Judge affirms safety citation against defense contractor

An administrative law judge of the Occupational Safety and Health Review Commission upheld a serious citation issued against a defense contractor and a $4,125 penalty proposed by the U.S. Occupational Safety and Health Administration.

In August 2015, OSHA inspected Austal USA, L.L.C.’s facility in Mobile, Alabama, in response to an employee complaint about an unsafe hand tool, called a “miller tool,” provided by Austal to its employees, according to the judge’s ruling released Friday. In January 2016, OSHA issued a citation to the defense contractor, which is engaged in the design and manufacture of ships, alleging a serious violation of the general duty clause of the Occupational Safety and Health Act. In September 2016, the Labor Department later filed a motion to amend the citation as a violation of OSHA’s hand tools standard that bars employers from issuing or permitting the use of unsafe hand tools.

OSHA alleged Austal’s employees were exposed to amputations, severe lacerations and other injuries associated with being struck by the toothed saw blade of the miller tool and proposed a $4,125 fine, which the company contested.

Five employees who had been injured while using miller tools testified about their injuries during a hearing before the judge, including that they were not disciplined for violating work rules or for the accident, although one employee was fired for failing a drug test, according to the ruling. In contrast, 11 Austal supervisors and foremen generally testified that the miller tool is safe if used properly and that any injuries sustained by employees using the miller tool were caused by improper use.

Austal argued that the injured employee witnesses were not credible, partly because they are privately suing the company – an argument rejected by the judge. 

“It is apparent in this proceeding that the self-interest of each witness employed by Austal could impact his or her testimony,” the judge said. “Whether an employee was seeking a favorable judgment, continued good standing with his or her employer or exculpation from charges of misconduct or negligence, each witness had some incentive to color his or her testimony in the most favorable light. I do not find the injured employee witnesses lack credibility solely because they are engaged in private litigation with Austal, any more than I find Austal’s supervisor witnesses lack credibility simply because they are in management.”

The judge also found that much of the testimony was immaterial to the issues the judge was considering and that neither the injured employees nor the supervisors were particularly credible. 

“The testimony of the injured employee witnesses that they were mocked and threatened when they expressed reluctance to use the miller tools was inconsistent and hyperbolic,” the judge said. “The testimony of supervisory employees that they never encouraged the use of the faster miller tool and they were unconcerned with productivity sounded rehearsed and is implausible.”

The testimony the judge deemed relevant included the fact that many employees over several years were seriously injured while using the miller tool, that Austal’s supervisors, including its senior health and safety manager, were aware many employees had been seriously injured while using the miller tool and that Austal never disciplined any employee injured using the miller tool for misuse of the tool or any other safety infraction.

The judge found the occurrence of at least 29 serious injuries over a 22-month period sufficient to establish the tool being used in each of these instances is likely to cause harm or injury. “I find, therefore, the miller tool is unsafe,” the judge said, adding that the hand tools standard was violated.

The administrative law judge’s decision became a final order of the commission Friday.

An attorney for the company could not be immediately reached for comment.