Trinity Yachts, LLC

Plain-English summary

A Trinity Yachts employee died after inhaling argon gas in an enclosed shipyard vent trunk. On second Commission remand, the judge reopened the record to hear from the human-resources administrator who had oriented the employee, who had difficulty reading and writing English. The judge found that reading general materials and an argon safety data sheet was not adequate training because the administrator was not trained on argon, the orientation materials did not teach job-specific precautions, and the employee's supervisor also misunderstood the gas's asphyxiation hazard. The confined-space hazard-training item was affirmed with a $4,500 penalty. The atmosphere-testing and mechanical-ventilation items remained vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.12(a)(1)(iii); 29 C.F.R. § 1915.12(d)(2)(ii); 29 C.F.R. § 1915.51(f)(1)
• Outcome: The training item and $4,500 penalty were affirmed; the atmosphere-testing and ventilation items were vacated.
• Key point: Reading general orientation materials is not enough when neither the presenter nor the supervisor can teach employees the specific asphyxiation hazards and safe-work precautions for argon.

Full text (OSHRC public release)

                                    United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                   1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v.
TRINITY YACHTS, LLC OSHRC DOCKET NO. 09-1123
And its Successors
Respondent.

APPEARANCES: Dolores G. Wolfe , Esquire Susan Fahey Desmond, Esquire
Office of the Solicitor Watkins, Lunlam, Winter & Stennis,
U.S. Department of Labor One Hancock Plaza
525 S. Griffin Street, Suite 501 Post Office Drawer 160
Dallas, Texas 75202 Gulfport, Mississppi 39502
For the Complainant. For the Respondent.

BEFORE: G. Marvin Bober,
Administrative Law Judge

     DECISION AND ORDER ON SECOND REMAND FROM COMMISSION

      This proceeding arises under the Occupational Safety and Health Act of 1970, as

amended, 29 U.S.C. § 651 et seq. (“the Act”) as a result of a fatality at the worksite of Trinity
Yachts (“Trinity” or “Respondent”) in New Orleans, Louisiana, when an employee fatally
inhaled argon gas. It is before this Court on a second remand from the Occupational Safety and
Health Review Commission (“the Commission’) following its review of a decision rendered by
this Court. On October 29, 2010, this Court issued its initial decision in this case. In that
decision, Citation 1, item 1 was vacated, while Citation 1, items 2 and 3 were affirmed. Finding
certain clerical errors, the Commission issued its first remand in this matter to enable this Court
to correct those errors. On February 22, 2011, this Court issued its second decision affirming
only Citation 1, item 2 which alleged that Trinity’s training program failed to ensure that
employees in an enclosed or confined space were trained to “[a]nticipate and be aware of the
hazards that may be faced during entry” as required by 29 CFR §1915.12(d)(2)(ii).
At the trial, Trinity called its human resources administrator to testify about the actions
she personally took to ensure that the decedent, who had trouble reading and writing English,
understood company policies and procedures. Finding the administrator’s testimony unnecessary,
this Court refused to allow her to testify. Trinity’s counsel concurred that the testimony was
unnecessary if the Court was otherwise satisfied that the facts provided by its proffered
testimony had already been established. Nonetheless, the item was affirmed because the Court
found that Trinity failed to establish that the decedent understood the risks associated with
working with argon gas and the requisite safety precautions that needed to be taken.
On review, the Commission found that this Court erred in concluding that the
administrator’s testimony was unnecessary to determine the sufficiency of the decedent’s
training. The Commission found that “because the present record suggests that the decedent had
difficulty with reading, the sufficiency of his training cannot be fully evaluated by only
considering Trinity’s written training materials and its safety manager’s general discussion of the
program.” Therefore, the Commission remanded this matter with directions to re-open the
record for the limited purpose of allowing the parties to adduce testimony from Trinity’s human
resources administrator, Julie Griffin, regarding the decedent’s training, and to provide the
Secretary with an opportunity to respond to this evidence. The Commission also instructed this
Court to reconsider its entire decision in light of this new evidence.
Pursuant to the Commission’s instruction, the trial was reopened for the limited purpose
of allowing Trinity to adduce the testimony of its human resources administrator. The reopened
trial was held in New Orleans, Louisiana on September 8, 2011.

                           Testimony of Julie Griffin
    Ms. Julie Griffin works at the human resources department of Trinity Yachts. Her

responsibilities include hiring, firing, interviewing prospective employees, payroll and
occasionally issuing company safety policies. (Tr. 559).
Ms. Griffin testified that, after Hurricane Katrina, she became responsible for
conducting employee orientations. (Tr. 560). The orientation consisted of having the new
employee watch a video (Ex. R-18) and take a test. (Tr. 561). Afterwards, she would go over the
test with the employee and talk to him about company procedures. (Tr. 561).
Ms. Griffin testified that the decedent started and stopped employment with Trinity on
several occasions. She specifically recalled four times that he was hired. On each occasion the
decedent was required to undergo the orientation procedure. (Tr. 561, 569). He previously was
required to view the orientation video when first hired, and each time he was rehired. (Tr. 569).
After the last time he was hired, the decedent watched the video and Ms. Griffin administered a
test that covered the material he just watched. Because the decedent had difficulty reading and
writing English, Ms. Griffin read the questions to him. (Tr. 571).
Ms. Griffin testified that they discussed everything on the safety orientation check list.
(Tr. 570, Ex. R-2). However, because he had difficulty reading and writing, he didn’t check the
items on the page, so they discussed the items and he signed to confirm that they went over them.
(Tr. 570). The decedent was also given a handbook (Ex. R-22), which she read to him. (Tr. 571)
The reading took approximately 45 minutes. (Tr. 585). Although this was the first time she
personally read the handbook to him, he became upset because it had been read to him before
and he asserted that he knew everything in it. (Tr. 571, 585). Ms. Griffin informed the decedent
that she had to read it to him every time he was rehired. (Tr. 572).
Ms. Griffin also went over the Material Safety Data Sheet (MSDS) for argon with the
decedent. (Tr. 579). She could not remember how many MSDS she read to the decedent and
could remember only the MSDS for argon. (Tr. 586-589). Ms. Griffin admitted that she is not a
welder, never worked with argon, and was not trained in the hazards of working with argon. (Tr.
583). She was aware that argon is a type of welding gas and that it is odorless. (Tr. 583). She also
was aware that argon sinks to the ground because she read about it in safety books found in the
office. (Tr. 584). She could not remember if the MSDS for argon addressed drowsiness or
whether it addressed whether argon would cause burning if it came into contact with the eyes.
(Tr. 594).
The decedent told Ms. Griffin that he knew what to do and asked her to let him return to
work. She replied that she couldn’t let him go back to work without finishing the orientation. (Tr.
579). Ms. Griffin testified that the decedent understood the handbook section dealing with
confined spaces. She also read the section involving the welding and cutting practices of Trinity
and the section involving blowers and ventilation. Again, the decedent asserted that he knew the
material and that the orientation was not necessary. (Tr. 581). When asked, the decedent stated
that he didn’t have any questions. He was told that if any questions did arise, he should contact
his foreman or safety official. (Tr. 582).
Ms. Griffin testified that she learned what to teach by being around the shipyard “and
watching the video and stuff: (Tr. 600). She testified that she was not trained to perform training,
and stressed that she was not conducting training. Rather she characterized her job as
“orienting.” (Tr. 600). She explained that training entails taking someone and leading them. She
was just reading procedures and policies. (Tr. 600).

                                   Discussion
    The cited standard provides:
   §1915.12 Precautions and the order of testing before entering confined and
   enclosed spaces and other dangerous atmospheres.
                         *        *        *
     (d) Training of employees entering confined and enclosed spaces or other
   dangerous atmospheres.
                         *        *        *
     (2) The employer shall ensure that each employee who enters a confined space,
   enclosed space, or other areas with dangerous atmospheres is trained to:
                         *        *        *
     (ii) Anticipate and be aware of the hazards that may be faced during
   entry;

   The citation alleges that:

    The employee working in the starboard side vent trunk on TO48 was not trained
   in the hazards associated with working in the enclosed space with argon. This
   condition exposed the employee to an asphyxiation hazard.

     To comply with the cited standard, Respondent was obligated to train the

decedent to “[a]nticipate and be aware of the hazards that may be faced during entry” into
the starboard side vent trunk due to employee exposure to argon gas.
The hazards associated with argon gas as set forth in its Material Safety Data Sheet
(MSDS) include:
 In high concentrations, may cause asphyxiation;
 Gas/vapour [is] heavier than air. May accumulate in confined
spaces, particularly at or below ground level;
 Exposure to fire may cause containers to rupture/explode;
 In confined space use self-contained breathing apparatus;
 Accidental Release Measures: wear self-contained breathing
apparatus when entering area unless atmosphere is proved to be
safe;
 Handling: keep container below 50C in well ventilated area; and
 Compressed gas. Colourless. No odour warning properties.
 The testimony of Ms. Griffin establishes that she read both the company safety
handbook and the MSDS for argon to the decedent, had him watch an orientation video, and had
him take a test on its contents. Respondent asserts that these steps qualified as training sufficient
to satisfy the requirements of the cited standard that employees be trained to “[a]nticipate and be
aware of the hazards that may be faced during entry.” This Court disagrees.
In the Preamble to the Shipyard standards, the Secretary set forth her view of a proper
training program:
The primary objective of final §1915.12(d) is to ensure that employees will be
familiar with the subjects listed under paragraphs (d)(1) through (d)(3). There
may be wide variations in the combinations of classroom and on-the-job training
that may be necessary for different work sites, configurations, and control
measures. On the other hand, OSHA shares IBEW's concern that some employers
might try to comply with the standard through simple briefings that impart little
knowledge to employees. In enforcing final revised Subpart B, the Agency will
determine whether employees have learned the subject matter addressed by the
standard by interviewing employees and reviewing the employer's procedures for
dealing with communicating hazard information and ensuring employees have the
skills necessary to do their jobs.

59 FR 37816, 37839 (1994)(emphasis added).
The Preamble makes it clear that effective training encompasses a combination of
classroom and on-the-job training. However, the evidence demonstrates that Trinity sought to
comply with the training standard through the type of “simple briefings that impart little
knowledge to employees” that was warned against in the Preamble.
The only thing that Trinity points to that could constitute class room training was the
viewing of the orientation video by the decedent and Ms. Griffin’s reading of the safety
handbook and the MSDS to the decedent. The evidence demonstrates that neither the training
video nor the company safety handbook specifically address the hazards of argon.
Respondent points to the orientation video as an important part of its orientation/training
process. The video is titled “Shipyard Safety Orientation.” This video gives an overview of
several general safety topics, such as fall protection, confined spaces, chemical hazards and
personal protective equipment. At the 27 minute mark (27:00), the video explains how to obtain
information about chemicals that may be used by employees. For example, it explains the nature
of an MSDS. At 27:30, the video states that you “will be” trained on how to read an MSDS. This
demonstrates that the video was intended only to make employees aware the basics of an MSDS,
not train them on how to read them. Immediately thereafter it states that if the employee has any
questions about a hazardous substance, he should discuss it with his supervisor or safety
department.
That the video was intended only as an overview of the hazards to be found in shipyards
can be found at time mark 37:14 where the video states that “You are not permitted to work in a
confined space or enclosed space until you have received additional training.” At 34:48 the video
states that, if you feel dizziness or nausea when working in a confined or enclosed space, you
should exit the space immediately and report your condition to your supervisor. However, as
found in this Court’s earlier decision, the deceased’s supervisor, Mr. Nguyen, who was largely
unknowledgeable about the nature and dangers of argon gas, only advised employees who
became dizzy after exposure to splash water on their face. (Tr. 130-131, 154).
Finally, the video itself recognizes that it constitutes only the beginning of the necessary
training. At 35:20 it states that training does not mean only attending the training sessions, but
also learning what is being taught and proving it by taking tests. The video then states that,
depending on the job assignment, training might include various topics including hazard
communication and confined space entry.
Although Ms. Griffin read the MSDS1 for argon to the deceased, that document simply
points out the hazards in general terms and does not instruct employees on the skills necessary to
perform their job in the presence of those hazards. To compensate for the decedent’s difficulty in
reading and writing English, Trinity had Ms. Griffin read the handbook and MSDS to him. This
material is part of the orientation process and is provided to all employees. However, Ms. Griffin
testified that the decedent resented having the material read to him because he had heard it
before. (Tr. 579, 581). The decedent’s attitude toward the orientation was hardly an environment
conducive to effective training. Also, as noted, Respondent’s safety handbook did not specifically

1
The Secretary points out that the MSDS introduced at the trial was obtained from the internet and was not the one
used by Trinity during its orientation program, (Tr. 591, 593, 586-587), and that Respondent did not introduce the
version used during the orientation. However, under 29 C.F.R. §1910.1200(b(3)(ii), employers shall maintain any
MSDS that is “received with incoming shipments of hazardous chemicals.”. While there is no set format for an
MSDS, requirements for an MSDS are set forth at 29 C.F.R. §1910.1200(g). For example, an MSDS is required to
include the physical hazards of the hazardous chemical, including the potential for fire, explosion, and reactivity; the
health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions
which are generally recognized as being aggravated by exposure to the chemical. Although the MSDS for argon
used by Trinity was not introduced in the record, Respondent was not cited for, and there is no evidence to suggest
that its MSDS for argon fell short of OSHA requirements.
address the hazards associated with argon. After the orientation, Ms. Griffin had the deceased
sign the “Safety Orientation Checklist.” (Ex. R-2). Although the checklist was signed, none of
the items were checked off. Ms. Griffin testified that the items were not checked because the
deceased could not read or write. (Tr. 598-599). She failed to explain why he could not check off
the items as she read the checklist to him, as she did the various safety documents. In any event,
none of the items on the checklist pertained specifically to argon.
An employer's instructions must be "specific enough to advise employees of the hazards
associated with their work and the ways to avoid them," O'Brien Concrete Pumping, 18 BNA
OSHC 2059, 2061(No. 98-0471, 2000); El Paso Crane and Rigging Co., 16 BNA OSHC 1419,
1425 nn. 6 & 7 (No. 90-1106, 1993). Trinity’s instructions to the deceased fell short of this
standard.
Ms. Griffin admitted that she was not trained about argon and that everything she knew
about argon was picked up by being around the shipyard “and watching the video and stuff.” (Tr.
600). She was not a welder, never worked with argon, and had no chemical background. (Tr.
583). She did not know if the decedent would be working with pure argon, or some mixture. (Tr.
592-593). She defined training as taking someone and leading them and admitted that she was
not trained to perform training. (Tr. 600). Indeed, she denied that she was training the decedent,
but rather characterized her role as “orienting”. (Tr. 600).
Although Trinity was not cited for violating C.F.R. §1915.12(d)(5), this standard
requires the employer to certify that the employee was trained. According to the standard, the
certification must contain “the employee's name, the name of the certifier, and the date(s) of the
certification.” 29 C.F.R. §1915.12(d)(5)(i). In the Preamble the Secretary noted that:
In paragraph (d)(5), OSHA is requiring that the employer certify that the
training required by paragraphs (d)(1) through (d)(4) has been accomplished. The
rule also lists the information that must be provided on the certification: the
employee's name, the name of the trainer, and the date or dates of the training.

59 FR at 37839 (emphasis added).
By Ms. Griffin’s own admission, during the orientation, the decedent was never
instructed by a “trainer.”
Ms. Griffin testified that she told the decedent that if he had any further questions, he
should direct them to his supervisor. (Tr. 582). However, the evidence demonstrates that Trinity’s
supervisors themselves were not sufficiently trained to render on-the-job training. As this Court
discussed at length in its earlier decision, the evidence established that the decedent’s supervisor
was seriously uninformed about many of the aspects of argon. For example, while the decedent’s
supervisor recognized that argon could make a person sleepy, he thought the hazard could be
alleviated by having the employee splash water on his face. He expressed no awareness that this
“sleepiness” was caused by oxygen deprivation, requiring immediate exit from the enclosed
space. (Tr. 130-131). Therefore, rather than warn employees of the potential for argon
asphyxiation, he testified that he would tell employees to wash up if they became sleepy. (Tr.
154). The supervisor’s instructions failed to imbue employees with the sense of urgency
necessary for them to protect themselves in the face of potential argon asphyxiation. See,
Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2016 (No. 90-2668, 1992). Certainly, a
supervisor who is uninformed about the hazards of a substance is in no position to provide
effective on-the-job training to his employees. Also, the two employees who entered the vent
trunk to rescue the deceased were not wearing airline respirators. (Tr. 372) Respondent’s safety
officer, John McFarland, explained that they do not have such respirators because there is no area
that requires them. (Tr. 372) Again, this demonstrates the general lack of training on the hazards
of argon gas and the proper methods of working safely around it.
To establish noncompliance with a training standard, the Secretary must show that the
cited employer failed to provide the instructions that a reasonably prudent employer would have
given in the same circumstances. N & N Contractors, Inc. 18 BNA OSHC 2121, 2126 (No. 96-
0606, 2000); See El Paso Crane and Rigging Co., 16 BNA OSHC at 1424. If the employer
rebuts the allegation of a training violation "by showing that it has provided the type of training
at issue, the burden shifts to the Secretary to show some deficiency in the training provided." N
& N Contractors, Inc. 18 BNA OSHC at 2126-7; American Sterilizer Co., 18 BNA OSHC 1082,
1086 (No. 91-2494, 1997). The Secretary established that Trinity’s “training” of the deceased
was deficient. To satisfy its duty to train the decedent Trinity had an untrained administrator,
largely uninformed about the hazards of argon, conduct an orientation by showing a video and
reading prepared materials that did not specifically address the recognition and avoidance of
hazards associated with argon. If the decedent had any questions, he could not be expected to
have them answered by the administrator who, by her own admission was not a trainer and
whose only knowledge about argon came from being around the shipyard and reading the same
materials provided to the decedent. Rather, he was to take his questions to his supervisor, who
himself demonstrated a severely limited knowledge about argon and its potential effects.
While there is nothing that prohibits an employer from conducting training during the
orientation process, the orientation must be sufficiently specific to train the employee in the
recognition and avoidance of unsafe conditions encountered on the job. E.g. Danis Shook, Joint
Venture XXV, 19 BNA OSHC 1497, 1500 (No. 98-1192, 2001), aff’d 319 F.3d 805 (6th Cir.
2003); Valley Interior Systems, Inc. 21 BNA OSHC 2224, 2229 (No. 06-1395, 2007), aff’d 288
Fed. Appx. 238 (6th Cir. 2008); Phillips Getschow Co., 20 BNA OSHC 1479, 1481 (No. 02-
0529, 2003). The evidence demonstrates that Trinity’s efforts fell short of this standard.
Accordingly, Citation 1, Item 1 for a violation of 29 CFR §1915.12(d)(2)(ii) is affirmed.
In assessing penalties, the Commission must give due consideration to the employer’s
prior history and good faith, the size of the employer’s business, and the gravity of the cited
violations. Section 17(j) of the Act, 29 U.S.C. §666(j); S&G Packaging Co., 19 BNA OSHC
1503, 1509 (No. 98-1107, 2001). For reasons this Court set forth in the earlier decision, this
Court finds that the Secretary properly considered the statutory factors and that the proposed
penalty of $4500 is appropriate.
Items 1 and 3
In its Order of Remand, the Commission directed this Court to reconsider its entire
decision in light of the new evidence presented by Trinity’s human resources director.
Citation 1, Item 1, as amended alleges that Trinity violated 29 CFR §1915.12(a)(1)(iii)
on the grounds that:
The employer did not ensure that the starboard vent trunk space on the TO48 hull
was visually inspected and tested by a competent person to determine the
atmosphere’s oxygen content prior to the employee entering the space. The
starboard vent trunk on the TO48 hull contained argon. This condition exposed
the employee to an asphyxiation hazard.

    Citation 1 Item 3 alleges that Respondent violated 29 CFR §1915.51(f)(1) on the grounds

that:
The employer failed to ensure that mechanical ventilation was being used in the
enclosed starboard vent trunk on the TO48 hull. This condition exposed the
employee to an asphyxiation hazard.

    In the corrected decision in this matter, dated February 22, 2011, this Court vacated both

Items 1 and 3. This Court has reconsidered its disposition in light of the new evidence presented
in this trial and finds that none of the evidence presented was relevant to either of these two
items. Therefore, this Court finds nothing in the record to warrant alteration of that disposition.

                                   ORDER


    Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that

(1) Citation 1, item 1 for a violation of 29 CFR §1915.12(a)(1)(iii) is VACATED;
(2) Citation 1, item 2 for a violation of 29 CFR §1915.12(d)(2)(ii) is AFFIRMED and a penalty
of $4500 is ASSESSED;
(3) Citation 1, item 3 for a violation of 29 CFR §1915.51(f)(1) is VACATED.

SO ORDERED.

                                                   __/s/____________________________
                                                    The Honorable G. Marvin Bober
                                                          U.S. OSHRC Judge

Dated: April 2, 2012
Washington, D.C.