October 27, 2020

Volume X, Number 301

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October 27, 2020

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October 26, 2020

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Occupational Safety and Health Review Commission Issues Spate of Pro-Employer Decisions

Last week, the Occupational Safety and Health Review Commission (OSHRC), a 3-Commisioner panel appointed by the President and confirmed by the Senate which hears appeals of contested OSHA cases, issued two decisions vacating OSHA’s citations and one decision reclassifying a willful violation to a serious violation and reducing the penalty from $49,000 to just $3500. These decisions signal a trend toward holding OSHA and the Department of Labor accountable for the citations they issue to employers for alleged safety and health violations. The three decisions all involve citations for machine guarding, which is a common hazard cited by OSHA in manufacturing and other industries. All three decisions were unanimous, which is significant given the makeup of OSHRC—two pro-employer Commissioners (Sullivan and Leihow) and one pro-employee Commissioner (Atwood).

In Aerospace Testing Alliance, the tip of an employee’s finger was crushed while operating a power shear in the metal shop after he removed a glove and circumvented a guard by placing his finger underneath the guard and piston on tip of the piece of metal he was cutting. The Commission overturned the ALJ’s decision upholding the citation, finding that the guard itself was compliant in the machine’s normal operation and that it was not reasonably predictable that the operator would circumvent the guard. Thus, the Commission concluded there was no violative condition given the manner in which the machine functions and how it is operated by the employees.

In Wayne Farms, an employee was injured when he was pulled into a poultry breading machine when he lifted the hopper’s metal gate and reached inside the machine while it was running. The Commission upheld the ALJ’s decision to vacate the citation on the same grounds as in Aerospace Testing Alliance. Specifically, the Commission found that the machine guarding was sufficient in the normal operation of the machine, but the employee bypassing the guard was not reasonably predictable and thus there was no noncompliance condition during the normal operation and normal job tasks related to that machine.

Finally, in Dover High Performance Plastic, Inc., OSHA cited the company with a willful machine guarding violation for allowing employees to operate lathes and mills with the doors either opened or removed. The Commission upheld the citation as to the lathes and not the mills, but reclassified the violation from willful to serious. The Commission found that the company demonstrated good faith by reprogramming the lathes following a 2012 accident which eliminated the most obvious aspect of the hazard—that an employee could be injured by the component of the lathe that begins to move when the production cycle automatically commences. Because the Commission found no violation with respect to the mill equipment and found good faith with respect to the lathes, it reduced the original penalty from $49,000 to $3,500.

OSHA serves and important role in helping protect America’s workforce by overseeing that employers provide a safe and healthful working environment to their employees. However, the agency is not infallible. As is often the case, particularly when workplace accidents occur, OSHA will issue citations to employers for alleged safety and health violations. But, as demonstrated by these three recent decisions, sometimes an accident really is just that and an employer is otherwise meeting its legal obligations.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 273
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About this Author

Melanie L. Paul Trial Attorney Jackson Lewis Atlanta, GA
Of Counsel

Melanie L. Paul is Of Counsel in the Atlanta, Georgia office of Jackson Lewis P.C.  Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade. 

During Ms. Paul’s time with the DOL, she regularly appeared at hearings and trials before federal administrative tribunals and federal district courts throughout the southeastern United States in matters of Occupational Safety and Health (OSHA) law, Mine...

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