Pot-smoking witnesses, statements by an unconscious supervisor, government conspiracies, lying to investigators, coached witnesses, obscenity-laced threats, and a texted offer to sell hearing testimony all added up to a federal ruling that is not likely to go well for an Illinois tank cleaning company.
Although not yet final, a draft order by the Occupational Safety and Health Review Commission indicates that the commission is prepared to uphold three willful violations and more than $150,000 in fines against Dana Container Inc., of Summit, IL.
|A confined space is a confined space, even if employees are not required to enter it, the judge ruled.|
The company did not respond Friday (April 9) to a request for comment on the case.
The 2009 case involves a third-shift supervisor who was overcome by toluene, ethyl alcohol and ethyl silicate vapors when he climbed into a tank that he was cleaning to clear a valve. The supervisor was found unconscious at the bottom of the tank. Rescue crews retrieved the man from the tank, and he later recovered at a hospital.
The Occupational Safety and Health Administration cited Dana Container for 16 serious violations, three willful violations and one repeat violation and fined the company $314,000. Most of the citations involved Permit Required Confined Space (PRCS) violations.
The company appealed to the commission, an independent agency that reviews OSHA decisions.
Finding the ‘Least Incredible’
In this case, however, the usual dry fact-finding process dissolved into “particularly contentious” hearings filled with charges and countercharges of the bizarre, unethical and illegal.
Indeed, the testimony and statements included so much trash talk that the order does not identify the witnesses, for their own legal protection.
Moreover, Calhoun wrote, the testimony was so outlandish and inconsistent on all sides that the goal was not to find a credible witness but the “least incredible” one.
Statements of the Unconscious
The order paints a picture of a facility in chaos, conflict and confusion. Calhoun notes:
• When an OSHA inspector arrived at Dana just after the unconscious employee (identified as Supervisor #1) was taken to the hospital, the plant manager handed her a typed “incident statement” supposedly made by the supervisor about what had happened. She was also given a “written notice of discipline” that the manager had already supposedly issued.
The victim later said he had not even seen the manager that day, and the judge threw out the documents.
• The plant manager and the bogus victim statement both said the employee had been wearing a harness in the tank. The responding paramedic who rescued the victim noted that he had to rig his own webbing and said there had been no harness. The judge sided with the paramedic.
• Company lawyers pursued a “slash and burn strategy” to discredit another Dana employee (“Ex-Tank Washer”) who was fired after raising concern about workers entering the tanks unprotected, the judge said. The plant manager vividly described what he said were ex-Tank Washer’s many felony convictions, including “violent crimes against females.” No evidence of the convictions was produced.
• Ex-Tank Washer himself openly admitted smoking marijuana off the job and said other people smoked it on the job. But he was also unable to get the story of his firing straight, and the judge threw out his testimony and complaints as well.
‘Conspiracies and Intrigue’
• Some witnesses’ testimony “seemed scripted, as they repeated certain phrases, regardless of the questions they were asked,” the judge wrote.
• Company lawyers “conjured up” accusations of “government misconduct” involving the OSHA inspector—”conspiracies and intrigue” that the judge rejected.
• Another former supervisor (Ex-Supervisor #2) offered testimony that was “riddled with contradictions,” the judge wrote. He “continuously elaborated, refined, or backtracked from his initial responses to questions”—even innocuous ones.
• Ex-Supervisor #2 was also questioned about a text he had sent a company lawyer in the middle of the OSHRC hearing. The text read, “20 an hour, a hand shake from [the plant manager]. If I tell the truth up there, it will hurt him.”
Ex-Supervisor #2 later admitted that if he could get his job back for $20 an hour, he would develop a family “emergency” and not show up to testify. Wrote Calhoun: “Ex-Supervisor #2 essentially admitted on the record he could be bought.”
Despite the personal dramas, the most significant part of Dana’s appeal centered on two arguments involving the willful confined-space violations:
• That the tanks could not be considered a PRCS because the company did not allow employees to enter “dirty” tanks and clean tanks posed no hazard; and
• That the company should not be held responsible for Supervisor #1’s “unpreventable employee misconduct” when he entered the tank.
The company lost both arguments.
First, the judge ruled, the commission has determined that a confined space is a confined space, whether or not an employee is required to enter it.
(She dismissed as “nonsensical” the company’s claim that having a retrieval line on site complied with the requirement that it be attached to a worker.)
The next issue was hotly debated: Was Supervisor #1 a rogue employee who violated PRCS procedures, or were the procedures routinely ignored? “A parade of” employees testified that they had never seen anyone enter a dirty tank. “Much of this testimony appeared coached,” the judge noted.
The two former employees said that workers entered dirty tanks almost every day. Although they were discredited for other reasons, the judge noted that every one of the 28 tank entry permits she reviewed had errors or omissions, indicating a lax PRCS policy.
‘I Run a Lax Discipline’
And Supervisor #1 himself testified that rules were not enforced.
“[W]e have seen a classic example over the last two days of why I run a lax discipline, documented discipline, because it opens the door for every employee who gets angry to pick up the phone and call OSHA,” he said.
The ruling is not yet final, but it does not bode well for Dana. The judge gave the company “no credit for good faith” in the case.
She added: The record indicates Dana attempted to manipulate OSHA’s inspection from the time [the inspector] entered the facility.”