THE CANADIAN PERSPECTIVE

The Canadian system works the same way: If an industry standard contradicts an OHS regulation, the latter prevails. Nick's angry reaction is just what a Canadian employer can expect if it tries to debate the merits of an OHS standard with an inspector.

One part of the story that doesn't apply to Canada: The group lockout rules. They differ from province to province.

POINT/COUNTERPOINT

Nick O'Shay Faces His Critics

Dear Inspector O'Shay,

I have been in the safety business for nearly 30 years, and I can tell you this: A safety professional's work life is challenging enough without your throwing highly combustible liquids onto a fire. You see, I do not particularly care if I "tick off the OSHA inspector" right now, Inspector O'Shay, especially when he is so unprofessional as to use a valuable publication like SafetyXChange to vent his spleen. Let's examine your threatening tirade:

"I'm feeling kind and gentle. That should be good news for the employer I'm on my way to see."  What would have happened if "Mrs. O" had gotten angry with you that morning and got you "ticked off" before you even walked in the door at Pitts? You would probably have stuck them with a $70,000 per exposure Willful Violation. You could have, you know. How is that? Well, allow me to continue to quote you:

"A few years ago, I inspected the place (Pitts). The place was squeaky clean." From this statement, the reader could infer that you inspected the entire facility and at the time of the initial inspection:

1. Pitts' safety program and behaviors were fully compliant. "Squeaky clean"
2. As a consequence of "A", Pitts knew the LOTO rules and how to comply with them and indeed was in compliance with them. "Squeaky clean"
3. Or you performed a shoddy inspection and did not even bother to check their LOTO program.  (Kind of makes us wonder about that "Squeaky clean.")

There is your Willful, Mr. O'Shay, but I am sure you knew that as well because, "when it involves LOTO.  I've seen too many machine accidents in my time."  But the willful violation is not Pitts', Mr. O'Shay, it is yours. Either you willfully violated the Safety Professional's code of ethics by turning a blind eye the first time (we can only wonder why) or you just are not with the program in your own organization.

In his comments to area professionals some years back, former Assistant Secretary of Labor for Occupational Safety, John Henshaw, said the following: "There are three groups of employers out there right now. The top 10% are doing it right and are interested in working safely.  They have or want to be VPP, they build a safety culture through self audits, up to date maintenance and training, rewarding good safety performance, and remediating their own offenders. I am not going to bother them. Why should I? There is also a middle 80% who want to do the right thing but do not know how. My mission is to do whatever I can to help them build and maintain a positive safety program and attitude. Finally, there is the bottom 10% who refuse to make any effort to work safely. They openly defy attempts to force them to protect their workers and become compliant. My mission is to run them out of business before they can hurt anyone else."

You did not fine Pitts because of a violation of federal law that could and probably would have resulted in death or serious injury. No, you cited them because one person in their organization, who may have been having a bad day personally, "ticked you off."

Finally, I think you should forward your article to the Justice Department. Unless you tape recorded those comments allegedly made by Mr. Sitania, both he and his company have a good case for libel. It also throws into question the merits of the citation and the merits of any past citations you may have issued out of pique.

Very truly yours,

Name and Company Withheld at Author's Request

NICK'S REPLY

Dear Sir:

Thanks to SafetyXChange for giving me a chance to answer this letter not only to defend my personal reputation but to explain to the guy who wrote it and to other SafetyXChange readers how OSHA enforcement works.

First, I want you folks to understand that even though I'm a fictional character, my adventures are all based on actual cases. They come from:

1. Interviews by my ghost writer with actual OSHA inspectors;
2. Cited cases; and/or
3. A combination of both.

This story of the Pitts plant is of the c. variety. U.R.D. Pitts and Lou Sitania are made up names as are some of the other extraneous details of the story, like the Valentine's Day flowers for Mrs. O'Shay. But one thing that's not made up is the part about employers thinking that all they got to do is follow industry standards and not worry about OSHA. Inspectors told my ghost writer about this. The group LOTO example comes from an OSHRC case, Sec. of Labor v. Exelon Generating Corp., OSHRC Docket No. 00-1198, April 6, 2005.

Let's now talk about my previous inspection of the Pitts place. With all due respect, your attacking me for finding Pitts "squeaky clean" is unfair. After all, how do you know that:

• Pitts was using the same group LOTO back then when I first inspected the place. Maybe they were doing it right and changed the practice later.
• The scope of the inspection wasn't limited to something non-machine safety related. Remember, sir, that OSHA inspectors don't automatically look at LOTO any time they check out a place. In fact, it might be against the law for me to poke around machines when a programmed inspection addresses, say, eyewash stations or something else unrelated to LOTO.

Let's now talk about the not ticking off an OSHA inspector point. You guys gotta realize that we OSHA inspectors got a lot of leeway. The leeway isn't in pointing outa violation. If me or any other OSHA inspector notices a problem, especially one as serious as LOTO, and don't point it out to the employer, we're not doing our job and deserve to be fired.

The leeway kicks in after we spot the problem. We don't necessarily have to issue a citation just because we see a violation. We can and often do give the employer a chance to fix the problem without a fine. This is especially true if the problem is readily correctable and the employer is cooperative. I thought this might be the case with Pitts. But when the plant director, Mr. Sitania, started spouting off about the OSHA standard's being unrealistic, I could see that I wasn't likely to get the cooperation I wanted.

And, yes, somebody who ticks me off is more likely to get a citation than somebody who demonstrates remorse and cooperation. It's the same with other OSHA inspectors. I admit that it would be better if we didn't let our emotions dictate whether to issue a citation. But we're only human.

So, it's not about me. It's about the process. At the end of the day, I wanted to let the SafetyXChange members know that industry standards aren't a substitute for OSHA. If you're not doing it the OSHA way, you're breaking the law. And if you cop an attitude and debate an OSHA inspector on the merits of the standard, you're increasing your odds of being cited for not following the OSHA standard.

Sincerely yours,

Nick O'Shay

OSHA, CSHO