OSHA: tougher on lift truck violations
In my last blog I addressed under-ride, a particularly ugly and often fatal type of lift truck accident. I also told you that the House Education and Labor Committee would soon be delivering a full markup of the Protect America’s Workers Act of 2009 (S. 1580/H.R. 2067) to the Senate. This bill would attach criminal liability to employers whose failure to train lift truck operators resulted in such a fatality.
I know some of you might be rolling your eyes, having heard this kind of tough talk from OSHA before. You know that in recent years OSHA has taken a softer, more consultative approach to enforcement. I even blogged about the Voluntary Protection Program (VPP) which would eliminate the burden of routine OSHA inspections for employers who demonstrated that they have an exemplary safety and health program, have no ongoing health and safety enforcement actions, and have an injury and illness rate below the average rates for the industry.
More than 2,000 worksites have taken OSHA up on this deal. However, I also told you that the VPP did a poor job determining whether these sites were maintaining a safety record worthy of staying in the program. So why would OSHA do any better protecting workers and prosecuting employers with this new legislation?
Because there’s a new sheriff in town and he has a posse friendly to organized labor. Sure, card check is stalled for now, but don’t think it’s dead. And don’t be surprised if we see more criminal cases against the employers of dead lift truck operators.
Rod Smith, an attorney with the Denver law firm of Sherman & Howard LLC, told me that the current Democratic majority is lending a sympathetic ear to organized labor and that the number of cases referred by OSHA for criminal prosecution will soon be on the rise. As an example he cited the case of Tyson Foods, which recently accepted a $500,000 criminal conviction. Tyson pleaded guilty in U.S. District Court in Arkansas to willfully violating worker safety regulations that led to a worker’s death in its River Valley Animal Foods (RVAF) plant in Texarkana, Ark.
Then there’s the case of Xcel Energy, RPI Coating Inc. and two RPI executives, all of whom face criminal charges in the deaths of five workers in a 2007 fire inside a tunnel at a Colorado hydroelectric plant. The indictment alleges these parties knew about the danger of this situation and did nothing about it.
Not only will there be more emphasis on prosecution, but there will probably be less emphasis on collegiality, Smith believes.
“I don’t think they’ll do away with the VPP program, because people have such a big investment in it,” he told me. “But I do think there will be less emphasis on these softer alliances and partnerships OSHA has crafted with trade organizations.”
In fact, VPP managers are communicating more with the field about issues of particular concern. The following note went out recently, citing a deadly lift truck hazard:
“Recent OSHA enforcement activities, especially in refineries, have discovered multiple instances of improperly classified powered industrial trucks (forklifts) being operated in classified hazardous locations. This situation creates a potential fire/explosion hazard. This situation is not limited to refineries, but may also occur in other workplaces where flammable vapors and/or combustible dusts (such as but not limited to coal, wood, grain, paper, metals and others) are present.
“Please refer to 29 CFR 1910.178(c)(2) and also reference NFPA 505 for further guidance on this issue.
“Please note – although this issue has been evaluated during applicable VPP audits in the past, it will be addressed with more particular attention as part of all future VPP audits in OSHA Region VIII. Please be prepared.”
I think that last line says it all—for all of us.
Tom Andel
