By Gary Auman, Legal Counsel for MRCA /
In December 19, 2011, the Tenth Circuit Court of Appeals issued its decision in Compass Environmental, Inc., v. Occupational Safety and Health Review Commission (Case No. 10-9541). This significant decision demonstrates the importance that the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor places on effective training. It also demonstrates the role that lack of training plays in employee accidents and the reason that OSHA safety inspections focus on training.
In this decision, the Tenth Circuit Court of Appeals (which hears appeals from lower federal courts in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah addressed the need for effective training of employees. OSHA took the position that, although the employee in this case was trained, he was not trained in all aspects of his job, and in the job safety analysis (JSA) that was completed to identify all potential hazards of his job. The Tenth Circuit has significantly changed the test used by OSHA to determine whether an employer adequately trained employees concerning hazards to which they had potential exposure.
The training in this case involved hazard-recognition training, which is required under 29 C.F.R. 1926.21(b)(2). Since 1994, OSHA has applied a four-part test set forth in Secretary v. Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (1994). Under the four-part test, to establish a violation of an occupational safety or health standard, the Secretary of Labor had to prove (1) the applicability of the cited standard; (2) the employer’s noncompliance with the standard’s terms; (3) the fact that an employee had access or exposure to the violative conditions; and (4) the employer’s actual or constructive knowledge of the violation. Actual or constructive knowledge has been defined as existing when an employer knew or “with the exercise of reasonable diligence could have known” of the violative conditions.
In the Compass case, the Tenth Circuit Court of Appeals affirmed a decision by the Occupational Safety and Health Review Commission (OSHRC) and eliminated the four-part test used in these types of cases. The Court affirmed the adoption of a “prudent employer” test. In other words, OSHRC concluded that in the facts of the case before it, a reasonably prudent employer would have anticipated the employee’s exposure to the hazard and provided him with training addressing the hazard. In the discussion in the body of its decision, the Tenth Circuit stated that the generic test set out in Secretary v. Atlantic Battery Co., supra., while appropriate for many types of OSHA violations, is ill fitted to determine whether the training standard requirements found in 29 C.F.R. 1926.21(b)(2) had been violated. The court stated that “an employer’s obligation to train is accordingly “dependent upon the specific conditions [at the work site], whether those conditions create a hazard, and whether the employer or its industry has recognized the hazards.” Readers of my earlier articles on safety that have appeared in Frame Building News will recognize that the standards set out by the Tenth Circuit in its decision mirror very closely the general duty clause found in Section 5(a)(1) of the Occupational Safety and Health Act of 1970. The general duty clause requires that an employer provide a place of employment free of recognized hazards that are causing or likely to cause death or serious physical harm. The recognized hazard in the general duty clause is defined as a hazard recognized by the employer or its industry.
In the Compass case, it appears that the company was constructing an underground slurry wall at a surface mine in Colorado and using a mobile excavator with a 75-foot boom to dig a trench for this wall. The excavator had a two-person crew, which consisted of the excavator operator and a trench hand. The responsibility of the trench hand was to check the trench depth, grease the excavator, and watch for problems with the excavator that the operator could not see. In fulfilling his responsibilities of greasing the excavator, the trench hand held a grease line, a rubber and metal hose with a metal nozzle for dispensing grease. The hose was connected to the excavator. He greased the excavator after it completed each cut, and as the excavator moved, he moved along with the excavator, holding on to this grease line.
It was further reported that during the first week of the project, Compass prepared a JSA and instructed employees on the hazards identified within the JSA. The JSA specific to the excavator operator and trench hand identified several hazards, one of which was a hazard posed by energized power lines that crossed over one end of the construction site.
According to the JSA, the excavator operator and trench hand were to be instructed to maintain a 20-foot clearance between the excavator and the overhead lines. Although the excavator operator began work on the first day of the project, the trench hand did not begin working on the project until the week after the JSA was completed and training had been provided to all employees on the job site. The trench hand was given individual training, but the training did not include instructions about the overhead power lines.
It appears that Compass had identified the potential hazard with the overhead power line and had communicated to its customer that, when it approached the power line in the middle of March, the line would have to be de-energized and removed so the company could move its equipment into the area. It appears that the excavator was still 200 feet away from the power line on March 18, 2006. Another salient fact is that at the end of each work day, the operator moved the excavator about 20 or 30 feet away from the trench to more stable ground and then waited for a portable 300-gallon fuel tank to be brought to the excavator so it could be refueled. No policy required this performance. On March 18, for some reason, the excavator operator decided not to follow his prior procedure and wait for the fuel tank to be delivered to the excavator, but instead moved the excavator to the fuel tank location under the overhead power lines. As the trench hand walked beside the excavator with the excavator’s grease line in his hand, the boom was extended so the trench hand could reach it with the grease gun. As the excavator came near the fuel tank, the boom came close enough to the power line for the current to pass from the line to the excavator and then through the grease line to the trench hand, resulting in his death.
Following OSHA’s investigation, Compass was cited for two serious violations of the Code of Federal Regulations. One item alleged a violation of 29 C.F.R. 1926.21(b)(2).
Construction industry employers are increasingly being cited under this standard. This standard states that “the employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”
The Court concluded that because of the JSA completed by Compass and the fact that the employees were trained under the JSA concerning the excavator (which included training regarding the overhead power lines), Compass had recognized a hazard to its employees.
Compass argued that it had no reason to anticipate that the trench hand, or the excavator for that matter, would ever have any exposure to the overhead power lines. On the basis of the practice adopted by the excavator operator, the excavator was never moved close to the power lines. Even on March 18 it operated approximately 200 feet from the overhead power lines. Therefore, under the four-part test established in the Atlantic Battery Co. case, the standard for which Compass was cited was not applicable to the facts of the case, nor did Compass have actual or constructive knowledge of a hazard.
Under the fourth definition provided for the word prudence in Merriam-Webster’s Collegiate Dictionary, 11th edition, prudence is “caution or circumspection as to danger or risk.” [It seems to me that this definition of prudence requires that the party whose prudence is being judged be aware of a risk. The Tenth Circuit seems to be stretching the definition of prudence beyond helping determine whether the employer is aware of a hazard to establishing a test that examines whether the employer or its industry is aware of the hazard.
Typically, with OSHA, Appellate Court decisions apply only to those employers working within the jurisdiction of the Appellate Court rendering the decision. In this case, the applicability of the decision could be limited to the states within the jurisdiction of the Court. However, this rule of thumb does not restrict OSHA’s application of the decision.
All employers in the construction industry need to be aware of this decision and prepare themselves for its broad application in all states under OSHA jurisdiction. Those who wish to minimize the likelihood of being cited for failing to properly train their employees on each job site as required by 29 C.F.R. 1926.21(b)(2) need to take the following steps.
1. Establish an effective safety program.
2. Establish a procedure for conducting a JSA on all aspects of every job you perform and stick to it.
3. Be sure that you train all employees on the job site who are identified under your JSA as having any potential exposure to the hazard identified by the JSA.
4. Be sure that all training received by employees is both effective and appropriate for the hazards to which they may have exposure.
5. In compliance with 29 C.F.R. 1926.20(b)(2), ensure that regular and frequent safety inspections are performed by qualified, competent persons on the entire job site and on all materials and equipment on the job site.
6. Document these inspections.
7. Have in place an effective and uniformly enforced disciplinary program on safety to ensure that safety training is implemented at all times during the job.
This article reenforces the importance of training in the workplace and demonstrates one of the ways OSHA is addressing this requirement. If you have any questions concerning the scope of this decision or how it might apply to your company, please contact me at 937-223-6003 so that we might discuss how this recent decision might affect your company.
Gary Auman of Dunlevey Mahan & Furry is legal counsel for the National Insulation Association, the Midwest Insulation Contractors Association, the National Frame Building Association and the Midwest Roofing Contractors Association