This employer says it couldn’t have known that an employee would do something unsafe which resulted in the loss of two fingers. Did a court see things the company’s way?
Jason Thibault worked as a pipefitter for Thomas G. Gallagher Inc. in Massachusetts. The company makes prefabricated piping systems for installation in major construction projects.
On Aug. 1, 2014, a pipe assembly weighing about 5,000 pounds had to be hoisted overhead.
During the hoist, Thibault placed his right hand on the pipe assembly, which was teetering, to steady it. A weld suddenly broke, and part of the pipe assembly smashed Thibault’s hand, resulting in serious injuries, including the loss of his index and middle fingers above the knuckles.
OSHA found the pipe assembly had been rigged improperly. The safety agency issued two serious citations and a total of $11,250 in fines.
Gallagher appealed. An administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC) upheld the violations, but did reduce the fines to a total of $3,500. The full Commission let the decision stand, and Gallagher appealed to the U.S. First Circuit Court.
The company’s challenge to the violations: whether it had actual or constructive knowledge of the violation of the safety standard, which is required to uphold the citation.
As is often the case, the ALJ had found Gallagher had imputed knowledge of the violation because its shop foreman, Mark DiCristoforo, knew about it.
The ALJ found DiCristoforo had failed to adequately instruct workers that the pipe assemblies be rigged only under his direct supervision.
DiCristoforo had testified that he intended to gather “the right guys” to rig and load the large pipe assembly, but there was no evidence that he told any of the workers he intended to form the team on the day Thibault was injured.
The foreman anticipated the job could be hazardous even for properly trained pipefitters, and that’s why he required that he be present during a hoist.
“DiCristoforo was therefore obliged to exercise reasonable diligence to address that danger by taking steps to ensure that such riggings would not occur without his direct supervision and not to rely simply on the training that his personnel had received to ensure that riggings would not be done in such a way as to cause a violation of the safety standard when a load was lifted,” the appeals court found.
But that didn’t happen in Thibault’s case.
The company also argued that because of the short duration of the violation by employees, and the foreman’s near constant presence on the shop floor, as well as a clean safety record, Gallagher couldn’t have known the employees would violate the rule. The court rejected that reasoning, too.
For those reasons, the appeals court let the Commission’s decision stand. The OSHA violations and fines against Gallagher stand.
(Thomas G. Gallagher v. Secretary of Labor, U.S. Circuit Cr. 1, No. 16-2268, 12/4/17)