Safety and OSHA News

Why are Wal-Mart and OSHA fighting over a $7K fine?


The New York Times reports that Wal-Mart has spent $2 million so far fighting a $7,000 OSHA fine in connection with the trampling death of a worker. Equally interesting is that OSHA has also devoted lots of resources to make sure this fine sticks. Why? Because the outcome of this case could have wide reaching effects on all sorts of companies.

On the day after Thanksgiving 2008, shoppers trampled a store clerk to death at a Wal-Mart on Long Island.

The world’s largest retailer settled the case with the Nassau County district attorney. Wal-Mart agreed to:

  • adopt new crowd control techniques in all 92 of its New York State stores
  • create a $400,000 fund for customers injured in the stampede, and
  • donate $1.5 million to various community programs.

A $7,000 fine is a drop in the bucket for the huge retailer. Yet, it’s spent more money fighting OSHA than it did in the state settlement.

OSHA doesn’t have regulations about crowd control in retail or any type of establishment. So it used its general duty clause (GDC) to issue one citation against Wal-Mart for failing to take steps to protect its employees from a situation that was likely to cause injury or death because of a crowd surge or trampling.

The GDC says employers have a general duty to provide a place of employment that is “free from recognized hazards.” OSHA uses the GDC to issue citations when no federal safety regulation applies directly to a hazardous situation.

Wal-Mart says OSHA is trying to enforce a vague standard when there was no previous federal government or retail industry guidance on how to prevent the trampling death.

The retail giant has filed motions questioning the constitutionality of using the GDC in this case.

The Times article questions why Wal-Mart is spending so much on fighting the small fine.

But the same could be asked of OSHA. It’s worth questioning the huge amount of resources OSHA is using. The article notes OSHA has poured 4,725 hours of work by federal legal staffers into this case. Officials told The Times that over the last five months, 17% of the available attorney hours in OSHA’s New York office have been devoted to the Wal-Mart fine — the equivalent of five full-time lawyers.

One reason Wal-mart is fighting the fine so hard: If another trampling injury or death happens to an employee at any of its other U.S. stores, the company would face even larger repeat fines.

For OSHA, the stakes may be even higher. The agency, under President Obama’s appointee, David Michaels, has signaled that it intends to use the GDC more often to hold employers accountable for identifying and protecting employees against hazards.

For example, Michaels is on record saying that OSHA can’t possibly keep up with creating permissible exposure limits (PELs) for all the new chemicals used by U.S. companies. Instead, OSHA has proposed requiring companies to create their own injury and illness prevention programs (i2p2) to identify hazards.

The i2p2 program would make it that much easier for OSHA to use the GDC against companies. Once a company identifies a hazard, it becomes a “recognized hazard,” that satisfies a condition for using the GDC.

But creating the i2p2 requirement will take time, possibly years, just like any other federal rulemaking process.

In the meantime, OSHA relies on using the GDC in its current form in cases such as this one.

The case is before the independent Occupational Safety and Health Review Commission (OSHRC). If OSHRC rules in Wal-Mart’s favor, it could greatly limit OSHA’s ability to use the GDC not only in retail crowd control but in any other occupational area that’s not covered by a current federal safety regulation.

OSHRC heard the case last week. We’ll keep you updated.

Did OSHA make the right call in this case by using the GDC to issue a fine against Wal-Mart in the trampling death of its employee? What do you think about OSHA’s use of the GDC where no federal safety regulation applies to a specific hazard? Let us know in the Comments Box below.

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  1. While I am sympathetic to the employee who lost their life, I don’t believe WalMart could have foreseen the selfish out of control crowd. Why is walmart being punished for the crowd’s behavior? I think it is a slippery slope & I understand why walmart is fighting the fine.

  2. George K. says:

    OSHA should consider fining the people that trampled the poor fellow, aren’t they as equally responsible for his death? If the guy who pulled the trigger is guilty, and the manufacturers of the gun and the bullets are guilty, I would consider every foot that stepped on that poor fellow a bullet!! OSHA, go after them!!!
    OSHA should admit it, they do not have a clear specific regulation for this activity, they are very clear in showing how everyone else is always wrong…. They should man up!!!!

  3. OSHA should be fined $1B or three times what it has spent prosecuting this case for misuse of taxpayer funds. David Michaels should be jailed for criminal abuse of power. OSHA should ultimately be eliminated and possiby replaced with an agency that assists American business instead of trying to force it overseas.

  4. Does Wal-Mart realize this was a human being with a family and possibly children. I shop at Wal-Mart just like anyone else but they are fighting OSHA because they are assuming this may happen again at another store. Arn’t they supposed to be putting a program/policy in place to prevent something like this?

  5. Fair Treatment for All says:

    As a safety professional, I went to law school NOT to practice law, but rather to help those better understand and comply with OSHA and prevent govt. abuse of power. That being said, one could argue the “recognizability” of a customer surge resulting in the trampling death of an employee. It would be interesting to hear the logic behind the interpretation of discoverable data concerning the frequency and severity of “customer surge” resulting in injury and/or death of a customer or employee. OSHA only exercises jurisdiction in the case of an existing employee/employers relationship. Regarding a customer, other authorities would have jurisdiction.

  6. Eddie Hamner says:

    How our we (supervisors) supposed to know the mind set of every person who shops at Wal Mart or any other store? A person has to assume that people will ack in a responsible manner when shopping, if not then you may be accused of profiling. OSHA wants companies to think the worst of their employees in every situation. This way they can maintain their thought that you are guilty until you prove yourself innocent.

  7. Joe Bennett says:

    I agree with George. Walmart wasn’t the one doing the trampling. OSHA is suppose to oversee work place safety not mob violence.

  8. While I believe that WalMart is responsible for not addressing a recognized hazard the responsibility is shared with those who committed the offense. I am sure that a number of people could be identified trampling the employee with no thought or concern for that employee. Human behavior is often the root cause in any incident either through carelessness or complete lack of concern. How would the public react if WalMarts response was to equip its employees with riot gear?

  9. Wal-Mart should not have arranged their opening to allow a crowd to do that. If they didn’t have stupid deals, open the doors ten minutes later than the advertised time, etc. this terrible thing would not have happened.

  10. I agree with most everything you guys have said, but the kudos of the hour goes to Dale. Now, we all know OSHA is good for the employee, not the employer. So, I think OSHA is a good thing, because we all learned as children that the only way we do things we are supposed to do is because of the following punishment if we don’t. The American worker would likely still be less important than the production quota if there were never any punishment/fine/repercussion inforced for hazardous situations. Even those who hope for an eternity in heaven would never make it if there was not a punishment promised for failure to serve and obey. I don’t agree that OSHA sould still be persuing this case, but at the same time, I hope we would all agree that some entity should be involved in ensuring that Wal-Mart, and all stores that wish to have these crowd drawing events, create some kind of plan to protect employees as well as costomers.

  11. I feel like George K. the people were out of control like at a riot scene, except greedy persons looking for a bargain, at any ones expense ,go after them . This is plain out Manslaughter.
    OSHA is wrong.

  12. I have to agree with Wal-Mart. Although I do have sympathy for the employee, I do believe that David Michaels is out to make a name for himself. I be that if taken down the basic core, Mr. Michaels couldn’t care less about that employee. How could Wal-Mart, or any other retail store, have possibly known that this would have happened? Is mgt. now required to be able to read the mind of selfish, I want it now, it’s all about me, people. It is truely a sad day in American society when we have to kill a store worker just to purchase a material item.

  13. Jesslee says:

    I agree with OSHA point of view. All to often large corporations are allowed to get off easy when it comes to this kind of incident. Wal-Mart should care more about it’s employees than fighting a fine. The money Wal-Mart has spent to fight this fine could be used to set up a fund for any injured Wal-Mart employees.

  14. Can’t add to what Dale said but it bears repeating.
    “OSHA should be fined $1B or three times what it has spent prosecuting this case for misuse of taxpayer funds. David Michaels should be jailed for criminal abuse of power. OSHA should ultimately be eliminated and possiby replaced with an agency that assists American business instead of trying to force it overseas.”

  15. I’ll have to side with Wal-Mart in this dispute. None of us is all-seeing all-knowing yet OSHA is trying to hold us accountable for not being so. OSHA management is using this unfortunate incident (for all concerned) as a springboard to expand their control over businesses in general by gaining the power to apply vague law to specific incidents. I would hope that OSHA loses this challenge.

  16. Antonio says:

    I have to say I’m not a Wal-Mart fan at all, and I disagree with many of their business practices, but being honest, I have to give this one to Wal-Mart. This cannot be a “recognized” hazard. I would say that even if the best OSHA experts would had make a job safety analysis on this clerk position, would have never identify this as a risk. I mean, the job is to welcome customers! Civilized people!! , Not to control herds of uncontrolled animals!!
    Now that Wal-Mart has a better knowledge of their “customers behaviors’, I totally agree this can be prevented in the future, and Wal-Mart shall take measurements to prevent re-occurrence, since it is now an obvious recognized risk.

  17. Charles says:

    Why is OSHA spending so much on fighting the small fine? Because it can, since this arrogant misuse of power and the GDC is funded by taxpayers, whose pockets are deeper than Wal-Mart’s. If successful, OSHA will undoubtedly use GDC in the future to chastise Wal-Mart for its failure to have a special plan in anticipation of damage control when a meteorite strikes a store.

  18. George K. says:

    Dale’s observations regarding fining OSHA for wasting tax payer money is probably a prudent move. However, the fine should be in the form of reducing those involved in pursuing this case to be fired.
    Jan also needs to be reminded that Wal-mart did agree to adopt new techniques regarding crowd control, so this tragedy does not re occur. They are acting in the best interest of everyone, 1. by settling with everyone rapidly and 2 with agreeing to implement new measures to prevent and if it occurs again to compensate.
    Now, OSHA is a reactionary agency. So Fair Treatment should know that there isn’t any frequency to this occurrance otherwise OSHA would have dedicated one or two chapters to this type of situation. Hence, almost making the GDC an inapplicable argument in this case.

  19. Ted Bean says:

    I’ve worked in retail and seen what can happen when stores offer unusual bargains and limited quantities. Wal-Mart knew or should have known the risks. You can’t dump a bucket of bloody fish guts into the ocean and then blame the sharks for their frenzy.

  20. Wal-Mart, and others, advertise door buster, or other so named sale prices at this time of the year specifically to put crowds in front of the doors before they open. They put a limit on the time the prices or amount of product are available. This combined with known issues from the past of crowds getting out of control seems to be creating a hazardous condition. Not training or failing to have the necessary amount of employees to do the anticipated job would be at minimum not complying with the GDC.
    Companies are as aware of the behavior of crowds as they are aware of the dangers of high pressure steam. I feel the safety of the employee was not taken into consideration at all and justifies the action OSHA has taken. A retail store employee has to be as protected from known hazards as a construction worker of miner and Wal-Mart chose to ignore the known dangers of what they were doing, because they thought the chances were small, in there calculation, of this happening. But the record is clear that this has happened before and Wal-Mart and other stores are aware of it.

  21. SafetyMan says:

    Scott – Turn on the evening news on any Black Friday and the lead story is always some horde of shoppers storming a Wal-Mart or other retailer. I mean, shoppers stop at nothing to get in the store and snag up bargains. It happens every year and Wal-Mart should have recognized trampling as a possible hazard.
    George – OSHA will never go after customers. How does OSHA find them and prove a case? They can and do, however, go after the establishment at which the event occurred.
    Dale – I like your ideas. Good luck with that happening.
    Jan – Don’t count me in your “like anyone else.” I don’t shop at Wal-Mart.
    Fair – It’s apparent to me you went to law school.

  22. Again OSHA”s new focus on compliance and bull headed citation policies have created a stalemate and rift that serves no positive purpose. Walmart is not the only enity standing up against the “New Sheriff in Town”. All of the positive efforts and shared accountability that we managed to create over the past twenty plus years using common sense and diplomacy with a regulatory agency “OSHA” is on the line! Three cheers for Walmart!! Lets hope and pray they prevail, otherwise we are in for a miserable and contentious existance until the current administration is replaced with folks who have some commen sense. “Wake Up OSHA”

  23. William Ferry says:

    The store placed numerous products on sale for the holiday season. The store promoted the sale start time aggressively. Customers had been lined up outside the store for extended periods of time waiting to gain entry. No crowd control mechanisms were designed or implemented. The employee opening the door was trampled to death.

    How is this not a reasonably foreseeable work hazard? Granted, it is unique to the timing of the sale event; it is still foreseeable. Has anyone watched how AT&T controls the crowd at the launch of a new Apple product? Has anyone watched the running of the bulls? Wal-Mart looks more like Pamplona in this matter.

    I do not suggest that manager at that location is personally responsible for the behavior of the crazed mob; if the police can determine the actual identity of anyone who actually hit the employee in their mad rush for a 60 inch LCD TV, they should criminally prosecute the case. That notwithstanding, the manager is corporately responsible for failure to exercise reasonable foresight to prevent the tragedy that occurred.

  24. As a Safety Professional.
    The REAL issue here is OSHA using the General Duty Clause where ever and when ever they want.
    The OSHA law is quite specific and was written from a performance perspective, which I think is the correct way. OSHA lets us know what should be done and then we figure out how to accomplish it. Companies can run their business without OSHA (the Government) telling them how to do it.
    I don’t blame WalMart for fighting this Bogus fine. I sincerely hope they win…for all of us.

  25. Go get them Walmart. I do not like the idea of the GDC. If anyone in this case should of been fined they should of gone after the person or persons who trampled Walmart employee. I cant believe that Fed OSHA is waisting so much money on this when states are having to layoff teachers and cut senior citzen programs to make ends meet.

  26. People Will Only Treat You the Way You Allow Them to Treat You says:

    I have to agree with Scott, George, and Dale. Not in that OSHA should go after the customers that trampled the employee, but more so in that local law enforcement should. The greed and selfishness of others let to the lead to the death, nay I say murder, of another human being. Who is holding them responsible? I agree that Wal-Mart should be held responsible to a degree, it is no secret what that shopping day is like, and there should have been more in the way of crowd control. However, Wal-Mart paid it’s dues in the settlement with the Nassau County District Attorney. Also, I am sure the employees’ family went after Wal-Mart in a civil case. OSHA has no business in this situation, they are spending an obscene amount of taxpayer dollars to persue this and truth be told at this point they are just trying to save face. “Criminal abuse of power” is right on target, I find it odd that Wal-Mart will release actual dollar amounts spent fighting this case but OSHA only talks in hours. Regardless of all of that people should remember a man lost his life, a wife lost her husband, children lost their father, the community lost one of it’s members, and good or bad he is still a human being, a living breathing person. Why have no citizens invovled in the trampling of this man been arrested? Where is the justice in this case? Is there really a difference in this and a store clerk being shot during a robbery?

  27. I’m all for safety in the work place and keeping compliant with OSHA but I have to agree with Wal-Mart’s stand and draw the line with OSHA’s generic ruling. No one likes to see people get hurt or in this case killed but to place fault on Wal-Mart and a fine doesn’t resolve anything. The persons with no consideration for life or anyone but them selves that caused the death of this employee, should be held accountable for their actions. OSHA should not think that a lesson is to be taught here by issuing a fine when there are no regulations on crowd control in this instance. OSHA should be thinking of a regulations that help keep employee’s and or pedestrian safe from harms way during heavy crowd events. For instant, single file entries at each door, turnstile entries, crowd warming announcements, etc, but to hand out a fine to Wal-Mart for someone else actions is unclear. When a regulation is in place and only then when the regulation is not followed, a fine or legal retribution should be implemented. OSHA should not be making up regulations and fines as they go! P.S. Jan; I think you miss the point of all of this and I think Wal-Mart does understand that a life was taken and steps are to be made to improve the way crowds are to be handled but OSHA has no steps in doing so, they just like to hand out fines for regulations that have not been printed.

  28. Reading through the comments, I can see the logic for both sides of the issue. However, I agree that what it all comes down to we want OSHA to be able to use the GDC whenever, and however they want. It reminds me of the Eminent Domain law, which is also easily abused. In both cases, the government is allowed to make a decision based on what they deem is the law, rather than what the intent of the law actually is. If OSHA didn’t have a specific goal in mind, would they spend all the money, and man hours to enforce a $7,000 fine? Walmart today….the rest of us tomorrow…

  29. I have a problem with OSHA using the GDC as a political tool for whatever administration is in office. Though in this case I agree with the statement that this is certainly recognizable. Every Black Friday we watch the news to see what people were hurt trying to get some popular item! As George and Jan said, both OSHA and Wal-Mart should have clear policies and regulations. The sole goal should be the safety of the employees and the customers. Unfortunly the reality of limiting liability and the progressively increasing fines work against the real goal of safety. To Dale I do not believe OSHA’s goals are to protect businesses or to hurt them. It is a regulatory organization, which is task with the safety of the American workers safety and as such the businesses and our economy. When regulatory agencies do their job and do not waiver for special interest, we would not hear from them were it not for those who do not comply or try to abuse the system. All for one and one for all.

  30. Pamela Craig says:

    This has many facets. WalMart created the environment, but people are responsible for their behavior. If you wanted to track down the criminals, purchases were made with credit cards, checks and other forms of ID. The problem is, is that there is no way to control crowd behavior except to eliminate the crowd, and, for that reason, WalMart should not be held responsible. This is similiar to the fights created during the gas crisis. Were the oil companies held responsible for the behavior of its customers. We need to realize the risks we all take when we participate in a crowded event, and then measure “as individuals” what defenses we think best for our own safety. As long as we have a certain number of people in a limited amount of space some type of injury, from a stepped-on foot to death, can occur. It is unfortunate, and my sympathies to the family.

  31. Outside of “carte blanche” ability to fine anybody using the GDC, my question is this; Why did WalMart have to be held up for $1.5 million to various community programs? What did that have to do with providing a safe workplace?

  32. Stephanie says:

    This was clearly a recognizable hazard – in fact advertising for retailers engaging in these “door buster” deals depict hordes of people rushing the doors of the facility offering the bargains for quite a many years prior to this incident. I find it interesting that other Wal-Mart stores DID have crowd control policies in place for Black Friday shoppers and these plans worked. In my location the Wal-Mart is open 24 hours / 7 days a week so smart shoppers go on Thursday night to get in line for these Friday bargains. The stock is put on the floor in shrink wrap with an employee to watch over the merchandise. Shoppers are allowed to line up at Midnight and as the store has a limited quantity of bargain items to sell each person is given a number that corresponds to their place in line, entitling them to one of the items. Local law enforcement is on hand and the system works. Obviously the stores have some discretion in how they individually handle these situations since nothing similar was enacted in the New York store, however it does place the burden of proof on Wal-Mart to show how the New York incident could be an unrecognizable hazard when other stores in the chain had recognized and implemented sound policies for handling the situation created. Wal-Mart is not some tiny corner establishment that your nice neighbors down the street own, this is a corporate giant that utilizes some of the most cutting edge psychological theory in their marketing, staging and product deployment strategies. To say “Wal-Mart could not know or predict how people would react” is more than slightly disingenious, it is ridiculously naive. I have to side with OSHA on this one because without the precedent of this fine Wal-Mart will continue to allow untrained, unprotected hourly employees stand in the direct line of danger, while declaring that they couldn’t possibly have foreseen this outcome. Wal-Mart should be implementing safety training in all their stores not just the ones in New York, if they took that step it would go a long way towards alleviating the image they have created in trying to avoid paying this miniscule fine.

  33. As a certified safety professional I am going to differ from the masses and side with OSHA on this one. Ed was correct in saying that the real issue is the use of the General Duty Clause. However I believe OSHA needs that clause in order to keep some (not all, or even most) business leaders from making decisions that could lead to the death of their employees or customers. After 20 years in the business, I’ve seen MANY managers, supervisor and engineers take risks that could turn very deadly, and at times were tragic. If there is no specific law against it, they often feel justified to take those risks. They push me to approve their risky plans, and yell at me when I don’t, but they never do the risky action when I don’t approve them–they don’t want the liability! Instead we work out safer ways to accomplish the goals. That’s how it should work. With a general duty clause to provide a workplace free from serious harm, those in charge will have to think more carefully about their actions.

  34. Sprinklerman says:

    I have sympathy for the family of the deceased worker and even Wal-Mart given the behavior of those who showed up at the store to shop that morning. Their reckless and careless attitude is telling.

    However as a Fire Marshal and from the safety standpoint reading the news reports, it is apparent that Wal-Mart didn’t do all it could have done to prevent this incident and in some ways, the actions taken by either the employees or the supervisors most likely lead to the death of the worker.

    In a news reports the workers were placed in a line inside of the doors to “slow down” the shoppers. This was stupid and I believe led directly to the death of this worker. This action was like putting a person face to face with a loaded gun and then pulling the trigger. The outcome was predictable.

    The International Fire Code, Chapter 4, section 403 requires local officials to provide for the publics safety if in the fire code officials opinion an indoor or outdoor event might have an adverse impact on public safety. It requires the owner of the property or the organizer of the event to provide a plan to ensure the publics safety. It is apparent that this was not done. Did Wal-Mart contact the local fire officials to see what needed to be done? I suspect they did not.

    The lack of a safety plan, security and a police presence outside of the store prior to opening would have prevented this.

  35. I just read the news story covering that event. According to the article, there were 2000 people crowded at the doors at 5:00 am. Shortly after the 6:00 am, the store was reclosed because of the death. According to one employee’s account, the crowd was shouting “Tear the doors down!” And, according to the story, the doors were knocked off the hinges. The folks first through the doors did not stand a chance of avoiding collision with employees, for the remaining crowd was pushing the pile. The only way to avoid such a madhouse is to not advertise the event at a set time, such as the opening hour, but to advertise 24 hour shopping with unadvertised, special deals occuring throught the event. Wal-Mart claimed they had barricades, extra store security, second hand security and still, the crowd was uncontrolable. There is an ongoing investigation into the who caused the death, but from what I understand, that will be almost impossible to hold anyone responsible.
    OSHA – work on workplace safety issues, not riots, or crowd control.

  36. Safety Clint says:

    Walmart SHOULD have reasonably known there was a possibility of unruly behavior. That same year in Palm Springs, one customer shot another inside a Toys R Us. In previous years, there have been recorded fist fights and related altercations. When you offer $0.01 printers and $0.99 cell phones you are creating the condition which gets people in a heightened state, at a time of year when people are enticed to go to hundreds of stores at 5 AM. They are emotionally committed to getting that product they have they eye on, and Walmart spent tens of thousands of dollars creating that environment and didn’t adequately prepare for the situation they created. If it had happened on some random Saturday, no fine. In this case, Walmart is both the cause of the stampede, and failed to prepare for it. Wal Mart is Guilty.

  37. OSHA is taking the same heat that most other government regulatory agencies are taking: we have too many controls but why didn’t you prevent this horrible situation? (think MMS in the gulf, Securities and Exchange, banking, etc)

    No one wants the government involved until it affects them directly, then they can’t get there fast enough or do enough.

    I’m not sure that OSHA is properly involved in this case, but no matter what they do it’s going to be wrong.

  38. To Pamela Craig: Unfortunately, in our litigious society, people do not take responsibility for their own behavior.

    To Mary: I agree, the GDC is too vague and there’s too much latitude for it to be applied unevenly and unfairly, according to the whims of OSHA, not the law.

    This was a very unfortunate tragedy, but Wal-Mart has been punished by the courts and OSHA is overstepping its bounds on this one. By all means, protect employees — but as Dale said, if the work is forced overseas due to unwieldy costs of compliance, there will be no employees to protect. A reasonable balance is what is required.

  39. Safety Clint says:

    Wow…I’m actually reading these comments for the first time…I am AMAZED how many people agree with Dale and think OSHA is abusing its powers. What in the hell is more important for OSHA to do than to investigate cases where employees are killed in the course of their job? Here is some poor schmuck who is told to go handle the crowd because he is a “big guy”, not because he is trained in crowd control. And some of you ask, How could Wal-Mart have known the mindset of these people? Really? Are you that simple minded that you don’t think they spend tens of thousands of dollars planning that mindset? They work VERY hard to cultivate a mindset where people will choose going to Wal-Mart over going to K-Mart or Best Buy or Target. They advertise hundreds of products at a loss to get you in the door, at 5AM. And most of those people have a plan to hit Wal-Mart, then rush over to some other store to catch any other deals. It is MOB MENTALITY, and Wal-Mart probably understands that BETTER than anyone else when it comes to shopping. Their JOB is to get hundreds of thousands of people through their doors on the busiest shopping day of the year. They did that job remarkably well…but they didn’t plan for the flip side.

    OSHA is right on the money here. Wal-Mart will not wiggle off of this hook, and rightfully so. Its a sad day for all, but ultimately, the chances of this happening again are greatly reduced because now WalMart will probably train some managers and come up with guidelines for events like this.

    I am still in shock people agree with Dale. I am about 75% sure that you aren’t even real people with real opinions, just some random law-clerk(s) working for Wal-Marts lawyers who were sent to this website to put some anti-government spin on this case in case the OSHA Review board is reading this. Crazy. To accuse OSHA of Malfeasance because they are fighting for the rights of a worker who was killed in the course of showing up to work some day after Thanksgiving? My God…if I am taken out just doing my job, I hope OSHA comes in and lays down some law. Don’t let me die in vain…fine someone, and make a new rule to make sure it never happens again. Fine OSHA…please…what a bunch of buffoons.

  40. Just Another Safety Professional says:

    As a safety professional in the private sector, I can see both sides of the coin. Ask yourself this, do we want to go back to the workplace safety of the 60’s. This is a recognized issue! If it was not Wal-Mart would not have agreed to put safeguards in place for future instances. The GDC is a “catch-all” to ensure that corporations and entities that do not take the initiative to provide their employees a safe working environment, do have a standard to uphold. Any given day OSHA could walk into any Wal-Mart and issue $7000 in fines without blinking. This is an expensive object lesson to let big retail chains know that although they have been overlooked in the past, that direguard for employee safety will no longer be tolerated.

  41. sheralroh says:

    I think this tragedy could have happened at any major retailer on Black Friday, it just do happened at Walmart. First let me say that I have never been enticed to wake up at 3am to stand in line at 4am to shop. There is nothing I want to buy that so badly that I would do that. If ANY retailer wants to have these ridiculous specials, then they need to hand out bracelets and only allow a limited number of people into the store during the first 30 minutes or so; or come up with a more civilized way of controlling the shoppers. Next, I believe that anyone who was in that store shopping should be prosecuted (get their names from their debit or credit card purchases). The store did not trample this poor fellow, those idiot shoppers were. What a bunch of self centered morons. Walmart should not be let off the hook, but should not be held completely responsible either.

  42. Response to George K. The problem with George’s suggestion of fining every “foot” that touched the downed employee is that those shoppers in front are not the ones who pushed the crowd forward from the back. Those up front had nowhere to go. In an auto accident it is usually the driver of the car behind who is at fault and fined. Wal-Mart absolutely knew it was creating an atmosphere of greedy determined shoppers. They not only know it, they count on it. When you have a one day sale with limited numbers of ridiculously priced loss leading items, it is going to create a heightened state of excitement. The continuous build up in advertising, the overnight parking lot campouts are all calculated to make everyone want to be the first or one of the first shoppers in the door.

  43. George K. says:

    $7,000 fine…. 4725 lawyers hours, 1 deceased man…………… Ludicrous

  44. Safety Clint, you make a very good arguement – I am inclined to review my own thoughts on the matter. But still, it is the GDC that is the real issue. OSHA really does need better clarification. All the GDC is good for is so OSHA can say “Some one got hurt, or killed, and you as a company should have had a prevention plan, but you don’t so you owe us a million bucks. That’s my problem with OSHA’s GDC. If a steel delivery truck rams through the front offices of our facility and kills an employee, the GDC clause can be used to fine our company because we didn’t have a plan to prevent it.

  45. The 5(a)(1) is far too vaue; OSHA has to broad of a power; OSHA is not there for the employee (look how often Unions are ignored insofaras citations); enforcment officers are just that – enforcement. They do not know how to correct something, just that it needs fixin’. I agree with the fellow that says that OSHA needs to be fined at least 10X the amount for WASTING TAXPAYERS DOLLARS PURSUING SOMETHING SO DAMNED FOOLISH!

  46. Just another reason not to shop at Wa-Mart… Looks like they desire to avoid protecting their customers and also desire to avoid protecting employees.

    It’s a Public Relations mistake for Wal-Mart. I hope the rest of the country has crowd controls being implemented.

    Wal-Mart agreed to:

    adopt new crowd control techniques in all 92 of its New York State stores
    create a $400,000 fund for customers injured in the stampede, and
    donate $1.5 million to various community programs.

  47. George K. says:

    Roberta,, your right, the bottom line is one innocent man is dead. OSHA is looking to punish Wal-Mart. Expending so many resources that are not really available, they should stop wasting our money.. The local authorities should treat this as a murder, OSHA does not have any business looking to “FINE” Wal-mart.

  48. There are 2 basic issues here. First, anyone who has worked in a discount retail environment knows that sine the early 80’s that the retailers and manufactures have created the “surge” by under manufacturing and low ball pricing. I was almost trampled in the mid 80’s during a Care Bear and Cabage Patch kids freenzie. Every store in America has block buster pricing and limited quantities on Black Friday. So anyone who thinks Walmart could not have recognized the hazard should go back to the hole they crawled out of. Second, OSHA is being wimpy. The GDC is a cop out when they can’t or DON”t have a regulation. If they (OSHA) truly thought Walmart failed to regognize the hazard then should fined them thousands if not millions based on every store Walmart has. That hazard is recogniable and exist every Black Friday. And as far as holding the public accountable..tell litttle Johnny or Susie that Mom and Dad could find their toy.

  49. Jim Petrone says:

    Is it not true that the government passed the Fire and Panic Act of 1927, the forerunner of all the latest building codes existing today. If Wal-Mart built their building to “Code”, they have met all the requirements that OSHA, or any other government agency demands. Many of their stores are built beyond the present codes. I think OSHA is wasting their time, and our money, in pursuing this case. The Wal-mart attorneys have a pretty good case if they use the codes to their advantage.

  50. Crowd control is BASIC. If it had been a shopper that was trampled to death, their grieving familiy would be suing the pockets out of WalMart and people would all be sympathetic. All WalMart stores would have new crowd control procedures in place. OSHA Laws restict employees from suing their employer BECAUSE the employer is required to provide a safe workplace and no-fault medical insurance covering on-the-job-injuries. Why do employees not deserve the same level of concern and protection? It is reasonable for OSHA to pursue this, cite it under the General Duty Clause (GDC) and protect employees from similar situations in the future.

    The General Duty Clause (GDC) is the basis for all laws governing the employer -employee relationship. Employers must provide employees a workplace free from exposure to recognized hazards. All any of the specification standards do is clarify ways for the employer to implement the GDC. OSHA cannot forsee the hazards in all workplaces, but employers who know what they’re requiring employees to do can protect employees from hazards during work.

  51. Safety Clint says:

    Have the lunatics taken over the asylum? “OSHA does not have any business looking to FINE Wal-Mart”? Really? What are they supposed to do? Write hundreds and thousands of specific laws for all of the potential ways people could die or be killed at work? No, they respond to hazardous industries, worker complaints, and OSHA REPORTABLE events. Death of workers, three or more employees hospitalized from a single event, or dismemberment. This is the #1 thing they are supposed to do! Your arguments are paramount to the Police should not close down a bank to dust for fingerprints after a robbery because it would interfere with the banks right to free commerce, is bad for business since everyone will know they were robbed, and will send people overseas to do their banking. The US is the largest economy in the world with the most spending power and one of the largest populations of semi-wealthy people. Wal-Mart is the largest retailer in the land…I am infinitely sure Wal-Mart won’t be “taking their jobs overseas” because of all this “Government Regulation”. Holy cow.

    The GDC is there exactly for cases like this. When a hazard is not specifically addressed, it is up to the business owner to understand their business better than OSHA, and protect its workers. Bottom line. In this case, the crowd was getting unruly, so they chose their largest employee to go maintain the peace until they were ready to open the doors.

    Wayne – I understand your argument, but OSHA is fining Wal-Mart $7,000, not $70,000 or $700,000 or a million dollars. It’s a tiny amount. A man died needlessly, in the course of doing his low wage paying job. In this case, had Wal-Mart been GROSSLY Negligent, which they have not been accused of, the fine would be closer to $25,000. This is how OSHA develops laws. They are alerted to tragedy. They investigate it, and they do their best to make sure it never happens again. Not you Wayne, but it’s like I’m arguing with 600 village idiots! I get it…Government bad, Tea Party Good. We hate regulations! Don’t Tread on Me! Well settle down you freaks. Your Wal-Marts aren’t going anywhere and Big Obama Government ain’t turning us into a Socialist State…all OSHA is saying is “Wal-Mart, you are now on notice to be aware that this can happen again. Deal with it”.

    I don’t mind that Wal-Mart is fighting it, that’s their legal right. But it is DEFINITELY OSHA’s legal obligation to do their job, and address workplace deaths. What should they do in this case? Sweep it under the rug and cross their fingers hoping it never happens again? Or how about they ask Wal-Mart to do the responsible thing and be prepared. What a crazy thought! To train some workers that if you open the doors late people might get agitated, or that if the crowd gets out of control, maybe run for your life instead of standing there trying to take on a mob. ludicrous!

  52. sheralroh says:

    The bottom line is that someone died. Every retailer in the country participated in Black Friday; it wasn’t just Walmart. To me, it’s a sad testimonial to how some people are all about the material things and care nothing about other people, but I guess we don’t have to worry about others because Mr. Obama will take care of us all. What happened to our Christian values?

  53. Osha is doing the right thing. We cannot go backwards on safety. People die! Just look at all the people that died at work for no reason other than safety impacted profits every year. Luckily we have improved our laws over the past decades and fewer people die each year. There may be mistakes (depnding on your personal opinions) made by OSHA in some of there iterpretations of the GDC from time to time but if this errors in favor of safety so be it. It is better than the alternative. They need to protect the GDC at all costs. New technologies and hazards are being developed every day. To wait till someone is hurt or killed to start the process of implementing a new rule is crazy. The same people faulting OSHA for the WalMart decision would be all over them for lack of action on any future tragedy. I hate to mention the rants of some of the people on this blog but you cannot base safety on politics.

  54. Wayne, I think you’ve targeted the major issue for many of us. I just see the GDC as giving OSHA too much leeway to apply unwritten standards unfairly and unevenly. Wal-Mart is definitely at fault, and that was determined in court and there were consequences. $7,000 is a ridiculous fine for a ‘violation’ that resulted in an employee’s death — is that really all that man’s life was worth to OSHA? Either levy a real fine or go home — a tiny little tap on the wrist is an insult to the man’s family. That small fine is basically sweeping it under the rug — if it’s an egregious violation, treat it as such. And since Black Friday (and other huge shopping days) are a fact of life, perhaps OSHA needs to address the problem with some specific regulations.

  55. So, following this precedent, postal workers should be provided bullet proof vests because once upon a time an employee “went postal,” oh wait this has happened more than once – what gives?

    As an employer you cannot and should not be held accountable for figuring out what consumers are thinking, otherwise every store in the world should have bullet proof glass because some armed bandido might come in and rob the place.

    Wal Mart is fighting for a principal; the amount of the fine is irrelevant – I say good for them for having the stuff to stand up and fight.

  56. Just Another Safety Professional says:

    Safety Clint, I do not think anyone could have explained it better. OSHA’s number one priority is to protect the employee. When they do not get involved is when we have a problem. The GDC is there to protect employees from employers who do not care about the safety of their employees. The GDC is not a “cop out”, if OSHA wrote a standard for every foreseeable hazard it would take a lifetime to convey all of that information. Each employer must know what hazards they are subjecting their employees to. OSHA merely writes standards to encompass major hazards encountered all of the time.

  57. If OSHA expects, and can so easily hang it’s hat on “REASONABLE ANTICIPATION”, why did they not recognize the issue, as the governmental arm of safety in this country? Secondly, OSHA has, within its realm of responsiblity failed to provide clear requirements and guidance for the employer. In this case, they have failed miserably and hopefully will lose this case. I personnally believe that, although an employer can take steps in some cases to inform employees of hazards in the workplace, there are a few that cannot be eliminated. Take for instance workplace violence – the employer can do a lot of things, but there is no way to prevent occurance, we see many of those instances play out, it seems almost daily across America. How about the pilot that crashed his plane into a building full of workers??? There is air traffic over my head right now, should I reasonably antipate one of them falling out of the sky? Or a worker going berserk and taking a tire iron to another? Or an overzealous mob bum rushing the store and killing a person? Yes – controls can be implemented, but fining the retailer for not anticpating is incredibly ludicrous. I don’t expect OSHA to brush it under the rug, but knowing they have a void in their oversight which they are responsible for, write clear requirements the employee can follow. It is hogwash for them to have the GDC as a “catch all” for issues they (OSHA) should have “reasonably anticpated” happening in industry sectors they govern. If there would have been some form of regulation for crowd control, I am very positive Wal Mart would have followed them or the fine would not be being argued.

  58. Amen for a voice of reason.

  59. enchanted wizard of rhythm says:

    WALMART is definitely, absolutely, 100% responsible for that employee’s death.
    Every “black” Friday after Thanksgiving, retailers like Walmart are notorious for
    creating this mob frenzy. They hype up their sales event and market it and create
    this frenzy. Every year people crowd the store before the door opens. This is NOT
    the first time this is happened, and WALMART knows this – they just didn’t care.
    Were there ignorant people in the crowd? Of course! But Walmart lured them and created
    this situation. They show up every year. Walmart knows this. I suggest submitting every
    evening news program aired Friday evening after Thanksgiving for the past 10 years
    as ‘exhibit A’. I’m sure there is plenty of video footage to support this.

  60. John Smith says:

    Typical Osha
    Come in and beat the already injured employer lying on floor after the fact. Where the hell were they before the employee got injured? Everybody knows about big retailers on Black Fridays! Its plastered all over the news ahead of time. Why weren’t they warning Walmart before hand? Why has OSHA just turned into a reactionary fining administration under so called “general duty”?
    They continue to look more and more like an ambulance chasing legal firm intent on ringing out every cent possible through fines after the fact. Its not about deterrence any more, its about how can we set precedence to make fines bigger and easier.
    I hope they lose big time, its the only way they will ever get reigned in on this ridiculous BS!

  61. I do not shop Walmart but I can see some poor fellow just trying to do his job, open the door and then get trampled. OSHA has to investigate and make a stance as to what should have been done to avoid this tragedy. Fine walmart for not teaching employees how to handle a crowd. Make sure everyone understands why they have been fined so this doesn’t happen again. Walmart is fighting this also to make a point they don’t have to train employees to do everything they are only part time! They don’t want to plan ahead at all their stores when having such events or do they want to employ more people too control their events. They are all about making more money. we are safety people with smart minds and you must think of all the possible ways to be safe, Walmart didn’t.

  62. Wal-mart, as do all retailers with their MEGA-SALES, need to spend the $$ to prepair for crowd control for these EVENTS – which with some trained associates, mobile / portable safety barricades / rolls of hazard tape & some common sense (I know – not a given) WILL prevent another tragedy.

    At least Wal-mart, I’m pretty sure, will off-set the CC cost in about 15 minutes from the time the doors open.

    As far as OSHA goes – I am O.K. w/ them using (or abusing) the GDC – they always have and will continue. If that’s what it takes the get the attention of these GIANT retail companies to a least start thinking of people over profit (I know again – good luck w/ that !!) – so be it ….

  63. “The world’s largest retailer settled the case with the Nassau County district attorney. Wal-Mart agreed to:
    (1) adopt new crowd control techniques in all 92 of its New York State stores
    (2) create a $400,000 fund for customers injured in the stampede, and
    (3) donate $1.5 million to various community programs. ”

    So what is a power grab by the feds turns out to be a money grab by the state of NY so they can fund various slush funds.

    All in all, OSHA (like many other federal agencies) is on a major power grab. They, like many other federal agencies, are not elected and we (the people) have little or no recourse to try to fight them. Like the IRS… EPA… and others. They will use their attorneys to fight you even though you pay for their attorneys.

  64. Clint – well said. I agree!

  65. This is rediculous. We pay OSHA to regulate Safety in the workplace. They have been in existance for a half century and they do not have regulatory guidance for situations like this? How can they reasonably expect to enforce something when there is not clearly defined requirements of the workplace, by saying that it should be reasonably expected? If it was so reasonably expected that a crowd would place greed before civility, and with all of the pre advertisement and riling the crowds, why was OSHA not at the front door, or at least issuing public warnings? While I do not like anything about Wal – Mart, I still hope they win this case. OSHAs job is to protect workers, they need to get off their asses and start being proactive instead of punitive in their approach.

  66. Just Another Safety Professional says:

    So because there is not a specific standard in reguards to this instance, Wal-Mart can require it’s employees to stand in front of angry selfish mob with no safeguards in place? Using this same reasoning then they (Wal-Mart) can also fire their employee who refuses to stand there because they perceive a threat to their well-being. The GDC is in place in order to protect the employee. Standards are in place in order to protect the employee. When we were kids we knew what was right and what was wrong. Did we have a book of standards and regulations to tell us why and how we were expected to behave? Why is corporate America any different? They know what kind of frenzy is created when they have ridiculous sales. They know this because that is their intention. Just because there is not a standard outlining how to protect their employees during this situation does not mean that they do not have to protect their employees. The amount of the fine is irrelevent. It does not matter how much money is involved. This case will set a precedent as to how Wal-Mart and other giant retail chains will be held accountable for the safety of their employees from here on out.

  67. Why are they only requiring them to have crowd control regulations in New York? This can happen anywhere. WalMart as a whole should automatically apply this to all their stores in all states. It’s not like they don’t have the equity

  68. Well said, Jan (and my point prior) – Wal-Mart Attorney’s are fighting for their Corporate Mother Ship Cash Cow on the legality of the General Duty “Catch-All” Clause and the simple-minded thought that “WINNING” in New York State will cover their greedy “Across the Country” Butts !!! And anyone who wants to argue that a STRONG / RICH Wal-Mart is GOOD for our economy – needs their head examined . . OR should do PR work for BP . . .

    They have set the record straight, from day one about how they feel about their people – one little death (cost-wise in their minds) isn’t worth their time or money to actually focus on the root cause analysis – let alone the corporate wide solution to the Safety Hazard THEY create EVERY fourth Friday in November of EVERY year . . . . . .

  69. Just Another Safety Professional says:

    DMac, it is not OSHA’s job to stand at the front door and issue public warnings. The entire intent of OSHA is for “Occupational Safety and Health Administration”. It is the responsibility of the store to call local law enforcement or hire a private firm for crowd control.

    Why is it in our society that we try and blame our shortcommings on anyone and everyone, it is time to straighten up and take responsibility for our own actions. OSHA is there to protect the employee, and if they find an instance where the employer is not providing a workplace free of recognized hazards, then their duty is to correct the problem and fine said employer. OSHA has done more for the safety and health of America’s workforce than any other organization worldwide. That is the bottom line, keeping the American workforce SAFE. If some of the genius thinkers making entries on this blog knew the amount of lives that have been saved because of the standards and regulations put forth since OSHA’s inception they would most likely not be saying the things they are.

    A man lost his life while at work due to the negligence of his employer. The hazard was a regognized hazard and hence OSHA has issued a fine utilizing the GDC. In this instance the GDC is not VAGUE.

  70. Buck Lyn says:

    WalMart for President.

  71. SafetyMan says:

    While the OSHA regs are about a gazillion pages long, they cannot anticipate everything that can happen in a specific workplace. Hence, the General Duty Clause, which places responsibility upon the employer to recognize potential hazards, some of which would undoubtedly be unique to that work environment. As stated by many already, Wal-Mart knowingly promoted and created this buying frenzy. I would add that they have done this for years with a “buy here first” strategy which encourages and depends on shopper-mobs. (If memory serves me right, other employees at other retailers had previously been injured or killed in similar situations; it seems to happen somewhere every year.) Wal-Mart should have recognized the hazard and since OSHA doesn’t have a specific reg for such situations, they have the GDC at their disposal. Hey, I’m no fan of OHSA. But I believe Wal-Mart was negligent in this case and OSHA is right to pursue the case.

  72. Just Another Safety Professional, good rebuttal, and I agree with much of what you wrote. As I stated in my post, I really don’t like Wal-Mart for a lot of reasons, but that is not what this is about. These sells happen every year after Thanksgiving, year after year, etc. In my opinion, you can open Pandora’s door in this case using a simple “what if”. What if the employee had been shot because a customer, frustrated by them not having a sells item – does Wal-Mrt get penalized? What Happens if a customer goes out, gets in his car and drives through the front of the store killing several? Same type of unexpected outcome, their employee (s) is dead, situation could be “reasonably expected” just as much as a wild crowd. The point I am trying to make is that How much is Wal-Mart to blame, How much is Society and Greed to blame, How much is OSHA to blame for not developing a specific standard? I agree it is not OSHAs job to stand at the front door, but I do not like the fact they seem to come in after the fact, use a “hide behind” GDC as a catch all, and the blame slides off of their backs. This case happened last year – what guidance have they developed? What Standard have they developed? The answer would be NOTHING. If there was a standard for crowd control, a simple endeavor in my mind, Wal-Mart would not have a case, and would most likely have complied, as most companies do when there is a direct requirement – but there is no standard, just the GDC, which could cover any concivable issue. That is my point…

  73. SafetyMan says:

    DMac – I don’t think you can reasonably expect some shopper to shoot an employee or drive through the front of the store. Possible? Yes. But not to be reasonably expected. On the other hand, these crowds are in a frenzy every year and the shopper-mob mentality is present every year. Under these circumstances, I belive Wal-Mart should reasonably expect someone to get hurt, if not trampled to death. I agree with you that OSHA could do better at establishing guidelines or standards for such a thing, although I think it would be difficult. OSHA regulates the employer-employee relationship and customers are not employees. The standard would therefore have to be directed to employees and management who, under the standard, would probably have to be trained in crowd control. The store would have to install remote control locks so when the door is unlocked, no employee need be within 50 feet of it and can take proper shelter, which would also be defined.

  74. I don’t think anyone is saying Walmart shouldn’t pay for their sins. OSHA just shouldn’t be allowed to throw anything they don’t have a reg for under GDC. OSHA has regs to tell me how many sheets of toilet paper are safe to use, don’t tell me they can’t come up with crowd control regulations. If they spent half the time on that than they did on this $7000 fine, those regulations would be in place already. OSHA’s pruimary functions (aside rfrom making money) is to provide safge ways to conduct business. They can’t regulate every move and then have an escape clause in case they forget something. They shouldn’t forget, they’re OSHA for God’s sake

  75. SafetyMan, I don’t reasonably expect any of the items that are being discussed here to happen – even the trampling death, and if you can, then why the hell does OSHA hide behind the GDC? If it is so foreseen, as you say, why is there no direct guidance or requirements for it? Why do they have to put it in their catch all? Put it this way, OSHA has spent many dollars trying to defeat Wal-Mart. Could they spend less time and money by actually putting together some regulatory requirements that ALL stores can follow? I guarantee that Wal-Mart is implementing some form of system, even if it may be to cover their rear ends, but what has OSHA done from there end to provide themselves a reference to control the problem – NOTHING. Can this happen again this next Christmas season? If you answer NO, then you haven’t been to Best Buy, Kohls, or any other retail outlet the day after Thanksgiving…it is treacherous and I see no crowd control anywhere….OSHA needs to put some regulatory requirements in before they take enforcement actions….The GDC just don’t cut it…there are too many intangiables out there that not even the most seasoned pro would expect to occur…

  76. Safety Clint says:

    Gary, you couldn’t be more wrong. The General Duty Clause is EXACTLY for cases when their isn’t a specific regulation. For example, there was a time when OSHA, along with the AIHA/ACGIH and others created exposure limits/guidelines to workers exposed to chemicals. However, there are literally thousands of more chemicals and chemical combinations used in the workplace than there was just a few years ago. OSHA cannot keep up. So, they are requiring the employer, the ones who see the need to use these untested chemicals, to develop safe standards and exposure limits/guidelines, etc. If they fail to protect their workers, and people have mutant babies or develop head cancer, then guess what OSHA will do? Yep, cite the employer for failing to protect the worker under the general duty clause. Once again your arguments are idiotic. Every location has unique hazards. Maybe in your workplace people have to walk down a hill to get to a certain area of the facility to do a job. And maybe in certain times of the year, that hill is extra slippery due to weather, or watering, or whatever. And maybe employees have mentioned it in the safety meeting and management didn’t do anything about it. And maybe someone fell on their ass and dislocated their hip. I don’t think OSHA has a specific regulation for west facing hills during the months of November – February telling the idiot managers how to make their place safer. No, if you can’t figure out how to comply with OSHA’s mandate to protect workers, hire a fricking safety consultant or a safety manager! That’s what we do! You know how to make widgets and manage people and keep the facility running and turn a profit. We know how to keep your ass out of regulatory trouble.

    Do me a favor, ask your workers comp insurance provider how much you’ll likely save by hiring a safety professional. If they told you you’ll save $3-5 dollars for every dollar you spend (on average) you won’t believe them, but ask BP if they would have rather spent a few millions on preventative measures and taken safety a little more seriously on that rig, or if they are content spending close to 20 billion fixing the mess and attending the funeral of however many workers.

    ALSO, OSHA is not a “money making” entity. If they fine your stupid company $7,000, its not like the head of OSHA gets a bigger bonus. They money is put back into workplace safety, i.e. education, outreach, enforcement, and guess what, paying for the lawyers who are fighting Wal-Marts attempts to squash this fine. The article above tells the story why Wal-Mart is fighting it…not because they don’t feel they are culpable, but because if it happens again the hammer really comes down! They are trying to get 1 free pass, that’s it! If they didn’t think they were at least in part responsible they wouldn’t have given money and made concessions.

    I guess it comes down to the fact that some of you think OSHA is acting unreasonably. That’s scary to you because you’re afraid your company will be on the hook for something you can’t anticipate. Sure, that’s scary. I’d be scared too if I didn’t know dick about safety or OSHA and thought they just wanted to shut me down so they can look good and make money. Yikes! Is George Orwell the head of OSHA? For the record, I’ve appealed OSHA violations. They are reasonable people who yes, like to start with a slap on the wrist, ala a $7,000 for a loss of life in this case.

    And regarding bullet-proof armor for mailmen(and women)…yes, if you don’t know, there is a new concept called Workplace Violence, and most companies now incorporate Workplace Violence Training into their training regiment. If you don’t, and something should go wrong, your slap on the wrist will most likely be a slap across the side of your head. Again, hire a safety professional.

    There are HUNDREDS of qualified safety consultants out there. Hire one, even if its just to give you a 10,000 ft. view of your operation. And guess what else. OSHA offers free, no penalty (no matter how bad it is) consultations. Why? Because they want to actually fulfill their mission, to protect the workers. The better and safer your operation runs, the more likely you are to be a successful company, and guess what, the American dream lives on. Yay Capitalism! Just don’t be irresponsible, that’s all.

    I suppose OSHA and the Mine Safety and Health Administration should not be able to write a citation for the Upper Big Branch Mine disaster unless they have a specific regulation stating that the ventilation fan blade must turn in the proper direction. Get real.

  77. Safety Clint, I respect your opinion, and it must be that the opposite point is not being made so that it is understood. In the case that you cited where OSHA could not write exposure limits for thousands of chemicals, although entirely on target, is not comparable to writing guidelines for crowd control which could be done very easily. In fact, if you read back through these posts many have cited things that could very well be part of a good crowd control plan.

    Secondly, I don’t think that OSHA or Wal-Mart are looking at the 7K fine as something that will make or break either entity – it is the principle both are fighting to protect. Let’s face it – if OSHA had some semblance of a guideline for crowd control, and Wal-Mart’s program was not compliant -Wal-Mart loses hands down and there is no need to fight. Wal-Mart has Safety Profressionals, and they would have made sure to comply, regardless of their motivation – they would have had their documentation in order. Whether their ee’s had proper training or not, they would have most likely covered their rear end, and if not, there would be no argument over a 7K fine. Instead we are commenting on a case that still, as far as I can tell, has no standard or guidance for the employer. This taken into context is the principle. If OSHAs job is simply to enforce regulatory requirements, then they damn well should have the regulatory requirement (where practical) to enforce and not use the GDC as a punitve catch all.

    Now, if your are talking about MSHA, these are the same guys that cited Big Branch Mine 39 times for multiple, repeat violations, without even thinking about shutting the operation down. Just think, and it is within their power and scope of responsibility, if they had shut the operation down 1 time, we may not have even experienced the loss of life. You see, MSHA can write all of the citations they want, but if they have no teeth to change what is actually occurring – they are not even worth the paper they are written, and they have some hand in what happens. I have been part of that culture from two sides (coal mining), and I know that owners and employees alike, in most cases, understand one thing – making production!. The equation is simple – shut them down, they don’t make money, they comply. Simple as that. In the case of Big Branch, MSHA, the owners, and the miners all have a hand in what happened….

  78. The people who physically trampled the guy probably had no way to avoid it. Having been at the front of a crowd that stormed a theater, I know from experience that you are suddenly and irresistably pushed forward for a distance. One fellow near me when we got seated said that his feet left the floor in the lobby and never touched again until he got into the theater. And the people in the back doing the pushing have no idea what they are causing. It is truly mob violence…no one person in the crowd can possibly be responsible. Anyone who has experienced this could – from a vantage point – probably read the crowd and anticipate “the surge”.

  79. NancyNew says:

    For those who think OSHA should have put a “Crowd Control” Standard in place…

    Something to consider here is that obstruction to PREVENT OSHA from being able to get through new standards has been the name of the game for decades now. Take a look at David Michael’s book “Doubt is their Product.” There’s a whole lot of corporate time, effort, energy and money going into making sure revision of old standards and issuance of new standards can’t make it through the process. In the meantime, workers–and taxpayers–pay the price.

  80. Thank you NancyNew, and I will obtain that book and read it, as I am very interested in all things Safety. If that is the case, it is hard to get a standard through the process – it is a government problem that should be solved, but not borne on the shoulders of employers. On a much smaller scale, and in the world I live in daily (a corporate entity) it is sometimes very hard for us to push through corporate policies as well, and my thoughts are that large retail chain policy making is no different. HOWEVER, because OSHA cannot establish standards does not negate their obligation to the safety of the people they serve to provide a sound platform for compliance. It would be comparable to driving a car without side airbags, receiving a ticket and fine, but there has been no law established, no publication or requirement to have them, but somebody is likely to be killed and you, as an operator of the vehicle should have known it and thus bundling the whole affair under a Generic Category, call it General Safety Clause or whatever. Now bear in mind, there are times when I believe the GDC should be used, but this is not one of them.

  81. NancyNew says:

    Also consider what happened to all sorts of government oversight organizations under the last administration–safety, environment, food, financial and more–funding cut to the bone, thus cutting the possibility of responsible coverage impossible, and in many cases, organization leadership straight from the related industry–with little interest in real oversight. There’s a whole lot of backlog to get through, and cleanup to perform. It takes time, it takes support, and it takes $$$.

    David Michaels has good solid suggestions on what to do to fix the system in “Doubt is their Product,” too.

  82. Safetydawg says:

    For both Wal Mart and OSHA this case has nothing to do about safety. That is evidenced by the small fine.

    From the OSHA perspective, this all about political points and sticking it to the big boy. The DOL has it in for them over anti union positions.

    From Wal Mart’s perspective, if the court rules against them, then the legal liability for any future claim from an injured or killed customer will go up exponentially.

    Now, could both of those parties come up with a settlement to establish best safety practices for controlling these shopping crowds? Sure they could. Would that result in a greater likelihood of this not happening again? Sure it would.

  83. Safetydawg – well stated, and exactly on point.

  84. shiloh2000 says:

    This is entirely Wal-Mart’s fault and they should be held responsible. They created a situation where a mob of shoppers — that clearly couldn’t be controled by employees — was allowed to storm through the door in order to get a limited amount of goods. this is a situtaion that was dangerous to employees, and could/shuld have been forseen. The comment shere to dissolve OSHA and get an agency that helps companies is is totally STUPID. OSHA provides an enormous amount of safety information to comaines — but companies are interested in their own bottom line — NOT the safety of employees. It is a risk trade-off they constantly make: will it cost less to fix the situation, or pay the fines. If you want to save lives, give OSHA real fangs.

  85. Give me a break. How many Christmas’ prior did WalMart and others like it hold doorbusting sales? Instead of OSHA fining these guys, they should be held accountable to draft a requirement for such “easy forseeable” hazards. Instead, it is easy to come in after the fact, and hold somebody responsible for a rule that is not written or required, and decide to fine them based on a hide behind General Duty Clause. Look, I have family who particpate in these doorbusters, would I allow that if it was so easy and obvious? Has your family? Again – it is forseeable that a gunman will walk into a business today and kill somebody, happens all the time, is the employer responsible? My answer is NO. Will the General Duty Clause cover that too? Before it is said, they are comparible – one comes in the form of a group of over agitated shoppers, and another comes from an over agitated person – the only difference is numbers….


  87. Tom Viar says:

    OSHA and Wal Mart both need to put asside the “who’s at fault” game and band together with other retailers to devise a workable solution to the problem.

  88. Agree with Tom. That is what it will take. Probably to simple a solution for our government to wrap its hands around…


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