OSHA Cites Company That Failed to Act on Safety Violations 17:34, February 15, 2017

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OSHA Cites Company That Failed to Act on Safety Violations

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A truck-tank washing facility was fined by the Occupational Safety and Health Administration (OSHA) for safety violations after a supervisor was hurt by chemical fumes. The facility claimed a good-faith defense because it had a safety policy in place, but the Court denied the defense because the facility had failed to take action in the past when its safety rules were violated.

Dana Container, Inc. operates a truck-tank washing facility in Illinois to clean long metallic cylinders that are used to transport material such as ink and latex. After delivery, truckers bring their tanks to be cleaned by Dana so that the tanks can be used to haul different material without contamination.

Before washing a tank, employees drain any residual product from it through a mechanical cleaning process that usually is enough to clean the tank thoroughly. But sometimes (about 10 times a month at this facility) employees have to enter a tank and manually clean out the remaining sludge or residue. Because the tank space is confined and may contain hazardous chemicals, OSHA regulations require companies to enforce certain safety precautions when employees enter these permit‐required confined spaces (PRCSs).

Dana’s safety procedure required employees to get an entry permit from a supervisor, hook themselves  to a retrieval device that could pull them out of the tank if they became incapacitated, test the tank air for atmospheric hazards, wear a respirator, and conduct continuous atmospheric testing while in the tank. A fellow employee was required to be on standby outside the tank in order to assist in an emergency. OSHA regulations and Dana’s safety rules prohibited employees from entering a dirty tank before it was mechanically cleaned.

A Dana supervisor, Bobby Fox, disregarded Dana’s safety rules by entering a dirty tank before he had mechanically cleaned it. He failed to get an entry permit and did not hook himself to the retrieval device. A fellow employee found Fox unconscious in a pool of chemical sludge, and he was hospitalized. OSHA cited Dana for willful and serious safety violations. At the time of this incident, OSHA’s fines for willful and serious violations were $70,000 and $7,000, respectively, per violation.

Dana Knew About the Supervisor’s Misconduct

In order to establish that a violation was “serious,” OSHA must prove that an employer knew about the problem. Under OSHA Commission precedent, OSHA doesn’t need to prove that an employer’s safety program is inadequate or defective if it shows that a supervisory employee had actual or constructive knowledge of the violation. When that happens, the supervisor’s knowledge can be imputed to the employer. In this case, because Fox was a supervisor and had actual knowledge of his own misconduct, OSHA imputed his knowledge to Dana.  

Dana’s Safety Program Was Inadequate

OSHA had determined that Dana’s safety program was inadequate. Nearly all of the tank entry permits at the facility contained errors or omissions; some even showed that employees had entered tanks for over an hour longer than the maximum duration of 20 minutes. Whether these errors and omissions reflected actual violations of entry procedures, or reflected only recording problems, there was no evidence that Dana followed up on the deficiencies. According to the Court:

the uncorrected permit violations exhibited a pattern of disregard for the rules at Dana. Even in the face of a robust written program, lax disregard of the rules can send a message to employees that a company does not make safety a priority. In such an environment, conduct such as Fox’s is reasonably foreseeable.  

Good-Faith Defense

Dana conceded that Fox’s behavior was a willful violation, subject to the higher penalty. But it argued that Fox’s willfulness should not be imputed to Dana, citing a case holding that a supervisor’s knowledge should not be imputed to an employer who made a good-faith effort to comply with safety standards. But the Court found that although Dana had work rules that were communicated to its employees and had submitted evidence of three instances of disciplinary action, the facility manager had never disciplined an employee for improperly completing permits or for the violations apparent on the face of the permits. Because Dana had failed to take action when violations of safety rules were plain, it could not prove that it had made a good-faith effort to comply.

We’ve mentioned before that it’s not enough for an employer to have a code in place. Doing what’s minimally required won’t work; employers need to follow through. Dana’s safety policy was designed to protect employees in PRCSs. But by not enforcing its safety policy more strictly, Dana created a culture where employees failed to take safety seriously.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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