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OSHA Errs in Case Against Painting Contractor

Friday, November 12, 2010

The Occupational Safety and Health Administration has erroneously reported the status of a case involving the deaths of two employees of a Missouri industrial painting contractor.

OSHA announced in a press release Tuesday (Nov. 9) that the Occupational Safety and Health Review Commission had “ruled in favor of upholding citations issued to Thomas Industrial Coatings Inc. of Pevely, MO, following an investigation into two separate worker deaths at the same worksite.”

The case involved fatal falls by two TIC employees from the same scaffolding at the same worksite in May and July of 2006.

Appeal Pending

OSHA said that the Review Commission, which reviews contested OSHA citations and penalties, had “upheld” six serious and 12 willful citations, as well as an $871,500 fine recommended by the agency’s Administrative Law Judge in the case against TIC.

OSHRC is an independent federal agency that functions as an administrative court, with established procedures for conducting hearings, receiving evidence and rendering decisions by its Administrative Law Judges (ALJs).

In this case, Administrative Law Judge Ken S. Welsch, did issue those penalties against TIC in a 71-page decision on Oct. 18, but the company was given until Monday (Nov. 15) to appeal the decision. Initially, OSHA had issued a total of 41 citations and proposed a fine of $2.35 million in the two cases.

Thomas said in an interview Thursday with PaintSquare News that he planned to file an appeal by Friday, but he was unavailable Friday for comment.

If no appeal is filed, the decision stands, an OSHRC spokesman said Friday. If an appeal is filed, the commission has until Nov. 26 to determine whether to accept it for review. As of Friday, however, the commission had neither received nor reviewed the judge’s decision.

‘Weak People’

The Review Commission spokesman said his agency had alerted OSHA to its error, but the inaccurate release remained on OSHA’s website Friday. OSHA did not respond Friday to repeated requests for comment.

Thomas said Thursday that OSHA had 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.”

The deaths of the two TIC employees followed the death of a third in February 2006 on a different worksite. In that case, the worker fell from the scaffold into the Missouri River and drowned. His body was recovered two months later.

The February case was also appealed and adjudicated by Welsch, who found one serious and one willful violation and assessed a penalty of $11,200 in August 2009. The case is still pending commission review.

Founded in 1991, Thomas Industrial Coatings has been the subject of several OSHA investigations, citations and penalties.

Comment from Car F., (11/15/2010, 10:56 AM)

Jail the criminals!!!

Comment from Jeff Daniels, (11/15/2010, 1:06 PM)

What's criminal is that OSHA can go on a government-sponsored witch hunt against legit contractors, spending millions of dollars every year attempting to levy fines. It's also criminal that employees can be provided all the necessary training and PPE, but choose not use it. Then the contractor gets stuck in a no-win situation with no penalty being imposed on the employee.

Comment from Craig Campbell, (11/15/2010, 2:33 PM)

Nothing can be more serious than a fatality on any project. We are all acutely aware of the costs associated with safety and the imparity of having a safety conscious workforce and workplace. Procedures need to be in place to provide for an annual review of each employee's safety record and to evaluate them just as importantly--if not more--than work performance. Leading indicators exist to determine the probability of increased safety incidents, and those found to be inclined to commit future violations need to be terminated.

Comment from Ronald Fosnaught, (11/15/2010, 6:04 PM)

The fact that three employees died while performing their duties in a 6 month period is a crime. Is it the fault of the team or the coach that these incidents occurred? I agree the labor force must be trained and retrained annually. I agree that employees negate the fact that they are given the state of the art safety equipment and still use them on their terms. That is why a competent person or safety person is by OSHA law required to inspect all rigging daily and sign off on it, have a site specific training on that particular rigging or equipment, and that when they observe an employee neglecting their duty to use the safety equipment and rigging equipment properly, are required to document and reprimand and/or remove that employee from the site until they are retrained and acknowledge the fact they will be terminated if a repeat incident occurs. If the deaths are the result of improper rigging, unsafe access equipment, lack of training or any other related item that is the contractor's responsibility, then the contractor should be liable to the fullest extent of the law whether it be judicial and or civil.