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Piping firm loses fight against safety fine

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A federal appeals court let stand a fine against a Massachusetts-based piping manufacturer whose employee lost several fingers in a workplace accident.

The 1st U.S. Circuit Court of Appeals, in a decision published on Monday, denied a petition to review a final order of the Occupational Safety and Health Review Commission affirming the fine.

The penalty was levied against Thomas G. Gallagher Inc. by the U.S. Occupational Safety and Health Administration for two violations of OSHA workplace health and safety standards, according to court documents.

Jason Thibault, a union member working on Aug. 1, 2014, as a pipefitter for Gallagher, which makes prefabricated piping systems for installation in major construction projects, injured his right hand while attempting to steady a pipe assembly. Mr. Thibault lost his index and middle fingers above the knuckles in the incident. The pipe assembly, it turns out, had been rigged improperly, according to court documents.

An OSHA compliance officer found serious violations of several OSHA workplace safety standards and issued Gallagher a two-item citation with a $11,250 total penalty: $7,000 for the first violation and $4,250 for the second, which Gallagher contested.

The Department of Labor and Gallagher agreed that the cited OSHA general industry standards applied to the alleged violations, but Gallagher contested that it had knowledge of the two violations and asserted an affirmative defense of unpreventable employee misconduct.

The administrative law judge overseeing the case found that Gallagher had the requisite knowledge of the prohibited condition and that Gallagher did not prove its affirmative defense with respect to either violation. The judge affirmed the citation for both serious violations, but imposed a reduced penalty of $1,050 for the first serious violation and of $2,450 for the second serious violation.

The review commission declined to direct that petition for review – a decision Gallagher challenged specifically with regard to the judge’s determination that Gallagher had constructive knowledge on the serious violations. The company did not dispute that its two employees rigged and hoisted the pipe assembly in violation of this safety standard, just that it had knowledge of the violation.

But the 1st circuit rejected Gallagher’s arguments, including its contention that the administrative law judge’s conclusion that Gallagher failed to exercise reasonable diligence was wrong as a matter of law and the judge’s finding that it was more likely than not that the employees, including Mr. Thibault, would have understood and complied with that safety protocol had it been communicated to them, meaning that their supervisor’s inadequate communication gave rise to the violation.

“As Gallagher does not challenge any of these findings, Gallagher's challenge to the ALJ's reasonable diligence – and thus constructive knowledge – analysis cannot succeed,” the court said.

A lawyer for the company could not be immediately reached for comment.