By: Thomas H. Welby Published: January 2012

Safety Policy: U.S. Court of Appeals Upholds "Failure to Train" Citation

In most cases, to prove an OSHA violation, the Secretary has the burden to prove four elements: (a) the applicability of the cited standard; (b) the employer's noncompliance; (c) employee access or exposure to the violating condition; and (d) the employer’s actual or constructive knowledge (that is, that it knew or, with the exercise of reasonable diligence, could have known) of the violation.

29 C.F.R. § 1926.21(b)(2), the training standard, provides:

Each employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

Thus, to avoid violating OSHA, you need to keep your worksite free from hazards mentioned in the multitude of specific construction industry standards. In addition, under the General Duty Clause, you must protect employees from hazards recognized by the employer, or within the industry, as posing a danger of death or serious harm. Plus, you must train workers in the regulations, and to recognize and avoid relevant hazards.

I am something of a skeptic about the efficacy of attempts to educate the entire construction workforce in all of the intricacies of the construction regulations. I found troubling, therefore, a recent decision by the U.S. Court of Appeals for the Tenth Circuit, in Denver, exemplifying OSHA’s recent enthusiasm for failure-to-train citations, as well as arguably excessive judicial deference to administrative agency determinations.

In Compass Environmental, Inc. v. OSH Review Commission, the employer was constructing an underground slurry wall at a surface mine site in Colorado. A mobile excavator with a 75-foot boom was in use, to dig a trench for the slurry wall. The excavator crew consisted of the operator and a "trench hand," whose tasks included checking the trench depth, greasing the excavator, and watching for problems that the operator could not see. To dispense grease, the trench hand used a rubber and metal hose, connected to the excavator, with a metal nozzle. The greasing was generally done after each cut, as other maintenance, including refueling, was performed.

The employer conducted a "Job Safety Analysis," which identified as one hazard an energized 7,200 volt line crossing over one end of the site. The Job Safety Analysis prescribed that the excavator operator and trench hand be directed to maintain at least a 20' clearance between the excavator and overhead lines. Because the trench hand was a late hire, he missed instruction regarding the power line, and while he received some individual training, it was unclear whether that included any concerning the power line.

While the employer did not prescribe procedures for refueling the excavator, the experienced operator's standard procedure was to move the excavator at day's end onto a compacted dirt work pad, and await the arrival, by forklift, of a 300-gallon portable fuel tank.

The excavator was operating about 200 feet from the power line, and the owner had been advised that it would soon have to de-energize it. For no obvious reason, the operator deviated from his practice of having the fuel tank brought to the work pad, and instead walked the excavator toward the tank, which had been left beneath the still-energized power line. The trench hand, walking alongside, with the grease line in his hand, was electrocuted, when the boom approached the power line.

OSHA cited the employer for working too close to the energized line, and also under the training standard. The test under the training standard is not the usual four-prong test stated at the head of this article, but focuses on whether a reasonably prudent employer would have recognized the hazard, and provided training to enable the employee to perceive and avoid it.

When Compass contested the citation, the ALJ vacated the failure-to-train item, based largely upon his finding that the trench hand’s exposure to the power line was not foreseeable. That decision was appealed by the Secretary of Labor to the OSH Review Commission, which reversed, holding that a reasonable employer would have anticipated the trench hand’s exposure to this overhead power line, and provided him with training necessary to recognize this electrocution hazard.

The employer petitioned the federal Court of Appeals to review the Commission's determination. A 2-1 majority upheld the citation, in large part based on its determination that the employer’s recognition, in its Job Safety Analysis, of the hazard posed by the energized power line was evidence of the necessity to train the trench hand to avoid it. Accordingly, and utilizing the highly deferential, abuse-of-discretion standard applicable to administrative agency decisions, the majority affirmed the citation.

In dissent, Circuit Judge Gorsuch decried that administrative agencies' interpretations of ambiguous statutes control, "even when most everyone thinks Congress really meant something else." Their regulations bind, "as long and they can make the modest boast that they haven't behaved arbitrarily or capriciously." To overturn their factual findings, it must be shown that they "have not just erred, but clearly erred."

Even so, the dissent argued, the Commission should not be able to impose penalties without some actual evidence the law has been violated.

The dissent pointed out that the Secretary had an evidentiary burden to show that reasonably prudent employers in the industry would have anticipated the hazard encountered, and provided the trench hand with more training than Compass did. The ALJ, in the dissenting judge’s view, had correctly vacated this citation item, for lack of evidence on this point. No witness could explain why the operator had "defied years of training and experience," first by walking the Komatsu toward the power line, taking the trench hand with him, and in failing to maintain 20 feet of clearance. The Secretary had introduced no real evidence, the dissent argued, on the dispositive issue of whether Compass should have foreseen he would do so.

However much deference be given to agency determinations, Judge Gorsuch objected, reviewing courts must not be so ineffectual that they will accept "Delphic declarations" as to the practices of prudent employers, where evidence is legally required.

Nor should it be sufficient, the dissent argued, that the trench hand, a late hire, did not receive the training that others did regarding the power line. The standard doesn’t penalize an employer’s failure to follow its own internal procedures. Nor should it do so, as that would deter employers from exceeding OSHA’s requirements.

The dissent stressed, also, that the Secretary is not wholly constrained by existing industry norms. She can try to prove, for example, by sufficient evidence that prevailing norms are too lax to satisfy a "reasonably prudent" standard.

Alternatively, if the Secretary views an industry practice as too lax, by the rule-making machinery provided under the OSH Act, she can enact a new and more stringent regulation, placing everyone on notice of the need to meet a higher standard."

Whether or not the dissenting opinion was correct in suggesting that the fatal accident in question was one so unlikely that even an entirely reasonable employer would not have anticipated or trained for it, I think Judge Gorsuch was correct, in agreeing with the ALJ that the Secretary’s assertions were not an adequate substitute for evidence.

And, while the administrative agencies' specialized knowledge justifies a healthy measure of deference to their determinations, the powers of review given to the federal Courts of Appeals serve to avoid sloppy, and at times peremptory, administrative actions. However one views the outcome in the case discussed above, an unvarying resort to the "rubber stamp" would be an abdication of responsibility.

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