Safety and OSHA News

Was he fired for safety violation or racial discrimination?

lockout-tagout2

Have you ever fired someone for violating a company safety rule? In this case, a company did just that and then found itself in court on a charge of racial discrimination.

Georgia-Pacific fired supervisor Ezra Brady for instructing an employee to use an improper lockout procedure. The plant manager claimed the result was that an energy source wasn’t isolated and employees were at risk. The company said Brady willfully violated company policy.

The company had safety rules in its employee handbook that spelled out lockout requirements.

Brady filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that he’d been fired as a result of racial discrimination. Brady says he was fired for a first offense, while two white employees were only suspended for three days for the same offense.

When the EEOC found reasonable cause that Georgia-Pacific had racially discriminated against him, Brady filed a lawsuit against the company. G-P asked to have the case thrown out.

The court agreed to throw out Brady’s lawsuit because he didn’t prove that his employer gave preferential treatment to another employee under nearly identical circumstances.

In one situation in which a white employee was suspended, the worker was making repairs on a conveyor and reached far enough into it to have required a lock-out. The plant manager said this employee was only suspended for three days because he didn’t put any other employees in danger. The court found this didn’t qualify as a nearly identical circumstance.

In the second case, a manager and two other employees were conducting an inspection. One employee turned off a breaker to a machine. None of the three had a lock for the breaker, and the manager decided one wasn’t needed because he was supervising the situation. That manager also received a three-day suspension. Management said this case was not a willful violation of company policy because the manager thought he was doing the right thing. Once again, the court said this didn’t qualify as a nearly identical circumstance.

The take-home: Companies can enforce policies that call for firing employees for certain safety infractions. They just need to be careful that disciplinary measures are applied equally.

What does your company policy say about penalties for safety violations? Has your company ever fired someone for safety reasons? Let us know in the Comments Box below.

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  • Joe2

    The failure of Mr Brady to instruct an employee to properly install LO/TO (without isolating energy source), thereby PUTTING OTHER EMPLOYEE AT RISK) is certainly grounds for dismissal, and is not identical to another supervisor who gave instruction to shut down a circuit, and isolating energy source, but failure to install LO/TO equipment. I agree with the courts that both incidents were handled appropriately. The issue here is the Putting Other Employee At Risk…Both supervisors should have know better. Disciplines was surely in order, and justly develed out.

  • Bert Hood

    One supervisor fails to install an energy isolation device and is terminated. Another supervisor also failed to install an energy isolation device because he was supervising the job. However this supervisor was not discharged.

    A third employee was suspended for a lockout violation because this employee was the only person at risk. So managment beleives that one employee at risk os acceptable while more that one is not acceptable.

    I do not beleive this company enforces it’s LOTO policy equally. If the disiplinary action for a LOTO violation is termination then the disiplinary action is termination. A violation that does not put any employee at risk may be acceptable for review but that should be clearly stated in the policy.

  • Jim G

    What we don’t know and assume is where the other two incidents used as a learning experience for all the supervisors, i.e. (all employees must use the company lock out tag out procedures. Failure to follow the company’s LOTO procedures so will lead to disciplinary actions up to and including termination).

    If they used these near miss incidents as learning examples for their employees and made an addendum to their safety policy statement or sent out a memorandum to all employees then I would say they followed proper protocol.

    We all have to remember that it is NOT acceptable for someone or anyone getting injured or killed because of laziness or carelessness.

  • TB

    This is not about race; it is about Fairness & Equality. Employers must determine how they are going to treat certain safety violations. Do we have a zero tolerance, or do we weigh the facts and make a determination based on those facts.

    I believe that employees would rather be treated fairly than equally. In this case the employer weighed the facts and determined what course of action to take based on the facts of each incident. I agree that each of the three incidents were different, and should have been handled differently. The court apparently agreed with those decisions and should be applauded for making the right decision.

    As for the EEOC, I feel that for the most part they do a good job, but occasionally miss the mark. If you truly want equality, then be willing to pay the price. Zero tolerance leaves no room for fairness.

    Employee disconnects power, places lock on disconnect, but fails to lock the lock, zero tolerance or treating employees fairly, what to do? An otherwise good employee, with no previous history or violations, has a momentary slip, vs. an employee with a history of violations; both must be terminated for the same minor violation under a zero tolerance policy. Is this the right thing to do?

    I have asked my employees how they want to be treated, explained the consequences of each method of managing discipline and I have never had a single employee tell me that they wanted to be treated equally.

  • safety first

    The firing was proper! Shortcuts must not be tolerated!

  • Paper Maker

    I know Georgia-Pacific through several colleagues. One of them is a mill HR Director whom I have known for over 30 years. G-P has very strict LOTO procedures as do all other paper mills. Paper mills are VERY capital-intensive compared to most other industries. This means that you can very easily be maimed or killed in a paper mill without proper procedures. Virtually every mill I know of has zero tolerance for willful LOTO violations. The fact that Mr. Brady was a supervisor is evidence of G-P’s commitment to EEOC regulations. Was Mr. brady using the race card to his advantage?

    “Instructing an employee to use an improper lockout procedure” is certainly a willful violation, and whomever did that would be fired in any mill I have ever worked in. The court got it right!

  • D Right One

    I can see how the employee thought he was mistreated. Here you have similar but not exact situations where a policy was broken and consequences where meted out. To the guy that got fired, he thinks that the others were treated less severely than he was. Getting fired when nothing happened seems a bit harsh. I don’t know what the guy may have done in the past with this company, but if it was a first time offense…maybe send him home for a week.

  • Dean

    After reading the senario and having experienced equal treatment, I would say being treated fair is a much better approach. Ultimately a clear message must be sent to supervisors and workers alike, breaking or bending the safety rules will have an impact on your employment and may results in dismissal.

  • Paper Maker

    Just some comments on “fair vs. equal”…. I have had to deal with this conundrum many times. One of the tenets of organized labor is “equality” – treating every one equally. A code word for this is “consistency”. This is also where “precedence” comes into play. Whenever you try to be “fair” with someone in the bargaining unit, you may unknowingly be setting a precedent that gets you into trouble later. Everyone prefers to be treated “fairly”, of course. However, when “fairly” means that I may have to pay a greater penalty than someone else, then I want to be treated “equally.” This dichotomy is brought up almost every time someone is fired for cause. The union and fired employee search for similar cases where termination was not the outcome and then demand “equal treatment.”

    Several years ago, when I worked in Maine, an employee was terminated after endangering other employees by taking a loaded crane over some other workers during a maintenance outage. The union protested and cited a case the previous year where the same thing happened in another area of the mill. It turned out that the employee in the cited case was not terminated – he had not been properly trained, and he was instructed by a senior hourly employee to move the load. The senior hourly employee did not know the other employee was not trained to use a crane. This case went all the way to arbitration and the company won – the terminated employee stayed terminated. This person had a horrible safety record and a history of insubordination. After the arbitration, a union official told me on the sly, “It’s about time YOU got rid of that guy! He was dangerous.”

  • Robert Karp

    I agree with Bert Hood up second from the top of all the posts.

    I am a Safety Coordinator.

    LOTO does not specify that a tag out is required only when more then one person is involved. LOTO is there to protect anyone around a machine that can be injured if the machine is placed into operation. Whether it be electrical, pneumatic or hydrolic.

    Had OSHA been on the scene and saw this they would have cited for all three incidents.

    Since the supervisor already knew about the two previous incidents, then he should have known better himself.

    I do not believe the Manager of that one incident, He was trying to cut corners to save time, he did not think he was doing the right thing, he just didn’t think he would be questioned or caught.

    All three cases were in violation of company LOTO policy and all three deserve equal treatment.

    The supervisor was correct in taking it to court on the grounds of equal treatment.

    The court is wrong and I do think that discrimination does apply and the Supervisor should appeal the case.

  • EHS Pro

    D Right One Said: “Getting fired when nothing happened seems a bit harsh. I don’t know what the guy may have done in the past with this company, but if it was a first time offense…maybe send him home for a week.”

    This is why I have established a progressive disciplinary action policy and procedure to provide guideance for area managers and supervisors. However I must note that depending on the severity of the infraction and its potential outcome (regardless if no one got hurt THIS time) a first time offense could be cause for termination of employment.

    In addition something that needs to be considered is the employees past history; does the employee have a history of habitually disregarding safe work practices and policies and procedures? This is why it’s important that area managers, supervisors, and the EHS department ensure anytime an employee fails to follow safe work practices and/or EHS policies and procedures it is documented and this includes documenting verbal warnings to the employee. I maintain a log and whenever I verbally warn an employee I note the date, the employee involved, what infraction occurred, and that the employee was verbally warned. Doing this has come in handy when it comes time to fire an employee, you have to have documentation!

  • Joe2

    Hey “D”, I can feel Mr Bradley’s pain, but I can’t understand his logic. Had OSHA been around to see him “Instrust” an employee improperly use LO/TO (even though no one got hurt) the company would have been hit with a “Willful” violation fine. The 2 senarios were not the same. However, both Supervisors were punished, like they both should have been. But, like TR said, it was not a matter of equals, but Fairness. We can use the race card (because we can), but I glad the courts saw through it and held their ground.

  • Janie

    I have to agree with courts; willfully instructing and teaching a subordinate employee to use an unsafe practice should be a fire-able offense. Neither of the other scenarios was a situation where a manager instructed an employee to use an unsafe procedure. Banana’s to Oranges is not the same as Apples to Apples.

    Just my opinion of course.

  • Tom

    Fortunately, the court understood and the EEOC, as expected, did not. Rules apply to all equally and idividuals who use race to justify preferential treatment run the risk of suffering the consequence. In this case it was all about maintaining a safe work place, hope the employee learned something from this experience and when he no longer is unemployed he will, hopefully, not expect such preferential treatment with his new employer, it is illegal!

  • HR 1

    Having read all of the blogs thus far, I agree with some of the readers who confer that the courts made a faulty decision. I do not think this was about race. I agree that due to the fact that the terminated employee was a supervisor it could be a testimony to G-P’s EEOC commitment. However, in this case where a white manager “thought he was doing the right thing” and a black supervisor “willfully violated the LOTO codes” by instructing another employee, I think that a manager would be more liable considering that they of all people should know better. The point of risking more than one life vs. just the life of the employee, applies to both of these situations due to the manager being around three people and the supervisor training another person. However, one or more person exposed to danger should be not tolerated in the policy – casualties should not be weighed by how many people, one person is enough. So had the supervisor said that he mistakenly gave improper directions would that be cause for a warning? My problem is the proof of willful misconduct. There is a thin line here because of the precedent set when G-P accepted the manager’s excuse of violation of the code. Had the supervisor requested further training in exchange for his mistake would they re-train or still fired him then? In this case, I would look for an explanation for violation due to making an exception for the manager- did he disagree with the code?, did he misunderstand the code? was he fully trained for this job? Was he taking a shortcut? In all cases, if the policy was to ensure the safety of their employees, I do believe a zero tolerance procedure is in order. However, if the company allows for human error, willful violations should be clearly defined and intent should be proven.

  • HR 1

    I agree with Robert Karp – it’s not about race it’s about equal treatment. A violation is a violation. The company opened the door by accepting the manager’s excuse. So if they are going to be giving out second chances in order to be “fair” – then where was his? At this point, I would still look for intent – willful misconduct. How do we know if he himself was trained properly, etc.?

  • Joe2

    HR1, the facts are that the fired Super gave an “un-lawful” order to a subordinate, with no regards to his or others safety. His issue was that an energy source had NOT been isolated. Note that he had been issued GP’s hand book on Safety, which spelled out LO/TO requirements (He know the rules). MR Brady, as a superv is held to a higher standard than the “worker” who was suspended because he failed to use LO/TO (note that LO/TO is designed to protect 1st and formost, the person performing maintenance on equipment)…As for the White manager suspended, the energy source HAD beed isolated, just not locked out, thus not putting the mant worker at risk. His issue that warrented the suspension was that if for any emergency reason he was call away, the breaker could have been left unattended, resulting in an accidental re-energization, and injury… As a non-white, I am appalled that anyone would use the race card to decry miss treatment, especially when there are WRONG, and know it. Racism runs rampant in the country. He should save that card for when he “will” really need it…The courts were right.

  • Tom A.

    Thanks, Joe2, for your input. Although all of the incidents were questionable as far as protocol, as well as good common sense. The LO/TO program is designed to protect everyone. The way it is enforced should not be, and I don’t think in this instance it was a racial decision. Regardless of the position of the employee, all were penalized for their mistakes.
    When mistakes are made, there must be consequences, thank goodness it was not loss of life.

  • Robert Karp

    Joe2,

    I see your point of view and I agree with you. I’ve thought about it for a while and change my position that the courts did make a right decision.

  • Karen

    D Right One,
    I just have to comment on your quote “Getting fired when nothing happened seems a bit harsh.”

    This is a common perception for people who do not work in a heavy manufacturing environment. You have to realize that if “something” happened instead of “nothing”, there is a high probability of a fatality. We aren’t worried about a few stitches or a broken limb. We worry about missing limbs, permanent disability and death. I agree that you are seriously impacting a person’s whole life when you fire someone. It is not something to take lightly or in haste. But, when the alternative is unsafe behavior, the impact is much greater. You owe it to all of the other workers to do everything you can to keep them safe.
    The fact that this guy was a supervisor makes it so much worse. His direct reports are literally at his mercy in this situation. GP did the right thing.

  • Todd

    I am in a similar situation, I got fired for not following proper lo/to procedures. The company I worked for always said there is “grey areas” I thought I was in the grey area. I was instructed to complete a job, I did the job myself because I felt there was risk, a job that I was not qualified for and got injured. It wasn’t OSHA recordable but I got fired. Other employees who didn’t follow proper procedure didn’t even get wrote up, they were the plant managers buddies. What does anyone have to say about that?

  • Robert

    There are no Gray Areas. If it’s a gray area then it’s wrong. They probably wouldn’t have fired you if nothing went wrong but to the company because you got hurt it’s obvious to them that you were not the man for the job. If you’re going to take risks like that, then they can’t risk keeping you on.

    Information about others getting away with things because they are buddies isn’t good information. That’s only your perspective.

  • Paper Maker

    Todd, You were fired (hopefully) because you violated LOTO, not because you had a minor injury. In every company I have worked for in the past 35 years, violation of LOTO is a fireable offense. You state that you were not qualified, so what the heck were you thinking? Are you in management? If so, all the more reason to be fired for violating LOTO. Management violations of procedures or policies are deadly to any organization. Firing a managment person sends a very strong message. By the way, the “they are dong it too” defense just doesn’t work for me. If you are looking for sympathy, look elsewhere.

  • http://safetynewsalert.com Adrian

    What set this manager apart from the others is that he told his employee to cheat which not only is a core safety violation put into action but is an integrity issue. He was BLATANT in what he did is the key here. He put other employees safety at risk. It’s people like him that cost organizations thousands of dollars.