Safety and OSHA News

Did ‘unpreventable employee misconduct’ lead to confined space emergency?

A worker had to be rescued after passing out in a confined space. OSHA issued fines, but the company argued this was “unpreventable employee misconduct.” Did a court throw out the fine? 

On Jan. 28, 2009, Bobby Fox, a supervisor at Dana Container in Summit, IL, disregarded safety rules and entered a tank before cleaning it. Fox didn’t attach himself to a retrieval device or follow entry permit procedures.

A co-worker looked inside the tank, saw Fox unconscious in a pool of chemical sludge and called 9-1-1. Firefighters hoisted Fox out. He was taken to a hospital and survived.

OSHA issued serious and willful citations to Dana Container for violations of premit-required confined space regulations. While some violations were thrown out, many were upheld by the Occupational Safety and Health Review Commission (OSHRC).

Recently, the Seventh Circuit ruled on Dana Container’s appeal of the upheld violations.

Strong written safety program, but …

Dana Container made three arguments:

  • unpreventable employee misconduct
  • OSHA didn’t prove willful intent of some violations, and
  • OSHA should have found the company satisfied the standard for alternate entry procedures.

The OSHRC found Dana’s safety program was inadequate.

Nearly all of the tank entry permits contained errors or omissions. Some permits:

  • said the entries had exceeded the maximum duration of 20 minutes by over an hour
  • lacked required air monitoring results
  • failed to show the duration for which the permit was valid
  • indicated employees hadn’t reviewed material safety data sheets, and
  • failed to name either the entrant or the entry attendant.

There was no evidence that Dana’s supervisors followed up on any of the entry permit problems.

Therefore, the Seventh Circuit found the OSHRC was justified in finding Dana failed to enforce its safety program.

“The Commission was entitled to find that the uncorrected permit violations exhibited a pattern of disregard for the rules at Dana,” the court wrote. “Even in the face of a robust written program, lax disregard of the rules can send a message to employees that a company does not make safety a priority.”

To use the unpreventable employee misconduct defense, an employer must show that it took steps to discover violations. Dana failed to take those steps, the court said.

To counter the willful characterization of some of the violations, Dana argued it demonstrated a good faith effort to comply with regulations. Dana noted it had rules prohibiting exactly what Fox did.

However, the OSHRC found that, even though Dana had work rules, supervisors never disciplined an employee for improperly completing entry permits. Therefore, Dana didn’t prove it made a good faith effort to comply with rules, the court said.

To meet the requirements for alternate entry, Dana had to show:

  • potentially hazardous substances weren’t expected to approach the level at which they would create a hazardous atmosphere
  • continuous forced air ventilation alone was sufficient to keep the tanks safe for entry, and
  • it had monitoring and inspection data to support such a finding before any employee could use the alternate procedures.

The OSHRC found Dana didn’t meet the requirements because it couldn’t identify relevant testing that established the process removed all potential hazards or that its forced air system was effective.

The Seventh Circuit upheld the OSHRC’s findings, including the willful characterization of some of the violations.

The court’s messsage: A good safety program on paper isn’t enough. You have to show it’s actually carried out, including appropriate employee discipline when they violate safety rules.

(Dana Container Inc. v. Secretary of Labor)

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