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Standard Operating Procedures Are Key To Safety

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Employers bear the burden of proving they are not responsible when their employees violate Occupational Safetyand Health Administration (OSHA) standards. Employers are required to establish work rules and procedures to prevent violations, communicate the rules effectively to their employees, take steps to discover violations, and enforce the rules when violations are discovered. These requirements enforced by the Occupational Safety Health Review Commission (OSHRC) are crucial to protect both the liability of employers as well as the safety of their employees.

Background

Last year, TNT Crane & Rigging, Inc. was hired to lift new air conditioning units and remove old units to the roof of a Wal-Mart in Corpus Christi, Texas. The mobile crane setup by the company tipped over injuring the operator. After inspection from Safety and Health Officers, a Citation and Notification of Penalty were issued, alleging a serious violation of the Occupational Safety Act, along with a proposed penalty of $12,675.00.

Establishing a Violation of OSHA Standards

In order to establish violation of an OSHA standard pursuant to Section 5(a)(2), the Occupational Safety Health Review Commission under the Secretary of Labor is required to establish the following: (1) the standard applies; (2) the terms of the standard were violated; (3) employees were exposed to the hazard covered by the standard; (4) and the employer had actual or constructive knowledge of the violation. The OSHCR has the burden of establishing each element of the violation by a preponderance of the evidence. This burden is satisfied by not freeing the mind wholly from all reasonable doubt, but that the evidence be enough to incline a fair and impartial mind to one side of the issue rather than the other.

Though TNT Crane & Rigging, Inc. attempted to argue the OSHA standard was not applicable, the OSHCR found the elements for the violation of the OSHA standard were satisfied. The OSHA standard applies to power-operated equipment, such as the mobile crane that was used in the accident. A dispute over whether the standard was violated called into question what constitutes a violation of the standard. The Commission argued the failure to use “supporting materials” for adequate support and degree of level of the equipment violated the ground conditions standard because the manufacturer’s requirements for adequate support were not met. TNT Crane & Rigging, Inc. argued the standard can only be violated if the crane cannot be operated because of the ground conditions and crane’s supporting materials, as recommended by the crane manufacturer. The Court disagreed. It found the standard required both the set-up operations of the crane and the conditions of the ground. TNT Crane & Rigging, Inc. argued the Commission could not prove the existence of a violation when it failed to prove the existence of a hazard. The Court again found this to be incorrect. Failure to comply with conditions set forth in the standard establishes the existence of a hazard. Evidence that a hazard existed is obvious by the fact that a crane tipped over. The operator was hurt, and many others could have potentially been hurt in such an incident. According to the Commission, companies like TNT Crane & Rigging, Inc. have knowledge of violations through its “crane operator and competent person.” An employee’s job title is not controlling when determining whether that person has authority over other crew members, is able to hire or fire, or has disciplinary authority over other employees.

Supervisor’s Knowledge of Violation Not Always Imputable

The OCHCR held that a supervisor’s knowledge of his own malfeasance is not imputable to the employer so long as the supervisor’s conduct in violation of the policy is unforeseeable. This can be shown in circumstances where the employer provides the proper safety policy, training, and discipline to prevent such violations. The Commission held the burden to establish the supervisor’s conduct was foreseeable and did so in this case. The Court held that the Standard Operating Procedures used by TNT Crane & Rigging, Inc. were contradictory and insufficiently descriptive, making the supervisor’s actions foreseeable. There was also not any documentation of audits/inspections leading to the Court’s finding for a lack of oversight and subsequent discipline. This documentation is necessary so employers can prove they have good health and safety practices.

Assessing Penalties

The OSHRC determines penalties for affirmed violations based on the size of employer’s business, gravity of violation, good faith of employer, and employer’s prior history of violations. While all these different criteria are important, gravity of the violation given greatest consideration. TNT Crane & Rigging, Inc. is an employer of over a thousand employees and has received serious citations for violations from past inspections. The incident also resulted in a serious injury to one of its employees. These different factors altogether contributed to the Court’s penalty to TNT Crane & Rigging, Inc. of the full amount initially proposed.

Lessons Learned

Companies that deal with heavy and dangerous equipment are prone to an increased liability. Improper equipment, faulty equipment, lack of proper training, and even miscommunication between employees can result in death or bodily harm of an employee or bystander. No company wants their employees to be hurt no matter who is at fault. It disrupts productivity, makes companies susceptible to lawsuits, and most importantly, it impacts lives.

For companies to protect itself and its employees, it is crucial they not only create, but ensure that standard operating procedures are followed. This means that everyone is properly trained and provide for inspections to catch any possible violations or opportunities for harm. If an accident occurs, it is best to work with OSHA in good faith and make the necessary changes to prevent such accidents from reoccurring. The Occupational Safety and Health Review Commission should be seen not as an entity that punishes with hefty fines, but as a partner to prevent liability and harm to one’s workforce.

If you have further questions regarding health and safety in the workplace, contact Whitcomb, Selinsky, PC at (303) 543-1958.

About the AuthorRaymundo Ribota

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