Sometimes, complying with OSHA can be tricky. There are many construction-related standards, and some of them require careful monitoring, or the application of some technical expertise. Others, however, are pretty much matters of common sense.
If your employees are engaged in the application of “harmful contaminants,” including but not limited to “paints, coating, herbicides, or insecticides,” you need to provide them with “adequate washing facilities.”
The relevant standard, 29 C.F.R. § 1926.51(f)(1), requires that washing facilities “be in near proximity to the worksite and shall be so equipped as to enable employees to remove such substances.”
As an Administrative Law Judge held in Secretary v. Eshbach Brothers, L.P., a water hose and a 55-gallon drum won’t suffice as an “adequate washing facility.” While the standard in question does not expressly so provide, the Secretary has determined that workers exposed to Portland cement must be provided with clean water, non-alkaline soap, and towels. Since the Secretary’s interpretation is entitled to deference if reasonable, these simple requirements were upheld by the ALJ.
Eshbach was doing masonry work, as a subcontractor, on a National Guard facility in Pennsylvania. An OSHA compliance officer inspecting the jobsite viewed Eshbach’s employees perspiring in the July heat, mixing Portland cement with water, and getting wet cement on their hands and arms. He photographed open bags of Portland cement displaying large-type warnings that, when in contact with moisture in the eyes or on skin, or mixed with water, the material becomes highly caustic, and can damage or severely burn the eyes or skin.
Asked by the compliance officer what employees used to wash up with, an employee, Timothy O’Brien, pointed to the water hose and 55-gallon drum. Eshbach was cited for a “Serious” violation of the standard, and contested the citation and the penalty.
On the day of the inspection, the OSHA compliance officer had spoken both with the general contractor’s job superintendent, John Yeich, and with the employer-subcontractor’s foreman, John Gechter. Mr. Yeich had assured him that he would assist the employer, to ensure that the condition was corrected. On the following day, the compliance officer telephoned Wilson Eshbach, a senior manager of the employer having safety oversight, and was again assured that the situation would be corrected.
At the trial, however, Eshbach sought to fashion a defense, based upon the existence of a bathroom inside the general contractor’s trailer. O’Brien testified that, while he had never actually used the bathroom in the trailer, he and other employees did have access to it. O’Brien stated that his custom was to use the hose to clean off cement; that he washed with soap and water at home; and that, in three years of working for Eshbach, he had never suffered any cement burns.
The employer’s foreman, Mr. Gechter, testified that Dolan’s trailer was favored by employees as it had air conditioning, and that Eshbach conducted its safety meetings there. O’Brien, however, testified that Gechter had never spoken to him about washing up with soap and water, and Gechter stated that he had not been aware of the hand-washing requirement when the compliance officer spoke with him.
While it’s rare that one can diagnose with certainty, just by reading a decision, that witnesses for the losing side were insufficiently prepared, that may have been the case here. I suspect that Eshbach’s representative failed to think through his “theory of the case,” and just how he intended to establish it through the employer’s witnesses.
Not only did Eshbach fail to offer any evidence that any employees actually used the lavatory in the job trailer for washing up after handling cement, it failed to show that employees had been told they could use the trailer for that purpose.
Mr. Gechter, the employer’s foreman and “competent person,” testified not only that he had not even inspected the bathroom in the trailer to ascertain that it contained towels, but that he had been wholly unaware of “the hand-washing thing.” It could not have favorably impressed the ALJ that the so-called “competent person” testified that he had been “floored” by how much the CO “kept going on” about the “thing.”
In developing a defense strategy ? indeed, in determining whether to contest a citation ? you need to know (and to make sure your attorney understands) the practical and economic realities of OSHA litigation.
It’s not that OSHRC proceedings are completely stacked against you. The ALJs are knowledgeable specialists, and nearly always conscientious in their application of the law. Nevertheless, as the respondent, you have significant, built-in disadvantages.
One is that the DOL has attorneys on salary, not billing at hourly rates, who know the OSH Act back to front (and are known to the judges, too). And, while it’s “good news” is that monetary penalties under OSHA are generally modest, a “bad news” consequence of that happy fact is that few, if any, private attorneys make their living mostly by defending OSHA citations. As a result, your lawyer will almost certainly have less relevant experience, and less in-depth knowledge of the OSHA standards, than his DOL adversary. He or she will have a “learning curve” in nearly every case.
It’s a challenge, too, for a private attorney to properly prepare your OSHA case for trial, in a manner commensurate with the (usually) small amount of money involved. In all but the smallest commercial cases, for example, depositions are almost a given — but in an OSHA case, even deposing the CO will often be an extravagance.
While I wouldn’t accuse the ALJ’s of raw partiality, the DOL (as I trust that everybody knows) is the “home team” at an OSHRC trial. The same CO you believe to have been lazy and careless, to have made up facts to paper over his sloppy work, and whose trial testimony impressed you as inconsistent, evasive and unconvincing, will appear in the ALJ’s decision as an upright, unbiased and wholly credible witness. If your only route to winning at trial will unavoidably require you to run directly over the testimony of a government witness — if you lack any defense, sufficient to get the citation vacated, that doesn’t depend upon the ALJ finding that the CO testified untruthfully — your best alternative might be to throw in the towel. While few OSHA cases are straight-up “swearing contests,” that’s not a match you can hope to win on points. Where there is no basis on which the case can be decided, other than a finding as to the truthfulness of a CO or other government witness, it’s not enough to lay a glove on him in cross-examination; you will almost always need to “put him on the canvas.”
Know, too, that the ALJ, by emphasizing that the outcome reached was very much based upon his assessment of the truthfulness of witnesses who appeared and testified before him, can come close to foreclosing all prospects of a successful appeal. Findings of fact, to the extent that the same are based on a judge’s findings concerning the credibility of witnesses, are all but untouchable on appeal.
A related disadvantage is that, under the Federal Rules, essentially anything said by employees can be deemed an admission by the employer, and will not be excluded as hearsay. Plus, hearsay is admissibleunder the rules governing administrative proceedings ? and, in addition, there are rules (in the nature of whistleblower protections) which limit the disclosure to you of what your employees may have told OSHA personnel.
So, if the compliance officer testifies that an (unidentified) employee of yours told him that violations of the cited standard were both rampant and known to management, your lawyer will be in the impossible position of having to “cross-examine” an unnamed witness. If the CO chooses to buttress his case, by stating that employees made statements damaging to the employer, he’s pretty much at liberty to enhance, or even invent outright, such statements. (This is another good reason to treat the CO respectfully during his inspection.)
So — in addition to providing “adequate washing facilities” for your employees — it is indispensable, if you elect to invest in a trial of an OSHA citation, that you have a “theory of the case” (an account of what happened, which if established negates the citation) and a detailed plan as to how to prove it. You must discuss carefully with counsel the nature of your defenses, and agree upon a “theory of the case,” and the evidence to be presented in support. If you fail to identify what you need to prove, what your witnesses are going to say, and exactly what evidence you have that will give you a chance to win, you would be better off, in almost any OSHA case, withdrawing your notice of contest, paying the recommended penalties, and moving on. If the case isn’t worth the legal fees for counsel to meet with your witnesses to prepare them to testify, it’s almost certainly not worth the fees for counsel to appear and actually try the case.
If you would like more information regarding this topic please contact Thomas H. Welby at