Truck-tank wash didn’t address plain safety violations, OSHA willful violations upheld

By Joy Waltemath

By Lorene D. Park, J.D.

Denying a petition to review an Occupational Safety and Health Review Commission finding of multiple willful violations of the Occupational Safety and Health Act, the Seventh Circuit concluded that the Commission reasonably imputed to the employer a supervisor’s knowledge of his own misconduct in failing to follow safety procedures that could have prevented his injury from hazardous chemicals. The Commission also reasonably rejected the employer’s good faith defense, considering evidence that it failed to address employees’ plain violations of safety rules (Dana Container, Inc. v. Secretary of Labor, February 1, 2017, Wood, D.).

Tank-cleaning process. The employer operates a truck-tank washing facility, where truck tanks are cleaned of the ink, latex, or other product that the truck transported. Before washing a tank, employees drain residual product. They then insert a mechanical spinner that scrubs from one end of the tank to the other while it is doused with soap or solvents. After that, the tank is rinsed and dried. If this process does not suffice to clean the tank, employees enter it and manually remove remaining sludge or residue. Employees typically had to enter tanks ten times per month.

OSHA regs. Because confined tank space may contain hazardous chemicals, OSHA regulations require companies to enforce safety precautions when employees enter “permit-required confined spaces (PRCSs).” An employee must obtain an entry permit from a supervisor before entering, can only enter a tank that has first been mechanically cleaned, must test tank air for hazards, and must climb a catwalk above the tank and wear a full-body harness hooked to a mechanical retrieval device to pull him out if he becomes incapacitated. While an employee is in the tank, he wears a respirator and automatic blowers force fresh air into the tank. A coworker must be on standby outside the tank to assist in an emergency.

Employee injured. In January 2009, one of the employer’s third-shift supervisors was working on a trailer and encountered a clogged valve as he was about to start the mechanical cleaning process. Disregarding safety rules, he entered the tank without cleaning it, without a retrieval device, and without following entry permit procedures. A short while later another worker found him unconscious in a pool of chemical sludge. The fire department transported him to the hospital, where he was diagnosed with having fainted from the toxic effect of an unspecified gas.

OSHA citations. An OSHA inspector happened to see the story on the news and she volunteered to inspect the employer’s facility. She arrived within three hours of the accident and, after her inspection, she issued two citations for serious and willful violations of the Occupational Safety and Health Act. Most of the items listed in the citations were for violations of the PRCS standards. The employer contested the citations and the Secretary of Labor settled some of the items. The rest went before an administrative law judge, who upheld several specific violations and vacated others. Both parties appealed and the Occupational Safety and Health Review Commission ruled in favor of the DOL, reinstating dismissed items and affirming the rest.

Supervisor’s knowledge of his own misconduct imputed to employer. Rejecting the employer’s petition for review, the Seventh Circuit found that the Commission’s factual findings were supported by substantial evidence on the record and that its decision was not arbitrary or capricious or contrary to law. Under Commission precedent, even without a defect in the employer’s safety program, the Secretary could prove that the employer knew about the problem, thus establishing a “serious” violation, if a supervisory employee had actual or constructive knowledge of the violation. Because the employee who was injured in this case was a supervisor and had actual knowledge of his own misconduct, and his actions were within the scope of his employment, the Commission properly imputed this knowledge to the employer.

Inadequate safety program. The employer argued that the Seventh Circuit should adopt the Third Circuit’s view, which requires that the Secretary prove the supervisor’s misconduct was foreseeable due to an inadequate safety program, but that argument failed. The Commission, perhaps foreseeing this argument, tested its conclusion under the Third Circuit’s standard and found that the employer’s program was indeed inadequate. This conclusion also had sufficient support in the record, including evidence that nearly all of the employer’s tank entry permits had errors or omissions and some entries exceeded the maximum duration of 20 minutes by over an hour. There were also flaws in the required air monitoring. In sum, the appeals court saw no reason to set aside the Commission’s conclusion.

Good faith defense fails. Willful violations are subject to $70,000 penalties for each one, which is much higher than the $7,000 for serious violations. While neither party disputed that the supervisor’s behavior leading to his injury was willful, the employer argued that it established a good faith defense that should have precluded imputing the supervisor’s state of mind. It pointed to its rules prohibiting the behavior in which the supervisor engaged, its record of disciplining employees who violated safety rules, and its safety procedures and bilingual training program.

Notwithstanding the foregoing, the appeals court found that the Commission reasonably concluded that the employer’s failure to follow up on documented violations by employees of its safety-permit protocol precluded a finding of good faith. While the employer communicated its work rules to employees and had evidence of three instances of discipline, the Commission pointed out that the facility manager had never disciplined any employee for improperly completing permits or for the violations that were apparent on the face of permits. Because the employer failed to take action when violations were plain, it did not show a good faith effort.

Source:: Truck-tank wash didn’t address plain safety violations, OSHA willful violations upheld