A recent decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit says the U.S. Labor secretary has the authority to penalize employers on a per-instance basis in willful or egregious cases. This decision is an important victory for the U.S. Labor Department and OSHA.
The rulemaking, opposed by NAHB, dealt with respiratory protection but also amended 33 other standards in the same way, according to the decision, which was written by Senior Circuit Judge A. Raymond Randolph for the panel.
The rulemaking at issue in the case was enacted because of the Erik K. Ho case, in which that employer was cited on a per-instance basis after employing 11 unprotected workers to renovate a Houston building that contained asbestos. The Occupational Safety and Health Review Commission rejected the per-instance approach, holding that only two violations occurred, so DOL enacted a rule to explicitly allow per-instance citations. NAHB contended in this case that only OSHRC can determine units of prosecution, but the judges rejected that argument.
“This is like saying that in a criminal case the court—not the legislature—defines the unit of prosecution because the court has exclusive authority to determine the punishment. That, of course, is not the law,” Randolph wrote. “In giving the Secretary the authority to define what constitutes a violation... the [OSH] Act necessarily gave the Secretary the authority to define the unit of prosecution,” the decision states.
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1st Ever National Action Summit on Health and Safety of Latino Workers a Success
Each year, thousands of workers in the U.S. are injured or killed on the job as a result of preventable incidents with Latino workers being killed and suffering work-related injuries at higher rates than all other workers. It was with these tragic statistics in mind that U.S. Secretary of Labor Hilda L. Solis convened a historic National Action Summit for Latino Worker Health and Safety in Houston on April 14-15, 2010.
The two-day event was co-sponsored by OSHA and the National Institute for Occupational Safety and Health (NIOSH), in partnership with the National Institute of Environmental Health Sciences (NIEHS). It brought together workers and representatives from employer associations, labor unions, the faith community, community organizations, the medical community, safety and health professionals, educators, government officials, consulates, the entertainment community and other, non-traditional partners.
“Our focus at this summit is ensuring that all workers understand they have a right to a safe workplace, that they know what hazards they might face on the job, and that they have a clear sense of how a safe workplace is supposed to look,” said Secretary Solis during her keynote address at the summit. “Workers have a right to talk to their employers about unsafe conditions and, if necessary, to call OSHA. They have a right to get safety equipment that is required by law and paid for by the employer. They have a right to be trained in a language and in a way they understand. Workers need to know how to use these rights without fear of retaliation. And finally, every worker needs to know that he or she has the right to come home alive at the end of the day.”
Workshops at the Summit included: Innovative Partnerships and Effective Education for Latino Workers, The Role of Clinics and Public Health Departments, On-the-Job Programs that Work, Workers’ Rights under OSHA and DOL, Assistance for Small Businesses, Funding Worker Safety and Health Education for Latino Workers, and more.
“Far too many Latino workers have needlessly lost their lives just trying to earn a living, and it must stop,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “This summit will shine a spotlight on the hazards and challenges faced by this vulnerable sector of the nation’s workforce so we can begin crafting new, badly needed strategies to prevent thousands of injuries and deaths every year.”
Employee Killed in Plastic Injection Molding Machine: Buckhorn Inc. Fined $116,000
OSHA has cited Buckhorn Inc., in Springfield, Missouri, following the investigation of an accident in which an employee was crushed inside a plastic injection molding machine. OSHA has proposed $116,000 in penalties against the company.
“There is no excuse for this accident. This worker should not have been allowed to work in the machine without energy sources being locked out,” said Charles Adkins, OSHA’s regional administrator in Kansas City, Missouri. “It is imperative that employers take the necessary steps to eliminate hazards and provide a safe working environment for all of their employees to prevent accidents like this from occurring.”
OSHA’s investigation of the company found one willful and 15 serious violations of the OSH Act. The willful violation stems from the company’s failure to ensure the plastic injection molding machine was isolated from energy sources/turned off and locked out when employees were performing maintenance activities inside the machine’s danger zone. OSHA issues a willful violation when an employer exhibits plain indifference to or intentional disregard for employee safety and health.
The serious violations stem from a lack of open sided floor guarding; obstructed emergency exits; permit required confined space deficiencies; a lack of lockout/tagout training and periodic inspection; a lack of eyewash facilities; improperly stored materials; powered industrial trucks in need of repair not taken from service; welding cylinders not secured in storage; electrical wiring installation deficiencies; lack of strain relief on flexible cords in use; and unmarked containers of hazardous materials. OSHA issues a serious citation when death or serious physical harm is likely to result from a hazard about which an employer knew or should have known.
AmeriCold Logistics Fined $153,000 for Safety Violations
OSHA’s Boise Area Office has cited AmeriCold Logistics LLC, for alleged violations related to unsafe working conditions at the company’s Nampa, Idaho, facility.
“Many of the alleged violations cited were for deficiencies in AmeriCold Logistics’ process safety management, or PSM, program,” said Richard S. Terrill, OSHA’s regional administrator in Seattle. “When properly implemented, PSM programs help ensure that operations involving hazardous chemicals are performed in a safe manner.”
OSHA conducted an inspection under its Chemical Industry National Emphasis Program at the AmeriCold Logistics Nampa facility and found seven alleged serious, four alleged repeat violations, and one other-than-serious violation carrying a total of $153,000 in proposed penalties.
The serious violations involve worker exposure to hazards due to failure to protect ammonia piping from forklift impact, failure to locate discharge pipes in a safe location, failure to implement recommendations from the process hazard team, failure to replace pressure relief valves as recommended, failure to design the PSM covered system, unguarded exposed parts of horizontal shafting, and lack of an adequate respirator for employees.
The repeat violations include unguarded open sided floors or platforms; a lack of piping and instrument diagrams for equipment in safety information; a lack of written procedures to maintain equipment and of inspection and testing of equipment and wiring methods; and equipment and installations of equipment in hazardous locations that are not safe or approved for such areas. A repeat violation is issued when an employer previously was cited for the same or similar violation of any standard, regulation, rule, or order at any other facilities in federal enforcement states within the last three years.
The other-than-serious violation involves unguarded stairway floor openings.
Fleetpride Inc. Facing $61,500 in OSHA Penalties
OSHA has cited Fleetpride Inc., in Willowbrook, Illinois, with $61,500 in proposed penalties for alleged serious and repeat violations of federal workplace safety standards. As a result of a February inspection, OSHA has cited the company with three alleged serious violations for damaged, inoperable emergency lighting; exit signs not illuminated; and a damaged fall protection lanyard not taken out of service. An OSHA violation is serious if death or serious physical harm can result from a hazard an employer knew or should have known exists.
Fleetpride Inc., also received four repeat violations alleging improper personal protective equipment, no hazard assessment certification, no personal protective equipment training certification, and no cover on an electrical box.
“These types of violations show the disregard the company has for the safety and welfare of its employees,” said OSHA Area Director Kathy Webb in North Aurora, Illinois. “Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”
Fleetpride Inc., is a nationwide truck parts distributer with its corporate headquarters located in Woodlands, Texas.
President Obama Promises Immediate Mine Safety Changes
After meeting with MSHA chief Joe Main, Secretary Hilda Solis, and Kevin Stricklin, administrator for coal mine safety and health, President Obama pledged “immediate” inspections of mines with “troubling safety records” and a review of how MSHA is operating. The president also said his administration is taking steps immediately to increase inspections and review how MSHA is operating.
The White House Web site posted the text of President Obama’s remarks, including these comments: “On April 5th, the United States suffered the worst mine disaster in more than a generation. Twenty-nine lives were lost. Families have been devastated. Communities have been upended. And during this painful time, all of us are mourning with the people of Montcoal and Whitesville and Naoma and the Coal River Valley. The people of West Virginia are in our prayers. But we owe them more than prayers. We owe them action. We owe them accountability. We owe them an assurance that when they go to work every day, when they enter that dark mine, they are not alone. They ought to know that behind them there is a company that’s doing what it takes to protect them, and a government that is looking out for their safety.”
“I want to emphasize that this investigation is ongoing, and there’s still a lot that we don’t know. But we do know that this tragedy was triggered by a failure at the Upper Big Branch mine—a failure first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue. So today I’ve directed Secretary Solis, Assistant Secretary Main, and Administrator Stricklin to work closely with state mining officials to press ahead with this investigation—so we can help make sure a disaster like this never happens again. Owners responsible for conditions in the Upper Big Branch mine should be held accountable for decisions they made and preventive measures they failed to take. And I’ve asked Secretary Solis to work with the Justice Department to ensure that every tool in the federal government is available in this investigation.”
“But this isn’t just about a single mine. It’s about all of our mines. The safety record at the Massey Upper Big Branch mine was troubling. And it’s clear that while there are many responsible companies, far too many mines aren’t doing enough to protect their workers’ safety.”
President Obama listed these actions being taken:
- Inspectors will visit “mines across this country with troubling safety records… to ensure they aren’t facing the same unsafe working conditions that led to this disaster”
- Working with Congress “to strengthen enforcement of existing laws and close loopholes that permit companies to shirk their responsibilities”
- Reviewing how MSHA operates
OSHA Providing Guidance to Employers and Contractors during Rhode Island Flood Cleanup
The Providence Area OSHA Office is providing technical assistance to employers, contractors, business owners, and others performing cleanup and recovery activities resulting from the recent record-breaking flooding that has engulfed Rhode Island.
Those hazards can include contaminated water, mold, heat stress, exposure to the elements, carbon monoxide poisoning, drowning, toxic or oxygen-deficient confined spaces, falls, electrocution, crushing, and struck-by hazards.
Over the next 30 days, OSHA will be visiting cleanup sites throughout the Ocean State in an advisory capacity to observe activities, and offer employers and workers information and guidance on identifying and addressing cleanup hazards.
Fallen Oregon Workers to be Remembered April 28
Oregon’s Occupational Safety and Health Division (Oregon OSHA), a division of the Department of Consumer and Business Services, invites all Oregonians to attend a noon ceremony on Wednesday, April 28, 2010. The event will take place at the Fallen Workers Memorial outside the Labor and Industries Building on the Capitol Mall in Salem. The memorial service, coordinated by the Oregon AFL-CIO, will feature the reading of the names of Oregon workers who died on the job in 2009. Oregon OSHA’s Administrator Michael Wood and Oregon AFL-CIO President Tom Chamberlain will be among the speakers.
“Recent headlines have been focused on the almost 150,000 out-of-work Oregonians. Today, though, we turn our attention to the conditions our brothers and sisters who are working face every day on the job,” said Tom Chamberlain, president of Oregon AFL-CIO. “We must continue to work together to ensure every workplace in Oregon is safe. No one should have to choose between risking their health, or their life, and supporting themselves and their family.”
The annual Workers Memorial Day on April 28 serves as a nationwide day of remembrance. It recognizes the thousands of U.S. workers who die each year on the job, and the more than 1 million people in the United States who are injured each year while at work. The observance is held on April 28 because on that date in 1970, Congress passed the Occupational Safety and Health Act. “There are still too many risks in the workplace, and many of the most dangerous are problems that we know how to fix,” said Michael Wood, Oregon OSHA administrator. “Workers Memorial Day is a reminder that a death in the workplace is a story that is cut short, and each loss represents the loss of dreams for the future.”
Through a partnership of labor, business, and government working together to improve workplace safety and health conditions in Oregon, the number of fatal workplace incidents eligible for workers’ compensation benefits have been cut by roughly three-quarters since the Oregon Safe Employment Act was enacted in 1973.
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