NOVEMBER 6, 2006:

As a kid, I didn't care much for hide-and-seek. Let 'em hide. Ol' Nick wasn't about to go looking for them.

When I became an OSHA inspector, I learned to play the game. Now I open drawers, poke around in cleaning closets and check fuse boxes. In fact, I've gotten good at finding hiding places. Real good.

Then one day, some smart aleck up and changed the rules of the game. Or at least he tried to. He learned a hard lesson, one I want to share with you.

The Trouble Begins

I was investigating the Sheikh Well & Poor (SWP) oil refinery. A worker had just been killed in a machine accident. I'll spare you the grizzly details. Suffice it to say that I suspected that a leveling cylinder from a man lift was the cause. I removed the cylinder, locked it in a plastic tote box and was about to take it to a machine shop off the site for testing.

That cylinder was now no longer just an ordinary machine part; it was a piece of crucial evidence. What we'd learn from the cylinder would affect the fate of a lot of people. It would determine whether SWP would face charges for the worker's death and what kind of benefits the victim's family would get from workers' comp. The cylinder was also Exhibit A in the wrongful death lawsuit the family had filed against the man lift manufacturer. ?

So as I was taking away the cylinder, Jerry Mander, the SWP refinery general manager practically ran up to me. "Where are you going with that?," he asked breathlessly.

"I'm taking it to a lab for testing," I replied.

"Do you think that's a good idea, Mr. O'Shay?" The voice came from behind me. It belonged to Allie Katz, the site manager.

"Yes, Ms. Katz. I think it's a very good idea."

The sarcasm didn't back her off. "Mr. O'Shay, I don't need to remind you that that cylinder is a very sensitive piece of evidence and needs to be looked after quite carefully."

Now I started getting hot. I got my faults like everybody else. But being stupid isn't one of them. I've been around long enough where I don't need the Ms. Katzes of the world telling me how to do my job. But I bit my tongue and decided to let it go.

The Cylinder Vanishes

Looking back, I almost wish I had given in to temptation and delivered that tongue lashing. Maybe if I had, it would have prevented what happened next.

A week later, I came back from vacation rested and in a good mood. One of my first stops was the machine shop to check on that cylinder. But when I got there I was in for a shock. The cylinder was gone! I looked everywhere, but couldn't find a trace of the bloody thing!

I was frantic. I went right to the office of Donna Tellow, my AAD. [Editor's Note: An AAD or Assistant Area Director, has first level supervisory authority over inspectors in the Area Office] and explained what happened.

There was nothing left to do but notify SPW that their precious cylinder was missing. Donna and I called Mander and delivered the bad news. He just chuckled.

"Mr. O'Shay, let me reassure you that the cylinder is perfectly safe."

"I'm sorry, Mr. Mander. I don't understand. . ."

"The cylinder is right here in my office vault."

Donna and I were completely flabbergasted!

"You see," Mander explained, "Ms. Katz and I were concerned that you might mishandle the cylinder or let somebody steal it. And that would be a disaster. So we removed the cylinder from the machine shop while you were on vacation and brought it back here just to be safe. So you see, everything's under control."

I was seething. It's not just that the creep took the cylinder; it's the fact that he thought that he was actually doing us a favor by doing so!

To make a long story short, we referred the case to the Justice Department and SPW was indicted for one count of obstructing a federal investigation. The SPW officers were shocked. They thought they had done a good deed. But they soon learned the errors of their ways. They ended up pleading guilty to one count of obstruction and were fined $25,000.

Can You Say 'Obstruction'?

Ladies and gentlemen, I hope you all realize that it's a crime -- not an OSHA violation -- but a crime, to obstruct an OSHA inspection. "Obstruction" is serious business.

And that's the problem. Most people associate the word "obstruction" with crooks who shred documents and destroy other evidence so they won't get caught. The SWP people weren't in this class. I know they weren't trying to cover their tracks. In fact, they were actually trying to protect evidence and make sure it wasn't destroyed. Since they didn't trust us to do it right, they simply decided to look after it themselves. They had no idea that by doing this they'd be committing obstruction.

But that's exactly what they ended up doing. You folks need to understand what SPW did not: that unilaterally removing a piece of evidence in a federal investigation is an act of obstruction, even if your motive is to preserve the evidence.

The Moral

You may come across an OSHA inspector who you think is playing fast and loose with a sensitive piece of evidence, the way the SWP officials felt about me. Your recourse in that situation is to call your OSHA office and state your concerns. Yes, you are allowed to go over the inspector's head and talk to a senior official. Just understand that this can backfire because it's not likely to sit well with the inspector you complain about. You can also consult your lawyer about challenging the conduct of the inspection in court.

But the one thing you cannot do under any circumstances is take the law into your own hands and take back physical possession of evidence once it has been removed by an OSHA official. Do that and you're looking at obstruction charges.

**********
Be careful out there and remember, I'll be watching you.

Nick O'Shay
OSHA Inspector

THE CANADIAN PERSPECTIVE

Nick's moral applies equally to Canadian employers: Don't unilaterally remove evidence that has been seized by an OHS official.

One slight difference: In Canada, the duty to cooperate with and refrain from obstructing an OHS official is part of the provincial (or territorial) OHS statute. A company that violates that law is therefore generally guilty of a regulatory offence rather than a crime. However, criminal liability may arise if the obstruction is in the context of a criminal investigation.

GOT A CASE FOR NICK?

Have you or anybody you know had a real-life encounter with an OSHA or OHS inspector that might work for a Nick O'Shay story? Send it to glennd@bongarde.com.

ASK THE EXPERT

Safety Management

WAYNE PARDY, CRSP
VP, Safety Management Services & Auditing
Q5 Systems Limited

For this week's "Ask the Expert," SafetyXChange is pleased to offer the services of Wayne Pardy, SafetyXChange Advisory Board Member and regular contributor to our newsletters.

Wayne Pardy is a graduate of Memorial University of Newfoundland, and is the Vice President of Safety Management Services & Auditing with Q5 Systems Limited, a Canadian-based company specializing in strategic safety management services, consulting training and auditing, as well as audit and inspection management software for environment, health, safety, quality and security professionals.

Holder of an Advanced Safety Certificate (ASC) from the National Safety Council and a Canadian Registered Safety Professional (CRSP), Wayne has been a frequent speaker at national conferences and professional development seminars, and his work has been featured in international conferences and studies in safety management in both the U.S. and Australia. He has also conducted training, auditing and consulting for business, government and labor throughout Canada for the past 20 years. Since 2000, he has assisted many Fortune 500 and 1000 companies improve and implement strategic audit management systems, facilitated through the wide range of Q5 AIMS audit technology solutions, training and consulting.

In addition to his past role as Advisory Board member for the Safety Engineering Technology Program at CONA, he has also guest lectured on safety for the School of Continuing Studies and Professional Development, Memorial University of Newfoundland. He is currently a member of both the Executive and Board of Directors of the Newfoundland and Labrador Construction Safety Association, and has chaired both the Curriculum Committee and Performance Measurement Committee of the NLCSA. Mr. Pardy is also a member of the Minister's Advisory Council on Occupational Health and Safety for the province of Newfoundland and Labrador, providing strategic advice to the province on a number of key health and safety management initiatives of the Department of Labor, and the Workplace Health, Safety and Compensation Commission.

Wayne is author of the book, "Safety Incentives . . . The Pros and Cons of Award and Recognition Programs." The book, published by Moran Associates of Orange Park, Florida, in cooperation with Padro Communications of Washington, DC, explores the strategies which business, government and labor can initiate to provide positive incentives for improving safety performance.

Wayne has also written extensively on safety and quality issues in numerous Canadian and American publications, including OHS Canada magazine, Canadian Occupational Health & Safety, Industrial safety and Hygiene News, Compliance Magazine, Accident Prevention magazine and Occupational Health and Safety.

As past chair of the Editorial Advisory Board for OHS Canada Magazine, and Contributing Editor for safety management for Canadian Occupational Safety Magazine, he is the 1991 winner of the CSSE President's Award for his two part series on "Building an Effective Safety System...Key Strategies for Maximizing Resources and Minimizing Losses". As a contributing author to Industrial Safety and Hygiene News in Pennsylvania, his feature article on Worker Empowerment and Joint Health and Safety Committees won the 1994 American Chilton Editorial Award. This marks the first and only time this award has been won by a Canadian.

Wayne is available to answer your questions regarding safety management, including safety programs, management systems, incentives, behavioral safety, auditing and employee participation challenges.

If You Have Questions for Wayne

Submit them to catherinej@bongarde.com. Wayne will try his best to answer as many of your questions as possible. We'll publish your questions and Wayne's answers in next Wednesday's SafetyXChange newsletter.

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