By: Thomas H. Welby Thomas H. Welby Published: September 2006

Safety Policy: Recent Cases from the OSH Review Commission (Part 2 of 2)

This month concludes last month’s “review lesson” using illustrative recent decisions of the OSH Review Commission.

A major theme of last month’s article was that the probability of future litigation with OSHA, and the need to preserve the credibility of both client and lawyer, implies the need to avoid trying to defend against OSHA violations by using “defenses” without substantial merit.

The same doctrine applies to factual assertions. For example, in the case of EMS Construction, the OSHA inspector saw two employees on a rooftop, taking sheet metal off a fork lift, placing it on locations around the roof, and at times approaching within a foot or two of the eave. The employees were not tied off, and no fall protection was in place.

When confronted at the job site, the employer’s foreman didn’t dispute the inspector’s observations, but insisted that there was no violation, because the employees did not come within six feet of the edge of the roof.

At the hearing, the employer’s foreman insisted that workers were required to be tied off 100% of the time; that he had seen the employees in question tied off earlier in the day, and that he had spent only 5-10 minutes in a forklift (from which he could not observe the employees in question) and therefore assumed that the employees remained tied off.

Citing multiple inconsistencies in the foreman’s testimony, the ALJ concluded by stating that it was “frankly unbelievable that employees who had been wearing harnesses and lanyards earlier in the day would shed them during the 5 to 10 minutes their foreman left the roof to use the forklift.” The foreman’s testimony was accordingly rejected.

The preciousness of credibility applies to testimony as well as to legal arguments. Because the immediate monetary stakes in OSHA hearings are seldom large, employers’ witnesses for OSHA hearings are seldom over-prepared, and some lawyers may find communicating with nervous, uneducated, or foreign-born employees to be time-consuming, awkward, and perhaps difficult owing to language issues.

Moreover, the witness who is not an owner or executive may feel pressure to shave the truth, perceiving that any failure to protect the employer’s interests could place his job in jeopardy. And every lawyer who has tried more than a handful of cases has had the experience of even a supposedly well-prepared witness improvising unexpected and flatly-incredible tale while testifying under oath.

To say nothing of it being reprehensible and indeed a crime, false testimony at an OSHA hearing is a strategic mistake of the first order. Today’s hearing is but one of several, perhaps many, that your company may have to defend. Few employees are comfortable lying, and the ALJ makes his or her living by determining (in most cases correctly) which witnesses are truthful and which are not.

Be proactive, therefore, and before your employees even speak with your attorney to prepare to testify at the hearing, meet with each of them privately, acknowledge their loyalty, and assure them that you do not expect, or want, them to testify to anything but the truth. In your own testimony as a principal of the company, uphold the same standard. You do not want to be thought of as less than honest, and even if in a given case you were to get away with it (as where doubtful testimony must be accepted, for want of anything that contradicts it) in the smallish world of OSHA, it’s a good bet that, at a later date and if only indirectly, you’ll pay the price.

The sad case of John Carlo, Inc. illustrates this principle, and brings to mind also remarks I made some months back deploring the machismo of those who work in trenches, and cautioning against entering an unprotected trench, even for a few minutes’ work. In John Carlo, Inc., the employer was installing a PVC sewer line in a 14-1/2 foot deep trench along a roadway.

Throughout most of this endeavor, the work crew worked inside two stacked trench boxes, the bottom one 8 feet high, and the top one 6 feet high.

A decision had to be made, however, when the crew approached a place at which it had to place a 13’ long length of line approximately 12 feet below an existing flexible 2” diameter gas line, which ran perpendicular to the sewer line.

The encounter with the gas line was not unexpected. Personnel of the employer had known for more than five months) that the gas line crossed the path of the sewer line at the location in question.

The project superintendent’s instructions to the foreman were to remove the top trench box, pull the lower box under the gas line, and have two men to go down in to the trench, and lay the single 13-foot section of sewer pipe.

Before these orders were given and carried out, the project super and the foreman discussed the practicability of sloping the trench, outside the confines of the trench box.

The foreman testified that the super said that the company had bid the job to be no wider than six feet. The employer, apparently, did not want to absorb the cost of select fill to replace dirt as would be removed if the trench were to be sloped where the sewer line had to be fit beneath the gas line.

So, the top trench box was removed, the bottom box was pulled into position, and two men were sent into the trench, with more than 6’ of unshored, unsloped earth overhead.

Within 30 minutes, a large clay ball dislodged, fell into the trench, and killed one of the two men working there.

A brief excerpt from the testimony will dispel any shock that the violation was adjudged to have been willful. Regarding his discussion with the project superintendent (who had 40 years’ experience working underground) as to how to proceed, the foreman testified:

Q. [Did the super] tell you that the trench walls would be vertical . . . without any attempt to slop them back?

A. No, sir. He told me once I pulled the stacker box, because I told him, I said, “You know that we’re not to be able to slope it.” He says, “Yes, I understand that. Y’all be careful.”

* * *

Q. Did you perform any sloping or any benching or anything like that when you installed or when you attempted to do the work in that vicinity?

A. No, sir.

* * *

Q. And at the time that our crew members entered this trench, did you understand that the trench was not in conformity with OSHA guidelines?

A. Yes, sir.

Q. And was it your understanding [the superintendent] was essentially telling you to dig this trench not in conformity with OSHA guidelines?

A. The way I took it, yes, sir, the way he explained it to me, because I asked [the super] about once I pulled the stacker box, about getting steel sheets out here to drive down beside this trenchbox, and he said [the employer] would not do that.

The foreman was insistent that the super told him that they could not slope the trench “because of the way they bid the job plus the existing utilities in the ground.” Again illustrating the futility of lying, the superintendent’s denials were rejected as inconsistent with the testimony of the foreman, the survivor of the two men who had been sent into the trench, and his own prior statement to OSHA.

The ALJ found a “Willful” violation, and imposed a $50,000.00 penalty. What may have befallen this employer in a lawsuit for wrongful death, I do not know.

However difficult it might be to believe for some, the toughest of tough guys is no match for several tons of collapsing dirt. Remember, too, that when you next take an OSHA citation to trial, that proceeding will probably be more about the future of your company (that is, about softening the impact of potential future citations) than about winning on the violation actually being tried. In addition to being the right and lawful way, taking the high road is also the advantageous way to litigate these matters.

Thomas H. Welby is a licensed professional engineer, as well as an attorney 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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