Safety Policy: Broken Gas Line Case Underscores Perennial Problem in Training the Multilingual Construction Workforce
A recent Administrative Law Judge decision underscores, again, two persistent problems for employers. One is the requirement that OSHA training be offered in languages understood by employees. The other is a "tilt" in OSHA proceedings in favor of witnesses testifying for the Secretary, and against witnesses for the employer.
In Secretary v. Revoli Construction Co., Inc., Revoli had a crew excavating a street in a Boston suburb. Before undertaking this work, Revoli had contacted a "DigSafe" call center, leading to each of the relevant utility companies coming to the site to mark the location of its lines. These included gas lines owned by NStar Gas. In Massaschusetts, as elsewhere, the subsurface infrastructure is poorly-documented, and thus the utilities’ markings are not guaranteed to be accurate or complete.
While digging in an area away from the utility markings, Jose Raboso, a Portuguese-speaking backhoe operator, encountered an unmarked wire. Jose asked a laborer assisting him, his brother Pedro, to dig by hand to determine what type of utility, if any, was associated with the wire.
Pedro later testified that, on inspection, the white wire appeared to have been cleanly cut, as if with a pair of pliers. With his shovel, Pedro dug around sand he found in the hole, but although he saw yellow caution tape, he denied seeing any pipe.
Robert Driggs, a local police officer and also a licensed equipment operator, was directing traffic about 15 feet from where the Rabosos were working. After Pedro exited the hole, Jose dug out another bucket load, and came up with clean sand and yellow caution tape. Driggs had walked about 10 feet further away, when he heard a gas line purging. He shut down the intersection, called his dispatcher to send the fire department and NStar Gas, and saw to the evacuation of a school nearby. No one was injured.
OSHA cited Revoli for (1) failing to instruct its employees in the recognition and avoidance of unsafe conditions; and (2) failing to determine the location of the underground utilities by safe and acceptable means (both "Serious" violations).
The OSHA Compliance Officer testified at trial that Jose told him that he had recognized the line as a gas line; that Pedro, after digging around it, had told him it was an abandoned line that could safely be severed, and that he himself saw the pipe before he broke it.
The C.O. testified further that prescribed procedure requires, whenever an excavator finds a line and is unsure whether it is live, he is to stop work and notify the foreman, who will then call the utility. Employees must be trained that markings are only approximations, and that one must never presume that a utility line is dead. Both sides’ witnesses agreed that the severed gas line was between 10 and 18 feet distant from the utility company markings.
The ALJ may have been too quick to disbelieve the Rabosos' testimony. Jose had 14 years' experience as a licensed backhoe operator, had never before broken a pipe, and had never been disciplined by Revoli, or cited, for safety violations. He denied having seen the gas line, or having told the C.O. that he had seen it, and averred it would have been be "crazy" to knowingly break a pipe on his own authority.
Jose claimed to have seen only a white wire, which he associated with a valve installed earlier in that location. Although he and his brother were working on the left side of the roadway, and the gas line markings were on the right side, he denied having relied on the markings. His experience, he said, was that unmarked utilities are present about 75% of the time.
Both Raboso brothers and a Revoli supervisor testified about a fairly extensive safety program. Ultimately, the ALJ found that not enough detail had been provided, and stressed that it was proof of insufficiency that roughly 25-30% of Revoli’s Portuguese-speaking employees were not sufficiently proficient in English to take part in safety meetings without interpretation, of unknown reliability, by bilingual fellow employees.
Revoli's safety program, as described by its witnesses, was less than exemplary. Nevertheless, I thought its sufficiency to be, at worst, a close question, which perhaps should have gone Revoli’s way. The Secretary has the burden of proof, and Revoli - having operated from 1986 until 2009 without ever previously severing a utility line - must have been doing something right in its training.
However, the ALJ agreed with the Secretary, and characterized the employer's moderately convincing evidence of an earnest safety program as "pallid." He stressed the employees' lack of proficiency in English, and the lack of oral and written safety training in Portuguese, as making "compelling" his finding of a failure-to-train OSHA violation.
Unfortunately, most safety training of the construction rank-and-file, OSHA's courses included, is not very effective, even when workers are instructed in their first languages. Much material is technically too sophisticated, and infected with acronyms, buzzwords, and jargon. While Spanish is so widespread that there exist construction safety materials in that language, a question persists as to what extent it's realistic (or equitable) to impose upon private employers a duty to provide extensive training in multiple languages. While roughly 9 of 10 U.S. residents use either English or Spanish at home, there are at least 20 languages having 200,000 or more first speakers, and a dizzying total of 337 languages in all. Translation services in most languages other than Western European languages, Mandarin, and a handful of others are lacking, or expensive, and decline in accuracy in proportion to the technical sophistication of the source language material. Investing in training materials in most languages spoken across the country is of doubtful value, not only because the small numbers of speakers, but because many in the target audience have limited reading ability in their first languages. Indeed, languages spoken at home in some immigrant communities are scarcely used as written mediums in their native countries.
As for the citation item alleging a failure to determine the gas line location, while the ALJ conceded that the Secretary had not overcome Revoli's evidence that the gas line’s location was mismarked, he found that Revoli knew or should have known of the violation anyway. Here again, the employers' witnesses were disbelieved, and that of the police officer and OSHA compliance officer found wholly credible. The ALJ "bootstrapped" a finding that the police officer had testified accurately concerning what he allegedly saw in the trench, from a distance of 15-20 feet, by referring to photographs taken after the line had been severed that did not necessarily represent what Pedro had seen, before Jose severed the pipe upon removing the third bucketful. Indeed, the ALJ again stressed the alleged lack of training (and in Portuguese) in finding that the Rabosos knew the gas line was there, and perversely elected to sever it.
The desirability of producing useful and effective training materials in the two dozen or so languages having numbers of speakers justifying the effort might profitably be addressed by some coalition of government, construction, labor, immigrants’ rights, and ethnic advocacy groups. Requiring individual employers to "reinvent the wheel," by devising training materials in moderately widespread languages (such as Portuguese) is uneconomical. Moreover, more "bang for the buck" would probably be obtained by assessing and improving existing materials in English and Spanish - and OSHA should abandon, as oppressive and unachievable, the principle that employers are obligated to offer thorough training in any and every language.
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