The overhead flood lights at a UPS facility’s entrance gate weren’t working. It was before sunrise, and a worker who had to open the gate for incoming trucks was run over by one and killed. Will OSHA violations against the company for lack of proper lighting and employee training stick?
On Sept. 15, 2010, a semi-trailer truck entering a UPS airport facility in Iowa ran over UPS employee Daniel Raber who was holding the gate open. Raber died from his injuries. A flood light above the guard shack next to the gate wasn’t working when Raber was struck.
Iowa OSHA investigated and issued two serious citations to UPS under the General Duty Clause (GDC): one for poor lighting and one for inadequate employee training on gate procedures. Iowa OSHA assessed a fine of $5,000 for each violation for a total of $10,000.
UPS appealed to the Iowa Employment Appeal Board (EAB).
To prove UPS violated the GDC, Iowa OSHA had to show four things:
- A condition or activity in the workplace presented a hazard to employees
- Either UPS or its industry recognized the hazard
- The hazard was likely to cause death or serious physical harm, and
- A feasible means existed to eliminate or materially reduce the hazard.
UPS claimed Iowa OSHA failed to prove the second and fourth elements: There wasn’t a recognized hazard and no feasible means existed to eliminate the hazard.
Initially, an administrative law judge (ALJ) agreed with UPS and reversed the citations and fines. Iowa OSHA appealed to the full EAB which upheld the citations and fines. UPS appealed to a state court which also upheld the violations. Recently, the Court of Appeals of Iowa handed down a decision on another appeal by UPS.
UPS used the same argument with the appeals court as it did with the ALJ: that the hazards weren’t recognized and there was no feasible way to abate them.
A hazard is “recognized” when the potential danger of a condition or activity is either actually known to the employer or generally known in the industry.
Taking precautions can be a sign of hazard recognition.
An Iowa OSHA investigator noted workers near the UPS gate were required to wear reflective vests. The agency said that showed UPS recognized the hazard.
The appeals court agreed. “UPS took measures to keep its workers visible to incoming trucks; those measures reveal the employer’s recognition of the hazard posted by poor lighting,” the court wrote.
Regarding abatement, UPS argued it took steps to eliminate or reduce the hazard of an employee being struck by a truck through its yard control procedures and use of reflective vests. UPS found fault with previous rulings’ failure to offer testimony from experts familiar with the industry that lighting would have reduced or eliminated the hazard.
The appeals court agreed there was no need for expert testimony. The EAB could infer from the evidence that holding a gate open for semi-trucks in the darkness was dangerous and that fixing the flood light would make the job safer.
On the lack of safety training, the court found that UPS employees dealt with trucks entering the gate in several ways, including holding the gate open. Another method that was used: Bungee cords could hold the gate open.
Iowa OSHA found the bungee cord abatement method was logical because it would have removed workers from the path of entering trucks.
The appeals court agreed and also upheld the second citation.
So the fines against UPS stand, as does the $10,000 fine.
The take-home for employers: Safety equipment, which includes things as simple as lighting and bungee cords, will abate hazards only if they’re always used. Broken equipment needs to be fixed or replaced. And safety training has to emphasize that procedures – such as using a bungee cord to keep a gate open – always have to be followed.
OSHA may not have regulations on gate lighting or holding gates open with bungee cords, but it can use the GDC if a recognized hazard could have been easily abated.
What do you think about this case? Let us know in the comments.
(United Parcel Service v. Employment Appeal Board, Court of Appeals of Iowa, No. 13-1506, 10/15/14)