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A Missouri bridge painting contractor has appealed federal penalties in the deaths of two employees, saying his company took extensive, on-going steps to enforce worker safety.
Several workers did not comply with certain safety rules, but the company should not be held responsible for that, Thomas Industrial Coatings (TIC) argues in its Petition for Discretionary Review, filed with the Occupational Safety and Health Review Commission.
The company, based in Pevely, MO, is appealing 18 citations and an $871,500 fine by a commission Administrative Law Judge in the combined cases of two painters who were killed in falls from the same scaffold just weeks apart. Their deaths, in May and July of 2006, followed another fatal fall by another TIC employee at a different site in February 2006.
The commission is an independent federal agency that reviews appeals of penalties and citations imposed by the Occupational Safety and Health Administration.
Safety Policies
In its appeal, TIC says that the company has a written safety program that is communicated to employees during company-sponsored training, jobsite training, union training and orientation. The program includes a requirement to use personal fall arrest systems for workers working at six feet or above without safety nets or a handrail.
The appeal says that TIC’s longtime corporate safety and health director, Wayne Long, is responsible for training and for communicating and enforcing rules.
Foremen are trained in how to complete a safety site checklist and how to conduct tool box talks. “TIC expected foremen to complete” the checklists “on a weekly basis,” the appeal says. The company offers foremen an additional $3 per hour if they submit weekly site audit reports and tool box talk records, the appeal says.
In addition to its in-house efforts, the company also is subject to “numerous third-party audits” by consultants and insurers for safety issues and follows any recommendations made by these parties.
Penalties and Inspections
In 2005, the company says, it increased penalties for employee noncompliance with fall-protection rules. Rather than sending home a worker found in violation, as had been the practice, the entire crew “could be sent home without pay for a week”—a policy that was invoked “on several occasions,” the appeal says.
After the February 2006 death of James Belfield (which is not part of this appeal), company owner Don Thomas reportedly met with most of his foremen and all of his project managers to discuss safety and visited “all of the active jobsites” over the next month.
After painter Dan Denzer was killed in May 2006, TIC “evaluated the vast majority of current jobsites, reiterated safety issues, and provided additional training,” the company says. The company also sent a letter to all employees, reminding them of the fall-protection policy.
‘Employee Misconduct’
The appeal accuses Denzer and foreman Scott Cawvey of “employee misconduct” in Denzer’s death, saying that they had erected the platform from which Denzer fell. “Errors in the installation of the platform do not prove that it was not designed by a qualified person,” and both Cawvey and Denzer were highly qualified in erecting the platforms, the appeal says.
“While errors were made in the installation of the platform, it was reasonable to believe that Thomas did not know that TIC’s safety rules related to scaffolding were going to be violated by Cawvey and Denzer,” the appeal said.
“Thomas reasonably believed, based upon their experience and absence of any prior noncompliance with TIC work rules, that Cawvey and Denzer would build a compliant platform, as they had many times in past. Thomas had absolutely no indication that the Lexington Bridge Project needed additional oversight or input.”
On the other hand, TIC acknowledges, it did not formally discipline Cawvey after the accident, which OSHA construed as a “willful” citation.
‘Sudden’ Violation of Rules
Regarding the July 5 death, TIC says it had no way of knowing that two veteran employees who had been tied off all morning did not tie off again after the lunch break.
“An employer cannot be expected to predict that an experienced worker with a good safety record will suddenly and uncharacteristically violate safety rules, and it is unnecessary and unreasonable to expect such an employee to be monitored every minute of his shift,” the appeal says.
It adds: “[T]here is no evidence that TIC management actually knew that the workers were not tied off during July 5, 2006. Mr. Runyon, the foreman, was not at the worksite at the time.”
Other Arguments
Among other points in the 52-page appeal:
• TIC contends that it should not be cited repeatedly under the same standard for violations at a single job site or that a single employee should be cited for the same violation on multiple days.
• The commission judge wrongly relied on testimony at OSHA hearings by several individuals who have suits pending against the company, including a former employee referred to as John Doe.
• TIC contends that a supervisor did do daily site inspections after May 22 (the supervisor testified that he had inspected “most every day”).
• OSHA should not have relied exclusively on written inspection reports, but should have asked employees if they did inspections.
The appeal also says that the company does not have the means to pay a significant penalty and that a large penalty “could put TIC out of business.”
The commission has until Nov. 26 to decide if it will accept the appeal for review. If it does not, the ruling of the Administrative Law Judge stands.
The OSHA case involving Belfield’s death, in February 2006, is already pending before the commission.
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