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The Occupational Safety and Health Review Commission has unanimously affirmed a general duty clause citation and a $6,300 penalty against a cargo handling company whose employee was struck by a forklift and died from his injuries in yet another test of the U.S. Occupational Safety and Health Administration’s use of the clause to cite employers.
OSHA issued a one-item serious citation alleging a violation of the Occupational Safety and Health Act’s general duty clause to CSA Equipment Co. LLC, a stevedoring company handling cargo at the Port of Mobile, Alabama, after the employee died because CSA allegedly “failed to provide a clear view of the designated path of travel for the (forklifts), exposing employees to crushing hazards while materials are checked into the warehouse,” according to Tuesday’s decision in Secretary of Labor v. CSA Equipment Company LLC.
On Dec. 29, 2011, the day of the accident, CSA was unloading steel coils from three hatches on a vessel and transporting them into three entrances to the warehouse, according to review commission documents. The accident that led to the citation involved one of CSA’s longshoremen, who was working as a coil-checker or “clerk.” CSA’s clerks are responsible for checking cargo as it is unloaded from a vessel. On the day of the accident, the clerk was checking a coil when he was struck by a forklift and crushed between the counterweight of the forklift and the steel coil.
The citation listed three alternative abatement methods, and an administrative law judge affirmed the citation after concluding that the citation’s third abatement method — setting up a separate “safe area” where employees could check materials free from forklift struck-by hazards — was feasible based on her finding that, after the accident, CSA had implemented that method, according to review commission documents.
The commissioners reviewed that decision and did not address the merits of the alleged violation but remanded the case to the law judge to “determine, based on all of the evidence in the record, whether the (proposed abatement) method of separating (employees) and the forklifts ... will materially reduce or eliminate the cited hazard, taking into account whether implementing that method of abatement would create safety consequences so adverse as to render its use infeasible.” The law judge again affirmed the citation after finding the secretary established a feasible means of abatement and the review commission affirmed that decision.
On review, the commissioners rejected CSA’s contention that the law judge erred in discrediting the testimony of the company’s expert witness, whom the law judge described as “stubborn” for rejecting eyewitness accounts of the incident. CSA’s expert did not personally observe any of the coil-checking procedures in place at any time at CSA’s facility and ignored contradictory testimony from the three eyewitnesses when questioned, according to the review commission’s decision. The expert witness’s testimony regarding the post-accident coil-checking procedure was also based on “his inaccurate understanding of how that procedure was performed; particularly, his (inaccurate) insistence that clerks worked underneath the crane carrying a load and could not move away from the forklifts, as well as his claim that vehicles passed close to the clerks while they were checking coils,” the review commission stated.
The review commission also determined that both the pre-December 2010 procedure — which had allegedly been changed following a client request to speed up the checking process — and post-accident procedure of temporally separating the clerks and the forklifts used by CSA were consistent with the secretary’s proposed abatement method.
“That these procedures were either previously used by CSA, or are currently being used, is prima facie evidence that both procedures were capable of being put into effect at the time of the accident,” the review commission said.
Ron Signorino, president of Blueoceana Co. Inc. in Basking Ridge, New Jersey, who consulted with CSA in the proceedings, said the recommended abatement method puts employees in “extra harm’s way” because of all the vehicles passing on the docks.
“I’m just disappointed, and I think it was a very tortured, confusing and regrettable decision by the commission,” he said.
The secretary issued several subpoenas for a superintendent who allegedly admitted CSA had changed the procedure following the client request to speed up the checking process, but the company failed to produce the superintendent at the hearing, and the law judge granted the secretary’s request that she draw an adverse inference that the superintendent would have testified that the coil-checking procedure was changed to the one in place on the day of the accident to appease a client who wanted the process done faster, according to the decision. However, Mr. Signorino called the holding “really unfair” because the superintendent’s required presence was not discussed in the preparations for the hearing, and “we had no idea that fellow needed to be reseated into this hearing,” and CSA would have produced him at the hearing had it had advance notice.
A decision about a potential appeal has not been made yet, but “there is enough dichotomy in this decision for them to perhaps want to go forward,” he said.
The review commission has recently issued long-awaited decisions on OSHA’s use of the general duty clause to cite employers for hazards that do not currently fall under a particular OSHA standard such as heat stress and workplace violence in the health care and social services sector. Two members of the review commission expressed concern about OSHA’s use of the clause to cite employers when no specific standards exist for certain workplace hazards, even though the commission upheld a citation in one of the cases.
The review commission’s decision in the CSA case “flies in the face of recent rulings” on OSHA’s use of the general duty clause, said Mr. Signorino, a former 16-year OSHA inspector. “They’ve spoken out of both sides of their mouth.”
The Occupational Safety and Health Review Commission vacated a general duty clause citation against a Waffle House owner, although the underlying analysis in the split decision triggered a disagreement among the three commissioners in which one accused her colleagues of “Monday-morning quarterbacking.”