I usually breakdown the OSHRC decisions in a technical way; however, this one is more cultural rather than technical. It is a story of a chicken processing business that decided that a Safety Professional’s job could be shared by others and they could save the $ on the salary. This is a company that already had a history with OSHA compliance issues and their decision to hire a contractor to manage their safety vs. hiring a qualified individual came back to bite them in the _ss!
I. History of Citations
Both the current ownership and its predecessor, MVP, were cited for violations of the OSH Act. In February 2012, while Mr. Wieder was still CEO of the facility, OSHA commenced an investigation. This investigation led to the issuance of citations to MVP in August 2012 (2012 Citations). These 2012 Citations included, among other things, three serious violations of the LOTO standard, 29 C.F.R. § 1910.147, and one serious violation of the standard concerned with occupational noise exposure, 29 C.F.R § 1910.95(c).
After the new owner took over the facility, the Operations Director, reviewed the 2012 Citations to assess whether the violations had occurred and whether the facility would be able to abate the violations. After concluding it could comply, the company entered into a settlement agreement with OSHA on August 7, 2013 (the 2013 Settlement Agreement). Mr. Wieder also reviewed this 2013 Settlement Agreement, by which the facility:
(1) accepted the violations that had been issued to MVP,
(2) agreed to pay $10,000, and
(3) agreed to take various abatement actions to address the violations.
Mr. Wieder was responsible for ensuring the facility complied with the agreement.
The Superintendent acknowledged that the management in place before 2013 was not concerned about safety. However, by the time of 2013 Settlement Agreement, the facility had a dedicated health and safety manager. He reported directly to Mr. Wieder and was hired to ensure compliance with OSHA and regulations issued by the United States Department of Agriculture (USDA).
A few months after the facility signed the 2013 Settlement Agreement, OSHA inspected the facility again. This inspection resulted in the issuance of several citations on June 10, 2014 (2014 Citations). The 2014 Citations included violations related to the same LOTO and hearing protection standards that were resolved by the 2013 Settlement Agreement.
Specifically, the 2014 Citations included:
(1) a repeat violation of 29 C.F.R. § 1910.147(c)(4)(i), for insufficient LOTO procedures;
(2) a serious violation of 29 C.F.R. § 1910.147(c)(6)(i), for failing to conduct periodic inspections of the company’s energy control procedure;
(3) a serious violation of 29 C.F.R. § 1910.147(c)(7)(i)(A), for failing to appropriately train employees about energy isolation and control; and
(4) a repeat violation of 29 C.F.R. § 1910.95(c)(1), for failing to have an effective hearing conservation program.
In all, the 2014 Citations included fourteen violations, six of which were characterized as repeat.
Mr. Wieder reviewed the 2014 Citations when they were issued. He then, on the facility’s behalf, executed two settlement agreements (2014 Settlement Agreements) to resolve the 2014 Citations (one relating to the safety violations, including the LOTO standard, and one relating to the violation for lacking an effective hearing conservation program). In the 2014 Settlement Agreements, Respondent accepted the violations as issued, including the characterization of six of the violations as repeat, and agreed to pay $40,360 in penalties. Respondent also agreed to retain a consultant to develop and implement a written health and safety program and to establish a program of at least monthly inspections.
Around the same time as when the 2014 Settlement Agreements were reached, the health and safety manager left the facility. Mr. Wieder then assigned key aspects of Respondent’s health and safety program to the HR Manager. He had to delegate safety responsibility. It was not possible for him to do it himself along with his other responsibilities.
The HR Manager’s new safety and health responsibilities were in addition to continuing her human resources responsibilities, such as payroll and hiring. When Mr. Wieder assigned the new duties to her, she had been working for the facility for about a year. She had no professional health and safety experience and, when she began working for the facility, she did not know she would end up with responsibilities related to this area. Before making this change, Mr. Wieder did not ask her anything specific about safety and health, such as her understanding of LOTO requirements or hearing conservation. Still, she was given responsibility for all safety orientations and a large part of what had been the former safety professional’s other responsibilities.
Initially, Mr. Wieder planned to hire a full-time health and safety manager to replace the former safety professional. He recognized that the HR Manager did not have professional or educational experience with health and safety. And he acknowledged that he himself was not an expert in safety. However, the facility had difficulty recruiting someone at the salary and benefit package it wanted to offer. So, although having the HR Manager handle employee health and safety was initially planned as temporary, she was still responsible for this area, along with continuing to fulfill numerous other responsibilities, when OSHA commenced another inspection over a year later.
The HR Manager received some assistance with employee safety and health compliance after Mr. Wieder complied with the 2014 Settlement Agreements by retaining an outside consultant, Lancaster Safety Consulting, Inc. (LSCI), to assist with health and safety at the facility for one year. Jason Lancaster, LSCI’s Vice President for Operations, and Sarah Rothrock, a Project Coordinator, tried to assist Tthe facility in abating the 2014 Citations and to develop a health and safety program for the company. The HR Manager was responsible for making sure LSCI complied with the agreement for services and she served as LSCI’s point of contact at the facility.
LSCI’s primary goal for the one-year contract was to ensure that the facility properly abated the 2014 Citations. It was not tasked with ensuring day to day compliance. LSCI visited the site four times, discussed what actions Respondent needed to take to abate the violations, and provided a draft document titled Control of Hazardous Energy (the LOTO Plan) to Respondent in October 2015. The HR Manager reviewed the LOTO Plan and Mr. Wider provided input on its development. The LOTO Plan included steps to de-energize machines powered by a single plug. However, it needed to be supplemented with LOTO procedures for the specific machines at the facility with more than one source of energy and would also need to be updated as the facility acquired additional electronic equipment.
A few months after LSCI provided the LOTO Plan, on March 2, 2016, OSHA commenced two more inspections of the facility. Inspection number 1132233 resulted in one Citation alleging willful violations of the LOTO standard being issued on September 2, 2016. Inspection number 1131470 led to one serious Citation, with eight separate items, and one other-than-serious Citation with four separate items being issued on September 2, 2106.
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