to be fitted together. When a section of pipe was lowered into the trench, Martinez signed Ruiz-Hinojosa to stop, and walked under the excavator bucket to the opposite (north) side of the excavator, to assist the second laborer in joining the new section of pipe to the previously installed section.

A foreman, Harig, came to the south end of the excavator and, seeing that Martinez and the other laborer had the two pipe sections lined up, on Martinez’s signal (Martinez remaining out of Ruiz-Hinojosa’s sight, in the trench’s north end) signaled to the operator to move the bucket northward, to drive the new pipe into the joint. When that had been accomplished, Harig turned his attention to a different crew. Ruiz-Hinojosa moved the bucket back slightly, to take tension off the chain.

Unfortunately, as he did so, Martinez (still invisible to Ruiz-Hinojosa, as he tried to step around the bucket to regain his previous position) was struck by the bucket, and sustained fatal injuries.

The employer was cited under OSHA’s General Duty Clause, which violation comprises five elements. They are:

  • A hazardous workplace condition or activity;
  • That the hazard be recognized, whether by the industry in general, or by the cited employer;
  • That the hazard be likely to cause death or serious physical harm;
  • That the employer knew, or with the exercise of reasonable diligence could have known, of the violation;
  • That there existed feasible means to eliminate or materially reduce the hazard.

Thus, the Secretary’s case required, among other things, that she articulate practicable means to abate those hazards that go along with having, in a confined space, workers on foot, an excavator with a movable boom and a heavy bucket, and an operating engineer with restricted visibility.

The Secretary’s burden is not met by “abatement measures” that — even if they appear plausible at first — on examination prove to be insubstantial. In Sinacola & Sons, for example, the citation listed the following:

  • “Develop and implement procedures to ensure that all personnel working near moving equipment are accounted for and . . . a safe distance away” before allowing the machine to be moved;
  • A “written hazard analysis” relating to the installation of pipes/utilities in trenches;
  • Developing methods to allow employees “to remain in constant contact with one another during the installation of underground utilities,” especially “where visual and oral communication is difficult and/or obsolete;”
  • The appointment of a safety monitor/signalman during underground installations; and
  • Development of a system of signals understood by all, the use of only one signalman at a time, and a formalized system to ensure that all are aware where responsibility is passed from one signalman to another.

Of the five abatement measures included in the citation, the Secretary dropped all but the first and last shown of them prior to the trial. And, as the ALJ rightly detected, “the first abatement method merely restates the recognized hazard, and suggests that [the employer] develop and implement additional procedures to eliminate it.” It is the Secretary’s obligation, if she is to sustain a General Duty Clause citation, not merely to command that the employer develop new procedures, but to indicate measures the employer ought to have employed, which precautions are recognized by knowledgeable persons in the industry as “necessary and valuable.”

As for the last-mentioned proposal concerning a single signalman, the operating engineer was trained to receive hand signals, signalmen were utilized, and the operator received hand signals from only one signalman at a time. There was no evidence, the ALJ found, “that a reasonable employer familiar with the conditions on Sinacola’s work site would have found these safety precautions inadequate.” Because the Secretary failed to propose a feasible means of abating the cited hazard, the General Duty Clause violation was vacated, and the citation dismissed.

Obviously, the employer’s win in this contested matter neither diminished the gravity of the loss of life, nor guaranteed a favorable outcome in a wrongful death action by survivors of the deceased employee. Nevertheless, the employer’s prospects in such an action were certainly not damaged by the outcome and, more generally, the same demonstrates that injuries, even fatal ones, do not constitute an OSHA violation, and citations related to tragic occurrences can often be successfully defended.

Thomas H. Welby is a licensed professional engineer, as well as an attorney with more than 20 years’ experience, and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

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