The Cutting Edge™ - November 2003

Product & Engineering Standards

Reprinted with permission from the National Wooden Pallet and Container Association (NWPCA). For more information about this or other industry issues, contact NWPCA at 703/519-6104 or palletinfo@palletcentral.com, or visit the association’s website at www.palletcentral.com.

Why me? When the Occupational Safety and Health Administration (OSHA) comes looking for you, that may be your first response. In fact, there can be any number of triggering events. The most common types of inspections include:

• Employee Complaints (current or former workers—or employees of your outside contractors—call OSHA to report unsafe conditions that the employer refuses to fix and which expose individuals to safety or health hazards)
• Accident Investigations (fatalities, catastrophic accidents—which are coded as “FATCAT” in OSHA’s records system)
• “Site Specific Targeting” which selects individual worksites (other than construction), identified from previous years’ data, with a Lost Workday Injury and Illness (LWDII) rate of 14.0 or higher (the average general industry rate is 2.8); or a Days-Away-From-Work-Injury-Illness (DAFWII) rate at or above 9.0 (average case rate is 1.7). This category includes about 3,200 sites per year. If an area office completes all of these primary inspections and still has time left, it will move down the list to those establishments with LWDII rates of 8.0 and higher, or DAFWII rates of 4.0 and above. These are also correlated with SIFC Data Initiatives.
• Referrals
• Unprogrammed Inspections (e.g., triggered by an “Imminent Danger” observation, where an OSHA representative sees something in plain view and immediately comes on site to order corrective action and prevent bodily injury to workers)
• Special Emphasis Program

Here are some pointers on how to manage the situation once the OSHA Compliance Office (CO) gains access to the workplace, either through voluntary admission by the employer or after securing a warrant. The same general principles hold true for inspections conducted by representatives of state agencies in the 23 states that operate their own OSHA programs.

Step one is the opening conference. Both the employer and employees have the right to have a representative present, but OSHA will not delay commencement of an inspection for very long and will start the dance without you if you engage in obvious stalling tactics.

This is also an opportunity to brag about your safety program and performance history, and to show the mandatory records such as OSHA 300 log, the Hazard Communication Program and relevant mandatory training records and certifications. Because documentation is easy to cite if it is missing, this part of the inspection can set the tone for what follows part of the inspection can set the tone for what follows out in the plant. Before ever leaving your office, the CO will likely have formed his/her own impression as to whether you are careless or an employer who is making a genuine effort to promote a safe and healthful workplace.

It is procedure for OSHA to reveal the reason for the inspection before the “walkaround” starts. The nature of the inspection will often dictate whether it will be a “targeted” inspection or a “wall-to-wall” inspection. The former is limited in scope to the areas involved in the complaint, referral, etc. More often, the complete worksite will be fair game, and so the employer must be prepared to have every nook and cranny scrutinized in great detail…and probably videotaped too!

Because videotapes have audio tracks, everything you say in the presence of a camera toting CO will be captured as admissions by the company…as they say on TV, “everything you say can and will be used against you in a court of law.” Although OSHA will never give you the “Miranda” warning, it is true that both management and hourly workers have the right to remain silent. OSHA cannot coerce a statement or insist on taking a statement in private if the employee wants to have a supervisor present as a witness.

Whether taped or not, the employer’s representative who accompanies the CO on the walkaround inspection should take care not to make statements against interest since these can be used to increase the severity of a citation to the “willful” category (carrying maximum civil penalties of $70,000 per violation). Extreme caution is needed if the inspection is within the FATCAT classification, as such inspections can lead to criminal referrals if a fatality is involved and an agent of the company reveals prior knowledge of the conditions leading to the catastrophe.

There is also little to be gained by arguing with an inspector, although it is perfectly appropriate to question what abatement recommendations are offered (especially if they seem unrealistic), and to ask the CO to explain how he views the situations in terms of gravity (serious or “other-than-serious”) and negligence (what did you know and when did you know it). The best strategy is for the employer’s representative to do more listening than talking.

More tips on handling the walkaround inspection and the closing conference will be provided in future columns. In the meantime, stay safe and understand your rights!

Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA nationwide, and also provides safety training and consultation services. A regular PalletCentral columnist, Abrams can be reached at 301/595-3520 or via e-mail at safetylawyer@aol.com for more information. Go to www.safety-law.com for more information.

To view last month’s article, “How to Select and Buy a Previously Owned Dust Collector,” click here.