June 18, 2007

Hey, SafetyXChange members. We haven't talked in a while. But the lesson I'm going to relate to you about today is one worth waiting for. It's also real simple: If you got safety rules, enforce them. The case I dealt with the other day shows what can happen to an employer who lets workers get away with safety violations.

9:15 A.M.

"Stinkin' Red Sox lost again last night and now the Yankees are closing in."

I mull the sports papers with a scowl. I grew up in New Hampshire, a huge Sox fan. Yeah, I know we won in 2004. But one season doesn't erase a lifetime of disappointment and the memories of Bucky Dent and Aaron Boone.

The vibrating beeper snaps me out of it.

"What do you got, Donna?" [Editor's Note: As you may recall from previous episodes, Donna Tellow is Nick's Associate Area Director, or immediate supervisor.]

"It's bad, Nick. We got a fatality."

My heart sinks. The dreaded "f" word. Like most of the rest of the world, we OSHA people get so caught up in the day-to-day that we sometimes lose sight of what this job is all about. Lives. When one is lost, we take it as a personal failure.

"What happened?"

"The guy is 38 years old," Donna explains. "He's a construction worker with Ivan Ulooze Construction. They're putting on a new roof at the U.D. Mann High School. He was working on a scaffold and fell about 35 feet. By the time the EMT guys showed up, he was dead."

"How'd he fall?"

"That's all I know, Nick. Get down there and figure out what happened."

12:44 P.M.

I've been on the site a couple of hours and I'm getting a pretty good idea of what went wrong. The first thing that's clear is that this incident could and should have been prevented.

It's the on-site supervisor, a guy named Cy Burnett, who points it out. "Sir," he says to me, "I want you to know that our company had nothing to do with this unfortunate incident."

You talk about the wrong thing to say! I want to explode. But I keep my cool. "Really, Mr. Burnett?"

"Yes, sir," he replies. "The victim, may he rest in peace, didn't `tie off'; and he wasn't wearing fall arrest equipment."

I check it out and Burnett is right. The worker was working up on that roof without any protection. He was a fatality waiting to happen.

2:15 P.M.

I'm in the trailer, talking to Ivan Ulooze, the owner of the construction company. Burnett's there, too. So are a few of the other project officials.

"Gentlemen, it seems that this worker was working without proper fall protection," I begin. "As Mr. Burnett explained to me, he didn't tie off and wasn't using fall arrest equipment."

They all nod in somber agreement.

"Did you know about this?"

"Absolutely, Inspector O'Shay." It's Ulooze. "I want to point out that the company has a written policy that says all workers who work at heights must tie off and use proper PPE."

He hands me a document. The company's safety policy. He's gone to the trouble of highlighting the fall protection policy with a yellow marker.

"I see. But did you know that this worker wasn't following the policy," I ask.

Burnett is shaking his head up and down.

"Mr. Burnett, is there something you want to tell me?"

"Yes, sir." Burnett stands up, walks to a makeshift file cabinet and pulls out an accordion file. "Sir, I don't like to speak ill of any of our workers but this particular worker was what I would characterize as, well, somewhat disobedient."

"What do you mean, Mr. Burnett?"

"Well, sir, I mean that he knew all about the fall protection rules but deliberately ignored them."

"How do you know that?"

"Sir, I know that because I had spoken to him about not tying off and not wearing fall protection. More than once. In fact, half a dozen times."

I'm detecting what I think is a smirk on Burnett's face as he hands me the file.

"I have written documents of the warnings I personally delivered to him. As you can see, sir, there are six of them. The last one was just the day before yesterday."

Okay, so now I get it. I've heard it hundreds of times before. It was the victim's own fault for deliberately ignoring the rules. These guys think they've gotten themselves off the hook. But what they've actually done is handed me the legal case against them on a silver platter.

"So let me get this straight, Mr. Burnett. You knew the victim was going up there without any fall protection but you didn't do anything to stop him."

Burnett stammers. "But, but, I just told you that I did try to stop him!"

"Yeah, I know. You got a policy. But why didn't you enforce it?"

Ulooze chimes in: "Inspector O'Shay, Mr. Burnett just explained that he did enforce the policy. Several times. Just look at the warnings."

"Warnings. And what were the consequences of the worker's failure to heed those warnings, gentlemen? Did you ever actually discipline him?"

"Well, no, not exactly. . ."

Game, set, match.

The Lesson

Ivan Ulooze Construction was cited for more than a dozen serious OSHA violations, including failure to provide training and ensure the use of appropriate fall protection and was fined $185,000. Worse for the company, its name was plastered all over the local papers. Who knows how much business they lost as a result of the bad publicity.

Look, don't get me wrong. I derive no pleasure from issuing citations and handing out fines. I do it because I believe in what I'm doing. It's about accountability; most important, it's about the fact that by punishing those who don't obey the safety laws just maybe I'm making it less likely that incidents like this don't happen again. Not at Ulooze; not at any company.

And that willingness to punish is precisely the mentality employers need to adopt. What I'm saying is that there's more to compliance than just having a bunch of safety policies and providing workers appropriate safety equipment. Your legal duty is to enforce those policies. And enforcement means more than warnings and slaps on the wrist. When one of your workers disobeys a policy, you must impose discipline. Real discipline. Ulooze didn't; and because it didn't, a worker who might otherwise have been saved died needlessly.

In short, workers need to know that there will be consequences for committing safety violations. Otherwise, they'll stomp all over the rules. And employers who allow this to happen are basically acting as an accomplice to a health and safety violation.

Nick O'Shay
OSHA Inspector

THE CANADIAN PERSPECTIVE

Inspector O'Shay's lesson applies equally to Canadian employers. A company's failure to enforce its own safety policies against workers who commit infractions stand no chance of making out a due diligence defence.

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