An independent federal review board has upheld 18 citations and an $871,500 fine against a Missouri bridge painting contractor in the deaths of two workers killed weeks apart at the same worksite.
The Occupational Safety and Health Review Commission, an independent agency, affirmed a total of six serious violations, 12 willful violations and the fine against Thomas Industrial Coatings Inc. of Pevely, MO, just south of St. Louis, the Occupational Safety and Health Administration said in a statement Tuesday (Nov. 9).
OSHA had issued the citations and fines against the company in 2006 after two of the company's employees fell 35-40 feet from the same scaffold platform, on the same worksite, within two months of each other.
Those two deaths followed a third one earlier that year, in which an employee fell from a scaffold near St. Louis and drowned in the Missouri River.
Company owner Don Thomas disputed the OSHA announcement in an interview Thursday (Nov. 11).
“The review commission has not even received our appeal yet, so there is no way that the commission ruled on anything,” Thomas said. He said the appeal was not due until Friday (Nov. 12), when his company would file it.
Thomas did say that he had received a letter from a commission Administrative Law Judge about a week ago, advising him of the $871,500 fine and 18 citations.
“But he is not the review commission,” Thomas added. “We are sending in our official request for appeal tomorrow.”
OSHA could not be reached for comment Thursday; the agency was closed in honor of Veterans Day.
Thomas said he did not know why OSHA would have misstated the status of the case.
“People in organizations misspeak by not knowing the facts or simply to imply their versions,” he said without elaborating. “Weak people feed off negativity.”
“It’s easy for anybody to say anything when they don’t have to be held accountable,” Thomas said. “It’s frustrating.” He said some of the OSHA statement was true while the rest was “mixed truth,” but he declined to discuss specifics.
Thomas vigorously defended his company’s commitment to safety. “Guys have to go through 17 to 20 classes just to work here,” he said. “This is what it takes to work here.”
“I’ve spent millions of dollars defending myself because I thought I was right. This is a real company; we deal with real people’s lives.
“The main true fact of this situation is that quality men died, and they did not need to.”
Egregious Penalty Policy
The Review Commission is an independent federal agency established to review contested citations or penalties resulting from OSHA inspections. The commission functions as an administrative court, with established procedures for conducting hearings, receiving evidence and rendering decisions by its Administrative Law Judges (ALJs).
Of significance in the current ruling, OSHA said, was the judge's affirmation of OSHA's egregious or “violation–by–violation” penalty policy, where eight willful violations were issued to the company accounting for each employee exposed to the same fall hazard.
"We hope the penalties upheld by the review commission send a message to employers everywhere that they can't disregard vital safety measures at the expense of their workers," said Dr. David Michaels, Assistant Secretary of Labor for OSHA.
"We're especially pleased that the judge has affirmed our egregious case penalty policy. We hope employers will be deterred by the potentially higher fines they could face, and will address hazards before OSHA gets there and before workers get hurt."
6 Months, 3 Deaths
The new ruling settles the OSHA cases stemming from the two latter 2006 deaths, which OSHA records summarize this way:
On May 10, 2006, an employee was working from a suspended metal decked scaffold platform to paint the underside of a bridge. Using a brush tied to a short pole, he painted overhead to reach the underside of the bridge. As he was painting the bridge, the employee stepped backwards and fell through a hole in the decking of the scaffold, measuring 4 feet by 4 feet, and fell approximately 40 feet to the ground.
That case originally resulted in the issuing of 26 willful and four serious violations and a proposed fine of $1,840,800.
On July 5, 2006, an employee was removing metal decking from a scaffold platform being dismantled and suspended under a bridge. The decking piece on which he was standing was not adequately supported by the supporting cables. It shifted, and the employee fell off the scaffold to the ground, approximately 35 feet below.
Four serious and seven willful citations were initially issued in that case, with a proposed penalty of $514,500.
The citations specifically addressed what OSHA said was the employer's failure to provide workers with fall protection and/or guarding of scaffold platform openings and training in the use of fall protection. OSHA has said neither man was wearing safety equipment required by federal law.
Still pending is the OSHA case stemming from a fatal fall on Feb. 17, 2006, when a worker was erecting a Safespan scaffolding system under a bridge. The scaffolding platform failed, dropping the employee and three coworkers, according to OSHA records.
The three coworkers were rescued from their fall protection systems, but the fourth fell into the river. His body was not recovered until April 18. That case, which remains open, resulted in two serious and one willful violation with a proposed penalty of $64,000.
"Companies that willfully and intentionally violate the Occupational Safety and Health Act will be prosecuted to the fullest extent of the law," said Charles E. Adkins, OSHA's regional administrator in Kansas City, MO. "Employers must fulfill their responsibility to keep employees safe, or face the consequences when they fail to do so."
OSHA records also show a series of now-closed cases against Thomas Industrial Coatings since the year 2000: two cases in 2002, one in 2003, four in 2005, and one in 2009. One of the 2002 cases was dismissed, and the other was settled informally, according to OSHA records. The rest were adjudicated by OHSRC.
Several cases involved falls, including one in which an employee broke his leg. Further details could not be obtained Thursday, because the agency was closed in honor of Veterans Day.
The Associated Press also reports that the company lost two other workers in falls from highway bridges in the mid-1990s. Investigators said no harnesses or life jackets were found on either man's body, and OSHA cited the company for safety violations in both deaths, AP reported.
In October, the Missouri Department of Transportation announced that it would fine Thomas Industrial Coatings up to $24,000 for failing to clear a highway work site on time as contractually required. A piece of vacuum equipment broke down as the crew worked overnight, forcing the company to do manual cleanup and delaying reopening of the highway in time for the morning rush hour.
Editor’s Note: Due to erroneous statements by OSHA, parts of this article were later determined to be inaccurate. The article was corrected and clarified in full on Nov. 12, 2010.