In this calm before the storm, I decided to vent at that one group of people we all love to disparage - lawyers. Specifically our lawyers. I'm not going to rant about how much I hate lawyers, because I actually don't hate them, but sometime they frustrate the hell out of me. Tell me if this scenario sounds familiar.
You've done an inspection, you and your AD agree to 8 Serious and 4 OTS, total penalty $15k. You have video of the employees using unguarded machines, working from heights without fall protection, and a video taped confession from the plant manager admitting that they don't have a LO/TO program. It is as straight forward as any inspection can be. The company comes in and won't agree to the informal settlement. That's OK, the company is exercising it's rights, it's an inconvenience, but not a problem.
You send the case file up to the RSOL and wait. Three months later you hear back, the case has been settled: 1 Serious and 2 OTS, total penalty $1250.
Now comes the fun part, the postmortem, what happened to your case? You get permission to directly call the attorney handling the case. Here's how that conversation goes:
"Why?" you ask incredulously.
"We didn't have enough evidence."
"What was missing?" you ask, wondering if this attorney was using the royal We, because they sure as hell were part of the inspection.
"It just wasn't complete enough."
"But what else did I need to do?"
"No, you did a fine job, but a judge is going to look at the totality of the case."
"What does that mean and what could I have done to complete the case?"
"I'm not sure there was more you could do, it just wasn't a strong case."
It's at that point you have an epiphany, and the rationale for keeping attorneys in the RO instead of the AO suddenly makes perfect sense.
For those not in the agency, I just want to point out that most of us don't deal with our attorneys very often, so this isn't an everyday occurrence. It's also important to understand that not all attorneys are the same, I once had an attorney who was ready to go to trial over 3 OTS, but the case was settled the day before the trial.
What I would beg of any attorney is quite simple:
- If I miss something tell me. You won't hurt my feelings, I'm more concerned with getting the employer to correct the problems than I am inter-agency politics.
- If you tell me I'm missing something, don't forget to tell me why it's important that I have it next time.
- Be consistent. It seems like in one case you'll say "Oh, you don't have this, and we need it to go to trial." And then on the next case I have it and you say "Oh, that's not important, you need this instead," even though it was never mentioned in the previous case.
- I get that judges have different perceptions of what preponderance of evidence means, but a video makes things pretty clear.
- I'm a big kid, lawyers don't scare me. Let the opposing attorney come at me, I'll nail his ass to the wall just like I did the plant manager's.
It occurs to me that the biggest thing we lack is conversation between attorneys and CSHOs. Occasionally we'll have an attorney lecture us, but that doesn't work very well, we need to talk, to have actual conversations from one professional to another.
Abel,
ReplyDeleteGreat post! My I cross post on The Pump Handle?
Thank you, and yes you may cross post. I have to tell you, your July 31 post was my inspiration, so thank you for that.
ReplyDeleteAbel,
ReplyDeleteIt sounds like the lawyer was blowing you off, imo. Doesn't your AD have to approve the settlement?
Re: writing a short summary of the evidence - doesn't the OSHA-1B pretty much do that?
RT,
ReplyDeleteTheoretically, yes the settlement should be approved, however, over the course of a 20+ year career, it becomes obvious that not everything goes as it should. And there are worse examples out there than this.
This was also a fictionalized account, with maybe just a little hyperbole thrown in for fun, designed to make a point. It was based loosely on several real incidents, although not all of them happened to me.
The 1B might work, except that most people either put everything including the kitchen sink in the 1B, or they put next to nothing and say "it's in the notes or on the tape." There's a real inconsistency on how the 1B's are filled out. Part of Reinvention was that the forms became less important than just the fact that you had the information you need. I know one CSHO who basically never took a note, they got everything on video tape. If they took a distance measurement, they videotaped the tape measure. The 1B's always said "See video tape."
I think that if you fill a 1B out properly, it has too much information for what I'm suggesting. You want draw the attorney's eyes to the big stuff, to convince them how bad things are and that this citation is worth pursuing. The detail in the 1B then shows them you've also taken care of the small stuff they'll need to prosecute the case.
Here's something else to consider. Suppose one of your violations is for not having MSDSs. A very ho-hum citation. On the 1B you list the missing MSDSs. Are you going to take the time to look into the hazards of each chemical and list them on the 1B? Probably not.
ReplyDeleteNow, what if one of chemicals is 2,4,6-trinitrophenol (TNP). What does that mean to the attorney when they see it on the 1B? Probably nothing. If, however, you take the time to prepare something for RSOL, and point out that 2,4,6-trinitrophenol (TNP) is also know as picric acid, and it can explode, you might get the lawyers attention.
Able
ReplyDeleteI see your point, but as a non-OSHA insider, I question, 1) did the employer instruct the employee to keep the guard on and he chose to remove it anyway, same for the fall hazard.
I don't disagree that ultimately, the employer must enforce proper safety practices, but is it possible that the employee may have some fault? I know it was only an anecdotal case, but I keep seeing situations where the employer is always at fault, and the employee is never considered at fault. How do you resolve the second part of the General duty clause, 5(b)?
Most of the attorneys I have worked with have been really great. Some cases, CSHOs are permitted to contact SOL in advance for advice - you need this or that, shore this up, etc. It's been a great relationship. Of course, there's a few that you grimace when you hear who drew your case.
ReplyDeleteThere have been cases from my office that have no documentation in a file with the exception of an employee's name or two and that's it. I pity the poor attorney who gets assigned those cases. They've done their best to save the case at reduced OTSs. Can you imagine? Cite an employer 3 seriouses at $7500 and there's no documentation. Then what's worse, my case with that same employer is going to court. The ultimate insult... my supervisor tells me that the previous CSHO made an awesome case so my case just road its coat tail! I looked at the file and found one piece of paper with some hen sketches!! At least my case prevailed and the attorney complimented me in front of my supervisor and AD, which both never acknowledged me.
My last significant case was fought over by a few attorneys when the cases were brought to them for assignment. They knew my cases were well documented. Who do I have to thank? A few attorneys who were willing to say, call me if you need some advise! Wow, that really blew my mind. Of course, our lead agency counsel has also been innovative in developing communications between SOL and the CSHOs.
For those who enter here -- abandon all hope - and - there is no exit! This is OSHA -- what a bunch of winers! The Solicitors and CSHOs are fallible people. Some have a clue - some have a partial clue, and some are clueless. Some vascilate between all these states. CSHOs need the legal aspects course and solicitors need some training on OSHA Standards, as well as a stint in the field shadowing CSHOS so they get a dose of reality. This won't happen as we know! Ergo, book learning and law vs real world situations with all the dynamics related to human behavior. Bust your ass doing a so called perfect inspection and casefile and you still have no guarentee of anything. It is a ritualized game or dance between the opposing lawyers that has nothing really to do with S & H, but pedantic rule of law and forensic argumentation, as well as sophistry. If you are idealistic, you are in hell!
ReplyDeleteKanabal
I am an idealist, with just a dash of cynicism, a good measure of realism, and maybe just a pinch of narcissism tossed in.
ReplyDeleteI believe that an idealist, a true idealist, doesn't quit, ever.
It doesn't matter how many citations get tossed by my AD or SOL, I'm going to keep writing them.
It doesn't matter if the agency never writes another standard, I'll use 5(a)(1).
It doesn't matter when the annual "big lie" comes around and I have to do construction inspections just to get numbers up, the rest of the year I'll do it right.
Today doesn't matter. Tomorrow doesn't matter. Where we are 10 years, 20 years and 30 years from now, that's what matters.
Abel. You are a realist, since you know the score and adapt accordingly in order to survive another day, which is neceaasry if you want to keep your job and work from inside the agency. Many of us have had to adapt this way, and I hope others are on board with you, because it is one of the few ways we can promote the true mission of protecting workers. Without folks like you in OSHA, workplaces would most likely revert back to where they were in the 60s. Keep on Keepin' on brother.
ReplyDeleteNeo