A federal court says because a company made some effort to comply with an OSHA standard, safety violations weren’t willful. That will reduce the OSHA fines, which were originally almost $7.5 million, by at least 90%.
In October 1993 (yes this case goes back that far — we’ll get to that shortly), a Dayton Tire employee in Oklahoma City died from injuries he suffered when a machine activated unexpectedly.
OSHA investigated and issued 107 willful violations relating to the lockout/tagout (LO/TO) standard. Of the total, 98 were for failing to properly train individual Dayton employees.
So that was $70,000 times 107 violations, for a total fine of $7.49 million.
You won’t be surprised to read that Dayton, a subsidiary of Bridgestone Tires, appealed.
In 1997, an administrative law judge of the Occupational Safety and Health Review Commission (OSHRC) handed down a decision. OSHA and the company agreed to throw out a small number of the violations, but the ALJ upheld the rest. However, the judge found that only 37 of the remaining violations were willful, and the rest were reclassified as serious. The fine was reassessed at $518,000, because the maximum for a serious fine is $7,000.
Both Dayton and OSHA petitioned for a review before the OSHRC. The commission agreed to hear the case, but didn’t rule until 2010. Why? Because of the complicated nature of the case and occasional vacancies on the commission, the OSHRC couldn’t come to a majority decision.
The OSHRC affirmed all but one of the violations and found all of them willful. The penalty was reset again, this time at $1.975 million.
Dayton appealed to the U.S. District Court in Washington, DC. The court just issued its ruling, the latest action in the case.
Did OSHRC act in a timely manner?
Dayton had two lines of appeal. The first came down to this: Come on, 13 years to decide this case? The company cited the Administrative Procedure Act that obligates an agency “to conclude a matter presented to it … within a reasonable time.”
The appeals court agreed that the OSHRC took too long to issue a decision. The court called it a case of dawdling and said it was regrettable.
But the court said a delay alone wasn’t enough to throw out the case. The delay must also lead to significant negative consequences. In this case, the consequences of the delay weren’t significant enough.
The second line of appeal had to do with whether the violations were willful in nature.
Since the Occupational Safety and Health Act itself doesn’t contain a definition of a willful violation, the court has defined the term this way: “A willful violation is an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements.” The court has also said a “good faith, reasonable belief by an employer that its conduct conformed to the law negates a finding of willfulness.”
The OSHRC found that one of Dayton’s safety managers either knew the company was non-compliant or was unwilling to investigate its lockout/tagout policy for fear of uncovering its non-compliance. The commission said the safety manager was plainly indifferent to the OSHA requirements.
However, the appeals court wrote in its decision, “It takes a lot to be plainly indifferent.”
OSHA cited several situations to make its case that the fines should be willful. Example: After the death of the employee, Dayton managers investigated and determined that LO/TO wasn’t relevant, but they decided to reexamine their LO/TO procedures anyway. OSHA said this displayed plain indifference.
But the court disagreed. It said the safety manager’s review may not have been thorough enough, but that didn’t show plain indifference.
The court said the OSHRC dismissed “the possibility of good faith,” and that “a difference in interpretation — even a persistent one — is not synonymous with willfulness … [the safety manager] made some effort to ensure Dayton’s LOTO compliance, and under these circumstances, some effort is enough to save Dayton from a willfulness determination.”
The court affirmed the violations against Dayton but not their willful category. The fine is now likely to be at least 90% lower than the original amount because the violations will most likely be reclassified as serious, which have a $7,000 maximum compared to $70,000 for willful fines.
The case will go back to the OSHRC for recalculation of the fine. In a parting shot about how long it took this case to get to this point, the court wrote, “We trust the Commission will act before the decade is out.”
What do you think constitutes good faith efforts toward workplace safety? Did the appeals court get it right, or was OSHRC’s interpretation on the mark? Let us know what you think in the comments below.
(Dayton Tire v. Secretary of Labor, U.S. Dist. Crt., District of Columbia, No. 10-1362, 3/6/12)
