Furmanite America, Inc.
Facility work-rule violation affirmed, training items vacated
Apply this to your situation
This order from 2014 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Furmanite America installed an isolation plug in a pipeline at a process facility. An employee who was not trained or assigned to that service line attempted to remove the plug, which was forced from the pipe by built-up pressure and caused a serious head injury. The judge vacated the training item because the employee had been explicitly told not to touch the plug and a reasonably prudent employer was not required to train him to perform work outside his assigned duties. The related training-documentation item was also vacated because the cited plug-removal training was not required and OSHA could not expand the allegation after trial to different orientation records. A third item was affirmed because the company did not ensure that its supervisors followed the facility's safe-work-permit rules before installing or removing the plug. The judge assessed a $6,300 penalty for that serious violation.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.119(h)(3)(i); 29 C.F.R. § 1910.119(h)(3)(iii); 29 C.F.R. § 1910.119(h)(3)(iv)
- Outcome: Training and training-record items vacated; facility safety-rule item affirmed as serious; $6,300 penalty assessed.
- Key point: An employer need not train an employee to perform expressly excluded work, but it must ensure that contract employees follow the host facility's safety rules.
Full text (OSHRC public release)
Some personal identifiers have been redacted for privacy purposes
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant, OSHRC Docket No. 13-0307
v.
FURMANITE AMERICA, INC.,
Respondent.
Appearances:
Aaron J. Rittmaster, Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City,
Missouri,
For Complainant
Marc A. Young, Esq. & Bryan P. Marshall, Esq., Cokinos, Bosien & Young, San Antonio, Texas,
For Respondent
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
I. Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 659(c) (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted
an inspection of Furmanite America, Inc. (“Respondent”) that began on August 17, 2012, at
Respondent’s worksite in Beatrice, Nebraska. As a result, OSHA issued a Citation and
Notification of Penalty (“Citation”) to Respondent alleging three serious violations with total
proposed penalties of $21,000.00. Respondent timely contested the Citation. The trial took
place on February 19–20, 2014, in Omaha, Nebraska. Both parties timely submitted post-trial
briefs.
II. Stipulation
The parties stipulated that jurisdiction of this action is conferred upon the Commission by
section 10(c) of the Act (29 U.S.C. § 651, et seq.). (Compl’t Br. at 1; Resp’t Br. at 1).
III. Employer Engaged in Interstate Commerce
Respondent admits that it is an employer engaged in a business and industry affecting
interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). (Resp’t
Br. at 1). Slingluff v. OSHRC, 425 F.3d 861, 866–67 (10th Cir. 2005).
IV. Factual Background
Four witnesses testified at trial: (1) Brian Elmore, OSHA Compliance Safety and Health
Officer (“CSHO”); (2) Craig Olson, U.S. Technical Support Director for Respondent; (3) Mike
Struble, a supervisor for Respondent; and (4) Thomas Scott, proposed expert for Respondent.1
Respondent is a corporation with its principal office in Houston, Texas, and, as is
relevant to the instant matter, performed work at a Koch Industries facility in Beatrice, Nebraska.
Koch Industries contracted with a company called Cust-O-Fab, who in turn, contracted with
Respondent to perform services on pipelines within the Koch Industries’ facility. Respondent
provides sixteen different services or “lines”, as it refers to them. (Tr. 171). Each of these lines
is comprised of crew members that have been trained and tested in that particular discipline. (Tr.
171–172). Some of the crew members are trained in multiple lines, and, based on their
respective amount of experience, may be designated as a crew lead. (Tr. 172, 183, 193).
One of these lines involves the installation of isolation plugs (also referred to as
mechanical plugs) into pipelines. (Tr. 156). These plugs serve as a barrier between flammable
gases in the pipelines and hot work, such as welding. (Tr. 163, 167–68, 201; Ex. C-6). The plug
- After voir dire, Respondent withdrew Mr. Scott as an expert in this matter. (Tr. 258).
2has a series of bolts that are tightened in order to expand a two-part rubber seal that presses
outward against the pipe. (Tr. 156, 161; Exs. C-4, C-6). Once the rings are expanded, the plug is
filled with water and pressurized by bleeding off the air within the plug. (Tr. 161–63, 203). A
through-port is installed and connected to a hose, which is placed in a bucket of water
approximately 35 to 50 feet away. (Tr. 165–66, 203–204, 208–209; Ex. C-4). The purpose of
the hose and bucket is to detect the accumulation of pressure behind the plug, which results from
hydrocarbons being released from the pipe due to the presence of heat. (Tr. 208). If there is
pressure build-up, the hot work is supposed to be stopped by the individual monitoring the plug
and will not recommence until the pressure is reduced. (Tr. 209–212). The plug also has a
gauge that measures the pressure of the water in between the rubber seals. (Tr. 204–205; Ex. C-
7). As was the case here, improper installation and/or handling of the plug can result in serious
injuries. (Tr. 58–59, 79).
On August 17, 2012, [redacted], a team lead for the bolting crew, received head injuries
when he attempted to remove an isolation plug from an eight-inch-wide section of vertical pipe.
(Tr. 59–60). A build-up of pressure occurred behind the plug, which caused it to fire out of the
pipe and strike [redacted] in the head. (Id.). [redacted] was neither trained in that particular
service line, nor was there any indication that he had ever performed this type of work prior to
the accident. (Tr. 59, 92, 173–74, 181, 212). In fact, during a face-to-face meeting with Craig
Olson, [redacted] was specifically told “not to touch the [expletive deleted] plug.” (Tr. 175).
Olson also told both [redacted] and Matt Crosby, both of whom did not testify, that Mike Struble
was coming to the worksite in order to remove the plug. (Tr. 175). Olson’s instructions went
unheeded.
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Struble, who had extensive training and practical experience installing plugs, had come to
the worksite approximately one week before the incident to install the plug in question. (Tr.
199). Prior to installing the plug, Struble attempted to obtain a safe work permit from a Koch
Industries representative. (Tr. 210, 218). Struble testified that the representative told him that a
permit had already been issued to Cust-O-Fab and that he should sign onto that permit. (Tr. 210,
218). This was unusual because Struble had previously worked on Koch Industries projects and
was always required to get his own permit for the installation of isolation plugs. (Tr. 220).
Nevertheless, Struble testified that he signed off on Cust-O-Fab’s permit and indicated the work
that he was going to perform. (Tr. 219). The only safe work permit submitted into evidence
does not contain the signature of either [redacted] or Struble, nor does it contain specific
information as to the work Respondent was to perform. (Ex. R-6).
Through a media report, CSHO Elmore was notified that there was an accident at the
Koch Industries facility. (Tr. 28–29). He began his inspection of the facility the next day. The
inspection resulted in the following citation items.
V. Applicable Law
To establish a prima facie violation of section 5(a)(2) of the Act, the Secretary must
prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated;
(3) one or more of the employees had access to the cited condition; and (4) the employer knew,
or with the exercise of reasonable diligence could have known, of the violative condition. Ormet
Corp., 14 BNA OSHC 2134 (No. 85-0531, 1991).
A violation is classified as serious under the Act if “there is substantial probability that
death or serious physical harm could result.” 29 U.S.C. § 666(k). Commission precedent
requires a finding that “a serious injury is the likely result if an accident does occur.” Mosser
4
Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation omitted); see Omaha
Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 784 (8th Cir. 2002). Complainant does not
need to show there was a substantial probability that an accident would occur; he need only show
that if an accident did occur, serious physical harm could result. Id.
As part of the Court’s Briefing Order, the Court directed the parties to address the test for
analyzing training violations discussed in Compass Environmental v. Occupational Safety and
Health Review Commission, 663 F.3d 1164 (10th Cir. 2011). In Compass, the Tenth Circuit
addressed the propriety of the Commission’s training-specific test to establish a violation of 29
C.F.R. § 1926.21(b)(2). Compass, 663 F.3d at 1168. In order to prove a violation of a training
standard, the Commission held that “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.” Id. (citing N & N Contractors, Inc., 18 BNA OSHC 2121, 2125 (No. 96-0606,
2000)). Ultimately, the Tenth Circuit found that the use of such a test was proper and that the
Commission did not abuse its discretion in finding a violation.
Complainant asserts that the test discussed by the Tenth Circuit in Compass is inapposite
to the present matter on three bases: (1) the “reasonably prudent employer” test was only
intended to address a broad construction industry standard as opposed to the narrow focus of 29
C.F.R. § 1910.119(h); (2) the test has never been applied outside the context of 29 C.F.R. §
1926.21(b); and (3) Compass is not the law outside of the Tenth Circuit. Further, Complainant
argues that, even if the test is applied by this Court, he has established a violation of the cited
standard. The Court disagrees on all counts.
First, the Court does not agree with Complainant’s distinction between the two training
standards. Both standards are formulated in general terms to allow the employer some measure
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of discretion in determining what kind of training is necessary. Compare 29 C.F.R. §
1910.119(h)(3)(i) (“The contract employer shall assure that each contract employee is trained in
the work practices necessary to safely perform his/her job.”) with 29 C.F.R. § 1926.21(b)(2)
(“The employer shall instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment . . . .”). Complainant’s
argument that 1910.119(h)(3)(i) applies much more narrowly to contractors subject to Process
Safety Management (PSM) conditions does not justify applying a different test.2 The language
of the respective standards is very nearly the same and implies a similar level of discretion on
behalf of the employer regardless of the context in which the work is being performed.
Second, Complainant is incorrect that the Compass model has never been applied outside
the context of 29 C.F.R. 1926.21(b)(2). According to the Commission, “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 at 2125 (emphasis added). The
foregoing language implies that the test applies to training standards generally, not just section
1926.21(b)(2). In fact, the training standard at issue in N & N was 29 C.F.R. § 1926.503(a)(1),
which, although it “supplement[s] and clarif[ies] the requirements of 1926.21”, applies much
more narrowly to worksites that present fall hazards. See id.; see also Compl’t Br. at 22 (arguing
that training standards at 1910.119(h) “apply much more narrowly ONLY to worksites at which
large amounts of highly hazardous chemicals are stored”). Further, a simple Westlaw search
- The Court rejects any argument from the Complainant, directly or indirectly, which argues that somehow
contract employees for training purposes should have a different standard apply to them. The Court rejects this
argument since the Act does not indicate that they are to be treated differently. Also, accepting this argument would
impose upon the Respondent a two-tier standard—one applying to regular employees and one applying to contract
employees—creating a much more complex administrative and management system which could undermine
application of the Act and its safety regulations being enforced depending on the circumstance. The easier the
administration of the Act and its regulations is made—the more effective the coverage and administration of the Act.6would have shown that there are other cases wherein the Commission applied the foregoing test
to different training standards. See, e.g., Trinity Industries, Inc., 20 BNA OSHC 1051 (No. 95-
1597, 2003) (applying test to 29 C.F.R. § 1915.12(d)(2)(ii)). For similar reasons, the Court
disregards Complainant’s third argument because whether the Eighth Circuit has adopted the
“reasonably prudent employer” test is irrelevant—it is the Commission test for training standards
and is thus applicable to the present case.
VI. Discussion
A. Citation 1, Item 1
Complainant alleged a serious violation of section 1910.119(h)(3)(i) of the Act as
follows:
21178 SW 89th Rd., Beatrice, NE 68310 (Jobsite): The employer did not ensure
that each contract employee was trained in the work practices necessary to safely
perform their job. On August 17, 2012, one (1) contract employee was
hospitalized after a mechanical plug installed on the High Temperature Shift
suddenly came out as an employee was releasing the bolts and struck the
employee. The vessel was not checked by the employee for pressure prior to
attempting to release the mechanical plug.
The cited standard provides:
The contract employer shall assure that each contract employee is trained in the
work practices necessary to safely perform his/her job.
29 C.F.R. § 1910.119(h)(3)(i).
In addition to satisfying the “reasonably prudent employer” test discussed above, the
Commission has held that the Secretary “must also establish the usual elements of a violation.”
See El Paso Crane & Rigging Co., Inc., 16 BNA OSHC 1419 (No. 90-1106, 1993).
A. Does the Standard Apply?
The first element, as always, is whether the standard applies to the cited condition.
Ormet Corp., 14 BNA OSHC 2134. In this particular instance, the Court finds that the standard
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applies. Section 1910.119(a)(1)(ii) states, “This section applies to . . . a process which involves a
Category 1 flammable gas (as defined in 1910.1200(c)) or flammable liquid with a flashpoint
below 100 °F (37.8 °C) on site in one location, in a quantity of 10,000 pounds (4535.9 kg) or
more . . . .” CSHO Elmore testified Koch’s facility stores more than 10,000 pounds of ammonia,
which, based on his training, subjects Respondent to the PSM standards found at 29 C.F.R. §
1910.119. (Tr. 34). This testimony was not disputed by Respondent. Accordingly, the Court
finds that the standard applies.
B. Has the Standard Been Violated?
The Court, however, does not find that the terms of the standard were violated. As noted
above, Complainant must prove that Respondent failed to provide the instructions that a
reasonably prudent employer would have given in the same circumstances. See N & N, supra.
“Thus, the obligation to train ‘is dependent upon the specific conditions [at the worksite],
whether those conditions create a hazard, and whether the employer or its industry has
recognized the hazard.’” Compass Environmental, Inc., 23 BNA OSHC 1132 (No. 06-1036,
2010) (citing W.G. Fairfield, 19 BNA OSHC 1233, 1236 (No. 99-0344, 2000)).
The particular condition at issue in this case is the presence of the isolation plug. The
plug, on its own, does not present a hazard absent someone working on or near it. This is not a
case like Compass, where training was required to ensure that employees did not come into
contact with an open, obvious, and easily accessible hazard like an adjacent power line.
Compass, 23 BNA OSHC 1132; see also Capform, Inc., 19 BNA OSHC 1374 (No. 99-0322,
2001) (holding employer had responsibility to train regarding hazards associated with the
particular job duties). Rather, an isolation plug serves to mitigate the hazards associated with hot
work that occurs in the vicinity of the isolated pipe. (Tr. 166–68). In those instances, Struble
8
testified that he would be present to monitor pressure build-up behind the plug and take any
actions necessary to address that eventuality. (Tr. 209, 212). Further, due to the possible
presence of pressure behind the plug, it was imperative that an employee be properly trained to
perform that type of work. Struble and Olson testified that intensive training, examination, and
practical experience were necessary to become proficient in that or any other of the sixteen lines
of service provided by Respondent.3 (Tr. 170–71, 197). At the time of the accident, there was
only one individual present at the worksite that was trained and proficient in line isolation—
Mike Struble. (Tr. 175–76).4
[redacted] was trained as a bolting technician, and his extensive experience in that service
line qualified him as a crew lead. (Tr. 181, 183–86). It is undisputed, however, that [redacted]
was not trained in line isolation. See Resp’t Br. at 1–2. Further, there was no reliable evidence
to suggest that, with the exception of the incident in question, [redacted] had ever performed
work on plugs at the Koch worksite. As noted above, Olson had a meeting with [redacted] and
told him, in no uncertain terms, not to touch the plug. (Tr. 175). At the same meeting, Olson
also told [redacted] that he had asked Struble to come to the worksite to uninstall the plug. (Tr.
182). Consistent with that conversation, Struble was present at the worksite at the time of the
accident. (Tr. 213).
Complainant contends that Respondent failed to train [redacted] in work practices
necessary to safely perform his job, such as identifying hazards that he may reasonably be
expected to encounter in the performance of his duties. According to Complainant this includes
“not only what to do, but what NOT to do.” Compl’t Br. at 11. The Commission has stated that
- In that regard, Struble testified that he was trained and certified in six service lines. (Tr. 213).
- Complainant did not cite Respondent for Struble not having adequate training for installation or removal of the
plug.9safety rules need not be written so long as they are clearly and effectively communicated and
identify the hazards associated with the “particular circumstances confronting [employees],
including the ways in which those hazards can be avoided.” Capform, 19 BNA OSHC 1374
(citing El Paso, 16 BNA OSHC at 1425 n.7). Given the strict division of labor between the
various service lines, and the strict admonishment reinforcing that division of labor that was
given not only to [redacted], as crew lead, but also to Wayne Watts, Respondent’s Project
Manager, the Court finds that Olson’s directive not to touch the plug was sufficient to clearly
identify the hazard and effectively communicated the hazard to be avoided. (Tr. 182). Because
of the division of labor, which was reinforced by the intensive training provided on the various
service lines, there was simply no reason for [redacted] to be working on the plug, nor, in light of
his conversation with Olson, was it reasonable for Respondent to expect that [redacted] would
touch the plug.5
Complainant also argues that a reasonable employer, such as Respondent, would have
three ways of ensuring the safe work practices of its employees regarding the isolation plugs.
First, Complainant argues that a reasonable employer would have trained its bolt-up crews “with
great specificity” to recognize the plugs and not to work on them. In that regard, Complainant
contends that Olson’s mandate did not constitute training and, if it did, it was insufficiently
documented to comply with the standard.6 There was no suggestion, however, that [redacted],
Crosby, or Watts did not understand Olson’s instructions, nor was there any testimony that
Respondent’s employees were unaware of what an isolation plug was or how to identify it. See
- The Complainant’s argument that the Respondent should have trained [redacted] on what “not” to do is rejected.
[redacted] was told to not touch or work on the plug. The Court will not impose on a reasonable employer the duty
to train an employee on duties or responsibilities that are not within that employee’s scope of responsibility and
which have expressly been excluded by the employer via communication to the employee. - The Court agrees with Complainant that Olson’s statement was not training but a re-enforcement of the division
of labor between the lines.10N & N, 18 BNA OSHC 2121 (“Critical to the Secretary’s failure to meet her burden here is the
absence of direct testimony from N&N’s foremen, safety officials, or employees to demonstrate
that its employees did not receive the training required here.”). Further, whether the “training”,
if it may be so called, was documented is not an element of the cited standard—the standard only
requires Respondent to train its employees in work practices necessary to safely perform their
respective jobs. See 29 C.F.R. § 1910.119(h)(3)(i).
As to the remaining ways in which Complainant suggests Respondent could have ensured
safe work practices, the Court finds that they are irrelevant to the question of whether
Respondent’s employees were properly trained. Whether Respondent was obligated to monitor
the location of its crews and actively enforced the division of labor is not germane to the
question of whether [redacted] was properly trained. See N & N, 18 BNA OSHC 2121 (“The
failure to enforce compliance with work rules on the job does not establish a failure to train or
instruct, and we cannot infer on the basis of these practices that the training was deficient.”).
Nor, for that matter, does the presence or absence of specially trained individuals at a worksite
indicate such a failure.
In conclusion, Complainant cited Respondent for its failure to train [redacted] with
respect to the hazards associated with removing an isolation plug from a pipe. Citation at 6.
Based on the foregoing, the Court finds that Complainant failed to establish that a reasonably
prudent employer in Respondent’s position would have provided such training to an employee
whose job did not include engaging in such an activity, especially in light of Olson’s explicit
instructions. Further, the Court does not find that Olson’s instructions constitute “training” to the
extent that it was required to be documented; rather, it was merely a reiteration of the already
11
existing division of labor between the separate service lines. Accordingly, Citation 1, Item 1
shall be VACATED.
B. Citation 1, Item 2
Complainant alleged a serious violation of section 1910.119(h)(3)(iii) of the Act as
follows:
21178 SW 89th Rd., Beatrice, NE 68310 (Jobsite): The employer did not have a
record prepared which contained the identity of the contract employee, the date of
training, and the means used to verify that the employee understood the training in
regard to removal of a mechanical plug. On August 17, 2012, one (1) contract
employee was hospitalized after a mechanical plug installed on the High
Temperature Shift suddenly came out as an employee was releasing the bolts and
struck the employee. The vessel was not checked by the employee for pressure
prior to attempting to release the mechanical plug.
The cited standard provides:
The contract employer shall document that each contract employee has received
and understood the training required by this paragraph. The contract employer
shall prepare a record which contains the identity of the contract employee, the
date of training, and the means used to verify that the employee understood the
training.
29 C.F.R. § 1910.119(h)(3)(iii).
The cited standard requires that an employer shall document that its employees have
received and understood the required training. Id. As noted above, Complainant failed to prove
that Respondent was required to provide the training indicated in the citation narrative; namely,
how to properly remove an isolation (mechanical) plug. In light of Complainant’s failure to
prove that such training was necessary, there was no training to properly document.
Nevertheless, Complainant argues that, in addition to Respondent’s failure to document, let alone
provide, isolation plug training, Respondent failed to properly document the safety orientation
training provided by Koch Industries.
12
Respondent was charged with failing to train its employees, or at the very least one
employee, how to properly remove an isolation plug. In its brief, however, Complainant
attempts to expand the scope of the original allegation by including Respondent’s failure to
properly document orientation training. See Compl’t Br. at 17. There is no question that the
sign-in sheet, which addresses orientation training, fails to comply with the requirements of
section 1910.119(h)(3)(iii), as it fails to indicate the means of verifying that employees
understood the training. (Ex. R-2). The problem, however, is that Complainant did not allege
deficiencies in the orientation training; the Citation specifically targeted training with respect to
the isolation plug. Such an expansion of the original allegations, in effect, constitutes an
amendment to the original pleadings.7 The Court finds such an amendment would be improper
for two reasons.
First, the failure to properly document orientation training does not arise out of the same
conduct, transaction, or occurrence as the allegation regarding isolation plug training. See Fed.
R. Civ. P. 15(c)(1)(B). The original allegations were specifically targeted at one aspect of
Respondent’s training program. To allow Complainant to amend the Citation to include Koch’s
safety orientation, as he has done here, would require additional facts that were not included in
the original allegations. See Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir.
2013) (“[A] new pleading cannot relate back if the effect of the new pleading ‘is to fault [the
defendants] for conduct different from that identified in the original complaint,’ even if the new
- Fed.R.Civ.P. 15(b) allows pleadings to be amended to conform to the evidence presented at trial. The rule is
“designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result.” U.
S. v. Hougham, 364 U.S. 310, 316 (1960). A judge’s post-hearing sua sponte amendment is proper under Morrison-
Knudsen Co./Yonkers Contrac., 16 BNA OSHC 1105 (No. 88-572, 1993), petition for review filed, No. 93-1385
(D.C.Cir. June 15, 1993) (Commission upheld a judge’s post hearing sua sponte amendment under the second part
of Rule 15(b). The second part of Rule 15(b) requires an inquiry as to whether the employer is prejudiced by the
amendment).13pleading ‘shares some elements and some facts in common with the original claim.’”) (internal
citations omitted).
Second, the Court cannot discern anywhere in the trial transcript where the sufficiency of
the orientation training documentation was tried by consent of the parties. “[A] court may not
base its decision upon an issue that was tried inadvertently. Implied consent to the trial of an
unpleaded issue is not established merely because evidence relevant to that issue was introduced
without objection. At least it must appear that the parties understood the evidence to be aimed at
the unpleaded issue.” McWilliams Forge Co., 11 BNA OSHC 2128 (No. 80-5868, 1984). The
target of this investigation was the isolation plug and associated training—Complainant failed to
prove that Respondent was required to provide that training. Complainant cannot now expand
the scope of the allegations to include all training and all documentation merely because it
introduced an exhibit that was marginally relevant to the issue of whether isolation plug training
was provided to [redacted]. (Ex. C-2). Respondent directed testimony to that document to rebut
the allegation that it was required to provide training in the first place, let alone document it.
Thus, the Court finds that the issue was not tried by consent, whether express or implied, and that
the Respondent would be prejudiced by the Court permitting a sua sponte amendment.
Based on the foregoing, the Court finds that Complainant failed to prove a violation of
the cited standard. Accordingly, Citation 1, Item 2 shall be VACATED .
C. Citation 1, Item 3
Complainant alleged a serious violation of section 1910.119(h)(3)(iv) of the Act as
follows:
21178 SW 89th Rd., Beatrice, NE 68310 (Jobsite): The contract employer did not
assure that a contract employee filled out a safe work permit as required by the
contracting employer prior to removing a mechanical plug. On August 17, 2012,
one (1) contract employee was hospitalized after a mechanical plug installed on
14
the High Temperature Shift suddenly came out as an employee was releasing the
bolts and struck the employee. The vessel was not checked by the employee for
pressure prior to attempting to release the mechanical plug.
The cited standard provides:
The contract employer shall assure that each contract employee follows the safety
rules of the facility including the safe work practices required by paragraph (f)(4)
of this section.
29 C.F.R. § 1910.119(h)(3)(iv).
A. Does the Standard Apply?
As a preliminary matter, the Court finds that the standard applies for the same reasons
discussed in Section VI.A, supra.
B. Has the Standard Been Violated?
For the reasons that follow, the Court finds that the terms of the standard were violated.
As noted above, Struble testified that he spoke to a Koch representative in order to
procure a safe work permit for the installation of the isolation plug. The Koch representative
told Struble that he should sign onto the permit that was already issued to Cust-O-Fab for the hot
work that was being performed in the area. (Tr. 210). Struble testified that signing onto another
contractor’s safe work permit was unusual and that he had worked at other Koch facilities where
he was required to obtain his own safe work permits. (Tr. 220). He also testified that the
practice of signing onto another contractor’s permit was contrary to the requirements expressed
in the Koch Industries training video, which was shown during orientation. (Tr. 221).
Notwithstanding the foregoing, Struble testified that he signed onto Cust-O-Fab’s permit and
updated it with information relevant to the work he was going to perform. (Tr. 219). There was
15
no evidence that [redacted] signed, procured, or even attempted to procure a safe work permit for
the removal of the plug.8 (Tr. 121, 213).
CSHO Elmore testified that he spoke with a Koch representative about its safe work
permit system. (Tr. 64). According to this individual, all subcontractor employees performing
work in Koch’s facility are required to procure a safe work permit. (Tr. 64–65). Thus, in the
opinion of CSHO Elmore, the only way Furmanite would be unable to procure a safe work
permit is if its employees failed to ask for one. (Tr. 127–128). It is important to note, though,
that Elmore did not identify any formal, written rule requiring the use of safe work permits. (Tr.
122).
There is one issue that needs to be resolved in order to determine whether Respondent
violated section 1910.119(h)(3)(iv): What, in light of the discrepancy between Struble’s and
Elmore’s testimony, was Koch’s work rule regarding the issuance of safe work permits? The
Court previously noted that work rules need not be written, so long as they are clearly and
effectively communicated. See Capform, 19 BNA OSHC 1374 (citing El Paso, 16 BNA OSHC
at 1425 n.7); see also Stuttgart Machine Works, Inc., 9 BNA OSHC 1366 (No. 77-3021, 1981).
Thus, the fact that the particular rule regarding the issuance of safe work permits was not
memorialized in a formal document is not fatal to either party’s case; however, the fact that there
are two competing accounts of how to comply with the rule makes its determination more
challenging.
On the one hand, Respondent contends that Koch’s alleged refusal to supply Struble with
a safe work permit and telling him to sign on to permits previously obtained by Cust-O-Fab “was
the ‘safety rule of the facility’” and thus provided an explanation as to why [redacted] did not
- According to CSHO Elmore, [redacted] procured a safe work permit for a different job approximately two to four
weeks prior to the accident, but that permit was unrelated to the removal or installation of the plug. (Tr. 67–68).16have a permit when he attempted to remove the isolation plug. Resp’t Br. at 13. On the other,
Complainant points to the fact that: (1) Struble testified that signing onto Cust-O-Fab’s permit
was contrary to the instructions in Koch Industries orientation video, which stated that such
permits were required; (2) other Koch facilities required Struble to procure a safe work permit
for each job and that the practice of signing onto another contractor’s permit was unusual;9 and
(3) the contract documents between Koch and Respondent place the burden of compliance with
on-site safety rules on the contractors and therefore it was the obligation of Respondent to
resolve any inconsistency.
The Court agrees with Complainant. Although CSHO Elmore’s testimony, standing
alone, is of questionable value given its reliance on unidentified sources, it is consistent with
Struble’s testimony regarding the orientation training video and work rules at other Koch
facilities and his own actions at the Beatrice facility in requesting a work permit be issued,
thereby giving it credibility. Further, the Court is somewhat circumspect about Struble’s
testimony regarding his conversation with Koch’s representative:10 He testified that he was told
to sign onto Cust-O-Fab’s permit, and yet the Court cannot find, nor did Respondent attempt to
introduce, a safe work permit that corroborates Struble’s testimony. (Ex. R-6). Further, the
permit that was introduced into evidence (R-6) does not mention, even indirectly, the installation
or removal of the plug. (Id.). While Elmore’s testimony regarding the work rule was
corroborated by Struble, there was no evidence to substantiate Struble’s claim that Koch required
him to piggyback onto Cust-O-Fab’s permit.11 The weight of the evidence compels the
- At trial this process was referred to as “piggybacking.” Neither party has directed to the Court any case law
which has specifically has addressed this practice. - For the reasons stated herein, the Court gives no weight to Struble’s versions of the facts.
- In addition, Struble offered no testimony as to how he attempted to reconcile his understanding of what the
Koch Industries work rule required to what he was told. As the sole person responsible for the work to be
performed, and as a prudent and trained supervisor, he should have made those attempts.17conclusion that the work rule required the pulling of an independent permit for the installation
and removal of the plug, which did not occur in this case either by Struble or [redacted].
Alternatively, the Court finds that, even if the work rule allowed for piggybacking,
Respondent failed to comply with that rule as well. Struble testified that he signed Cust-O-Fab’s
work permit and that it mentioned the “installation of the Furmanite plug on there” and that it
went into detail about the hazards associated therewith. (Tr. 219). The work permit submitted
into evidence by Respondent contains no such information relative to the work performed by
either [redacted] or Struble. (Ex. R-6). Further, Respondent failed to rebut CSHO Elmore’s
testimony that [redacted] had failed to procure or even sign onto a Cust-O-Fab permit—there
was simply no evidence introduced to show that [redacted] had piggy-backed onto an existing
permit for the purpose of removing the isolation plug. Accordingly, the Court finds that
Complainant proved that Respondent failed to comply with the terms of the standard.
C. Were Respondent’s Employees Exposed to the Hazard?
The Court finds that Respondent’s employees had access to the hazardous condition.
According to CSHO Elmore, the purpose of obtaining a safe work permit is to ensure that all
hazards associated with a specific work activity have been identified and addressed. (Tr. 83).
The failure to procure a permit or properly document the hazards associated with a work activity
exposes employees to potentially dangerous conditions. (Tr. 67). In this case, [redacted] and
Struble were exposed to the hazards associated with hot work occurring adjacent to or on a
pipeline, which had an isolation plug installed.
D. Did Respondent have Knowledge of the Hazard?
Respondent also knew, or with the exercise of reasonable diligence, could have known of
the violative condition. “The actual or constructive knowledge of an employer’s foreman can be
18
imputed to the employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82–
928, 1986). “An employee who has been delegated authority over other employees, even if only
temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an
employer.” Paul Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379, 1381–82 (No. 76–4271,
1981).
According to Commission precedent, both [redacted] and Struble qualify as supervisors.
[redacted], according to Olson, was a crew leader and was responsible for directing the work of
his crew. (Tr. 181–83). Although he did not have the authority to discipline, the Commission
has noted that job titles are not controlling and that the power to hire and fire “is not the sine qua
non of supervisory status . . . .” Rawson Contractors, Inc., 20 BNA OSHC 1078 (No. 99-0018,
2003); see also Kern Bros. Tree Serv., 18 BNA OSHC 2064, 2068–69 (No. 96-1719, 2000)
(knowledge of crew leader who was responsible for seeing that the work was done safely and
properly was imputed to employer even though he had no authority to actually discipline an
employee). Struble, by his own admission, was a supervisory level employee. (Tr. 192). Both
[redacted] and Struble failed to procure a permit or, alternatively, failed to properly document
their activities on an existing permit procured by Cust-O-Fab. As supervisory employees, it was
their job to ensure that work rules were complied with, and they failed. The Court finds that
[redacted] and Struble had actual knowledge and therefore it is properly imputable to
Respondent irrespective of the foreseeability of their actions.12
E. Was the Violation Properly Classified as Serious?
- The Court would note that this case emanates from the 8th Circuit, which has not addressed the question of
whether the violative acts of a supervisor can be imputed to an employer on the basis of implied or constructive
knowledge without also establishing whether those actions were foreseeable. See ComTran Group., Inc. v. DOL,
722 F.3d 1304 (11th Cir. 2013). In the absence of such precedent, the Court has applied Commission case law,
which allows such imputation. See A.P. O'Horo Co., 14 BNA OSHC 2004, 2007–2008 (No. 85-369, 1991).19The Court finds that the violation was properly classified as serious. The failure to follow
safe work rules in an otherwise unfamiliar environment can, and in this case did, result in serious
physical injuries. As previously discussed, Complainant does not need to show there was a
substantial probability that an accident would occur; he need only show that if an accident did
occur, serious physical harm could result. In this case, [redacted]’s failure to follow Koch’s
work rules regarding safe work permits not only exposed him to the possibility of a serious
physical injury, but he actually suffered a head injury that has caused permanent damage. (Tr.
79, 82).
Based on the foregoing, the Court finds that Complainant has established his prima facie
case of a violation of Citation 1, Item 3.
VII. Affirmative Defenses
Respondent has proffered two separate affirmative defenses to Citation 1, Item 3. First,
Respondent contends that 29 C.F.R. § 1910.119(h)(3)(iv) is unenforceably vague. Second,
Respondent argues that the violation was the result of unpreventable employee misconduct on
behalf of [redacted]. The Court disagrees on both counts.
A. Standard is Not Unenforceably Vague.
First, though some standards require the use of broad terms that are not necessarily
defined within the regulations, the use of those terms does not render a standard unenforceably
vague; rather, “it means that an employer must read it in light of the conduct to which it applies
and guide his actions accordingly.” Dravo Corp., 7 BNA OSHC 2095 (No. 16317, 1980) (citing
Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952)). Because specific standards
cannot begin to cover all of the infinite variety of hazardous conditions that employees face,
general regulations are not constitutionally unenforceable on due process grounds as long as a
20
reasonableness requirement is read into them. W.G. Fairfield Co. v. OSHRC, 285 F.3d 429 (6th
Cir. 2002). Although an employer is not required to guess at what the definition means, a
standard does not become unenforceably vague simply because an employer must exercise
“experience, knowledge, and judgment.” Id. (citing Allis-Chambers v. OSAHRC, 542 F.2d 27,
30 (7th Cir. 1976)).
Respondent takes issue with the phrase “safety rules of the facility.” The ordinary
meaning of this phrase, it claims, does not give any guidance as to how those rules, regardless of
how they are defined, are established. Thus, Respondent expresses confusion as to whether the
rules testified to by CSHO Elmore or those testified to by Struble are the actual “safety rules of
the facility.” Because the standard does not answer such a question, Respondent asserts that the
standard is unenforceably vague. The Court fails to see any such issue. As Respondent itself
pointed out, the Commission does not require that the rules be written, so long as they are
effectively communicated. Respondent’s confusion stems not from the failure of the standard,
but from its failure to follow up on the disconnect between what Koch typically required (and
showed in its video) and what the Koch representative told Struble when he attempted to procure
a safe work permit. This is not an instance where Respondent was clutching at straws in an
attempt to discern what its responsibilities were at the Koch facility—Respondent had plenty of
experience working at Koch facilities and was familiar with their method of operation. In light
of this context, Respondent could reasonably use its experience, knowledge, and judgment to
guide its actions. If Respondent could not determine what the rules were or if it was unclear as
to the source of Koch’s rules, it was incumbent upon a reasonably responsible employer to gain
clarification from Koch. See 29 C.F.R. § 1910.119(h)(3)(iv) (indicating that it is the contract
employer’s responsibility to ensure compliance with facility safety rules); (See also Exs. C-10,
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C-11). Accordingly, the Court concludes that the standard sufficiently warned Respondent of the
conduct required. See Nat’l Industrial Contractors, Inc. v. Occupational Safety and Health Rev.
Comm’n, 583 F.2d 1048 (8th Cir. 1978).
B. Unpreventable Employee Misconduct Conduct has not been Established.
Second, the Court also finds that Respondent failed to establish the defense of
unpreventable employee misconduct with respect to Citation 1, Item 3. In order to prevail on
this defense, Respondent must prove that: (1) it has work rules designed to prevent the violation;
(2) that it has adequately communicated those rules; (3) that it has taken steps to discover
violations; and (4) that it has effectively enforced the rules when violations are discovered.
Burford’s Tree, Inc., 22 BNA OSHC 1948 (No. 07-1899, 2010). Respondent’s arguments with
respect to this defense focus entirely on [redacted]’s removal of the plug without the authority or
know-how in order to do so. Citation 1, Item 3, however, is a slightly different animal, in that
the misconduct at issue is the failure to comply with the rules regarding safe work permits.
With respect to the first element, there was clearly a rule that required contract employees
to get a safe work permit prior to engaging in certain types of work. Whether that rule was
effectively communicated, however, is less certain. Clearly, Koch Industries may not have been
consistent in its application of the safe work permit rule across facilities; however, as noted in
the agreement between Koch Industries and Respondent, it was Respondent’s responsibility to
ensure the safety and health of its own employees and to ensure that its employees complied with
all applicable rules and regulations. If there was confusion as to what the rules were, as seems to
be the case here, it was incumbent upon Respondent to clarify the misunderstanding and ensure
that the rule was consistently applied. This responsibility presumably devolved to Wayne Watts,
whom both Struble and Olson referred to as the project manager for Furmanite on the Koch
22
facility project but about whom little else was said. (Tr. 177, 182, 198). Further, since Struble
testified as to his experience regarding the issuance of safe work permits in the past, it was not
only an issue that Respondent was aware of, but it illustrated how important it was that
Respondent ensured consistent application of the rule. Thus, the Court finds that Respondent
failed to effectively communicate the rule to its employees.
As to the last two elements, the Court is not convinced that Respondent established
either. With respect to (3), it does not appear as if there was any system in place for
Respondent’s management to ensure the proper issuance of safe work permits to its employees
on Koch’s worksite. That is not to say that the issuance of those permits was Respondent’s
responsibility; rather, because it was incumbent upon Respondent to monitor its own employees’
compliance with the rules, Respondent should have been engaged in the permit review process.
See N & N Contractors, Inc., 18 BNA OSHC 2121 (holding that employers must exercise
reasonable diligence to discern presence of violations, including adequate supervision of
employees, inspecting work area, anticipating hazards, and taking measures to prevent
occurrence of violations); see also Burford’s Tree, 22 BNA OSHC 1948 (rejecting defense of
employee misconduct because respondent failed to monitor compliance with seatbelt rule on
daily basis).
Finally, with respect to (4), although Olson testified that no one had ever attempted to
remove a plug without proper training as [redacted] had, Respondent did not introduce any
evidence of a disciplinary policy or of its enforcement of any of its safety rules. (Tr. 176). See
GEM Industrial, Inc., 17 BNA OSHC 1861 (No. 93-1122, 1996) (“To prove adequate
enforcement of its safety rule, an employer must present evidence of having a disciplinary
program that was effectively administered when work rule violations occurred.”). Further, the
23
fact that two supervisory level employees engaged in the violative behavior speaks to the level of
oversight exercised by Respondent and the enforcement of its work rules. See Archer-Western
Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1017, 1991), aff'd without published
opinion, 978 F.2d 744 (D.C. Cir. 1992) (“A supervisor’s involvement in the misconduct is strong
evidence that the employer’s safety program was lax.”). Based on the foregoing, the Court finds
that Respondent failed to establish the defense of unpreventable employee misconduct.
Accordingly, Citation 1, Item 3 shall be AFFIRMED.
VIII. Penalty
In determining the appropriate penalty for affirmed violations, section 17(j) of the Act
requires the Commission to give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the
employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,
15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and
its judges conduct de novo penalty determinations and have full discretion to assess penalties
based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel
Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138
(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).
Respondent employs over 250 employees. (Tr. 80). The Court agrees with Complainant
that the violation was of high gravity—not only were multiple individuals violating the standard
at issue, but, in doing so, they were exposing themselves to the potential for very serious injuries.
24
The injuries suffered by [redacted] illustrate how serious a violation of this nature can be. That
said, Respondent has no prior history of violations, which entitles them to a ten-percent reduction
in penalty. Accordingly, the Court hereby assesses a penalty of $6,300.
ORDER
The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing
Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1 and the associated penalty is hereby VACATED.
2. Citation 1, Item 2 and the associated penalty is hereby VACATED.
3. Citation 1, Item 3 is AFFIRMED and a penalty of $6,300.00 shall be ASSESSED.
SO ORDERED
/s/ Patrick B. Augustine
Patrick B. Augustine
Date: June 25, 2014 Judge, OSHRC
Denver, Colorado
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