I read with great interest Glenn Demby's recent article about the unpreventable employee misconduct defense against an OSHA citation. [Editor's Note: "Unpreventable Employee Misconduct: Is It a Defense Against Liability for an OSHA Violation," March 19, 2007]. I have used that defense twice in the past 10 years with 100% success. I decided to write this piece to give other employers advice about how to use the defense effectively.

The First Incident

Let me start by recounting the most recent incident. I work for a major construction company in the Northeast. Late last year, OSHA cited us for having a 4-foot opening in our roof perimeter protection. The roof was a steep slope, (greater than 4 feet vertical and 12 feet horizontal). This subjected the shingling crew to a fall hazard of approximately 12 feet.

The supervisor overseeing this phase of construction failed to notice the gap. This was due partly to inattention and partly to his position relative to the perimeter breach. In addition, each member of the crew violated established policy and training protocols by walking past the opening in the perimeter protection. The supervisor failed to enforce company policy against crew members who committed the violations. So there was enough misconduct to go around.

The OSHA inspector spotted the violation. During the post-inspection conference, he made it clear that OSHA was planning to go after the supervisor for letting the crew walk in an unsafe area without fall protection. In general, the actions and omissions of the supervisor (and other employees) are attributed to the employer.

Using the Defense

In preparation of an informal conference with OSHA, we found a legal case called Secretary of Labor vs. Kerns Brothers Tree Service, establishing a defense companies can use to avoid being held responsible for the misconduct of their supervisors and employees. [Editor's Note: The case comes from OSHRC - the Occupational Safety Health and Review Commission; and the docket number is 96-1719]. From reading the case, we learned that the employee misconduct defense applies if:

1. The actions of the supervisor/employee were contrary to documented company policy;
2. The supervisor/employee was adequately notified of the policy;
3. The employer took reasonable steps to discover violations of the policy; and
4. Violations were handled with documented and consistent discipline.

Going to an informal conference is like going to the proctologist. You really don't want to show them everything but you have to. We handed the OSHA representative a 2-inch-thick notebook which included supporting materials documenting that all of the above requirements applied to this case. Such materials included copies of all aspects of our safety program and photographs of the things we do right. All the documents were laid out in a tabbed notebook step by step in order of the four requirements of the employee misconduct defense.

Resolution: Upon seeing this evidence, OSHA dismissed the citation with no penalty. In fact, we even received an unexpected bonus: a compliment on our safety program from the OSHA Area Director.

Conclusion

Next week, I'll tell you about what happened in the second incident and draw some general lessons from both cases to help you use the unpreventable employee misconduct defense.

PLAY BALL!

Tony Conigliaro

Preventable Baseball Injuries

By Glenn Demby

It's Opening Day of the 2007 Major League Baseball season. Of the four major team sports in the U.S. - baseball, football, basketball and hockey - baseball is probably the safest to play. But no sport is completely devoid of hazards, let alone one whose game features projectiles hurtling at speeds approaching 100 miles per hour.

But all baseball injuries are not the same. The pulled groins, sore elbows, sprained ankles and the like are part of the game and almost impossible to prevent. But other injuries, especially those involving ball striking flesh, can be prevented with more protective equipment such as face masks, mouthguards and protective goggles.

The author John T. Reed has compiled a list of Major League Baseball players who suffered career ending or shortening injuries that such protective equipment would have prevented. The list includes:

Tony Conigliaro: Boston Red Sox outfielder whose career effectively ended after he was hit in the face by a Jack Hamilton pitch in August 1967.

Mickey Cochrane: Hall of Fame catcher for the Philadelphia Athletics who fractured his skull in three places after being hit by a bean ball thrown by pitcher Bump Hadley in 1937. That was the end of Cochrane's career. But he was lucky. Cochrane spent 10 days in the hospital and almost died.

Ray Chapman: Cleveland Indians' infielder who did die after being hit in the head by a pitch from Carl Mays in August 1920. It would take another four decades before Major Leaguers would be required to wear batting helmets.

Joe “Duckie” Medwick: St. Louis Cardinal Hall of Famer who was knocked unconscious by a Bob Bowman pitch in 1940.

Doug Griffin: Beaned by the last pitcher on earth you'd ever want to be beaned by: Nolan Ryan. Griffin was hospitalized but survived and returned to action after missing 51 games.  

Dickie Thon: Houston Astros' shortstop with great potential. But then he was hit in the temple by a Mike Torres pitch and was never the same.
 
Charlie Manuel: Current manager of the Philadelphia Phillies who survived two horrific beanings. In 1967, he was hit in the face by a pitch from Jerry Reuss. Manuel would later play in Japan and suffer a similar incident.

Matt Keough: Sometimes the pitcher is on the receiving end. In fact, you don't have to be standing on the pitcher's mound to get hit with a batted ball. Just ask A's pitcher Matt Keough who was hit in the head by a line drive while sitting in the dugout during a spring training game.

Dizzy Dean: The psychological after effects of being hit on a toe by a line drive in the 1937 All-Star Game caused the St. Louis Cardinals' pitcher to change his mechanics. Dean would blow out his arm as a result cutting short what looked like a slam dunk Hall of Fame career.
 
Herb Score: Another promising pitcher whose career was snuffed out after being struck by a batted ball. In 1957, Gil McDougald slammed a line drive off the right eye of the Indians' pitcher.

Bryce Florie: Red Sox pitcher hit in the eye by a 100-mph line drive in 2000. Florie was wearing contact lenses. The ball shattered the bones around his eye, knocked him unconscious, and broke his nose. A titanium plate was needed to replace the facial bones.

Source: http://www.johntreed.com/baseballsafety.html

MLB PREDICTIONS

Frustrated sports writer that I am, I can't resist the temptation to list my predictions for the 2007 MLB season.

NL East: Braves
NL Central: Astros
NL West: Dodgers
Wildcard: Phillies

AL East: Yankees
AL Central: White Sox
AL West: Angels
Wildcard: Red Sox

World Series: Dodgers v. White Sox.
Sox will win in 6.

I'll check back with you in October.

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