Wednesday, January 6, 2010

Did I Miss the Memo?

Any one who follows OSHA's press releases has probably noticed a recent jump in the number of sig-cases (a sig or significant case is any OSHA case where the proposed penalty exceeds $100,000). I've certainly noticed a jump, although I don't have the numbers to back it up.

The left-wing politicos will, of course, claim it's the current administration doing what the previous one failed to do. And the right-wing politicos will, of course, claim it's another example of the left's assault on business. But here's the thing, no one has told me to do more sig-cases, just like under the previous administration, no one told me not to do sig-cases. There was no memo. There was no directive.

The fact that the number of sig-cases has gone up even though no one told us to do more, has lead me to the realization that we, as compliance staff, are self limiting, or at least self regulating. After I came to that realization I began to think about various conversations over the last 20+ years.

I remember conversations when the previous administration came into power that basically went like this: "Oh, this administration will never support a sig-case." That was it. This despite the fact that we received no memo saying we were doing too many sig-cases. For the CSHOs out there, think back over the previous administrations time, have any of you ever heard of a sig-case that was rejected once it went to the NO? Certainly once the NO attorneys take their hacks at it, the language, specific standard and penalty may be slightly adjusted, but none that I know of dropped below $100,000.

I remember conversations early last year that basically said: "Oh, this administration will support all our sig-cases." That was it. This despite the fact that we received no memo saying we weren't doing enough sig-cases.

This has lead me to the conclusion that we have allowed ourselves to be caught up in the liberal/conservative-hype-machine's rhetoric. We have suppressed our training and instincts in favor of what we assume the current administration wants, instead of making the administration tell us what they want.

This could lead to a whole new political science/sociology field of study that I think should be called Organizational Subconscious Psychology. Alternatively we could call it the Lemming Phenomenon.


  1. Good post Abel. I am concerned about the recent article, "Labor Chief Moves on Job Safety, Workers' Rights," By Sam Hananel, Associated Press Writer that made all the national news outlets.

    Especially in the first sentence, "Soon after she became the nation's labor secretary, Hilda Solis warned corporate America there was "a new sheriff in town."

    In contrast,a majority of the manufacturing sector is small businesses (over 70% less than 20 employees), which is middle America, not Corporate America. These facilities do not have full-time EHS on their staff. So CSHO's receive specialized training on identifying and evaluating combustible dust fire and explosion hazards. Yet, where is the information, education, and outreach for these small businesses?

    This is where NIOSH can enter the picture as the Congress mandated in the OSH Act 1970. OSHA/NIOSH should always be mentioned in the same sentience when discussing occupational health and safety for the nation's workplace.

    Lets bring the OSH Act back and have OSHA and NIOSH working in concert together. Just my two cents from the 30,000 ft view

  2. Is it safe to assume the 100k+ cases are not small businesses? If they are, they must be the ones that can afford it. The norm is small fines for small employers, even for egregious fatalities. Are the fine statistics available on the public osha site? It would be interesting to look at employer size for sig cases and compare it to all fines.

    By the way, NIOSH re-announced their cost of deaths report in this week's e-news

  3. All-Feed Processing and Packaging Inc. in Galva, Ill. Proposed fines total $518,520., which is a small business

    Sure they can afford it after laying off workers and maybe having to close down completely. That is a good way to fix the dust problem, shutdown small businesses that generate combustible dust.

    I'd like to see the size of the businesses that were cited in the recent OSHA Combustible Dust NEP Status Report

  4. I would agree that All-Feed looks like a small employer, but $1 mil in sales and 2 sites with rail service... not very small. Severance for the 7 employees, after the proposed $518k fine is reduced and assets are sold, would mean happy retirement for any worker there.

    All-feed refers to Imperial Sugar as an "oppressed American business" in a list with other large companies with unacceptable fatalities. I agree with you posts on dust, but industry has had warning.

  5. All-Feed is a small company, 50 employees, but what wasn't in the press release is a good explanation of the company's history. This is their history:

    1/00 - Two inspections (one safety and one health) based on a complaint, penalty approximately $20,000.

    10/02 - Three inspections, the first was a complaint, it looks like the AO converted the complaint into two follow-up inspections, penalty approximately $6,000.

    7/08 - Two inspections based on a complaint, the proposed penalty was approximately $226,000, but the case settled for $80,000.

    4/09 - One follow-up inspection and a referral, proposed penalty of $356,000, plus $162,000 put back on one of the 7/08 inspections for Failure to Abate.

    Look at the penalties in order: 20k, 6k, 80k, 518K, it was a progression, it didn't come out of the blue, this company had been warned.

    This is generally how it works with small companies, and yet there's no reason for it, we spend almost 11% of our budget on Consultation Services, which is a free service to companies with fewer than 250 employees. Consultation will go to their site identify hazards, work with the employer to develop abatement plans and often time even write the companies S&H programs for them.

    And if that isn't enough, all anyone has to do is call us and ask a question! We don't have black helicopters. We're not going to start an inspection based on a question, there are enough employers who won't do anything that we aren't going to spend time chasing down an employer who is trying to do it right just based on a phone call.

    One other thing to think about, just because the company is small, does that mean the employees are less deserving of protection?

  6. From the horses mouth…
    The press release does not do the situation justice. What the press release does not do is tell you what allfeed was told to do by OSHA, what allfeed did and how OSHA punished us for following their lead.

    Osha purposely keeps their cards close to their vest so as not to get caught in administrative changes. All in all Osha is still a political beast.

    The first osha violations was long before com Dust and was for handling product commodity shed style the exact way it is still handled in every ship yard on both coasts and in many thousands of sheds across the country. The issues with dust in the past have always been repertory issues never explosion issues.

    When a small business does not have the funds to fight the almighty and fearful federal government you settle through and informal conference. By doing so the abatements are just ticking time bombs waiting to be brought up again as inadequate at the whim of federal pressure on the OSHA leadership.

    Allfeed has never ever been fined on any complaint. The complaints have always been unfounded and the citations for things that were found in 6-month investigations – you try to go 6 months with no mistakes.

    The safety and health are simply two bites from the same apple. When OSHA says “we know you have been bagging oat meal for 12 years but now it’s a CD and you are not set up for CD” the safety says you didn’t put up signs and then the health says, “Hey with the signs comes the frc”. Every safety has a health – they almost read exactly the same and are the exact same violation with two different citation numbers.

    Osha told us to put in more bag houses in 02 –we did they came through in 05 and no violations then in 08 the same bag houses were found in violation. Get your head around that.

    The progression was not a progression when one is for a skid steer and the next is for a bag house that falls under nfpa61 but sighted under nfpa 654. The only progression is as OSHA grows it gets more and more desperate as their requirements grow at a rate hundreds of times faster than they can keep up, so in true federal government fashion you tax what you don’t understand.

  7. jl
    you will be glad to know allfeed is now in 2 locations -the rail has always been contracted sites that commodity shed so we quit using them and now we are at 25 employees just hanging on - guess they showed us.... oh yea and the last inspection was in a facilty complety shut down not operating - abate that

  8. Sadly, that's what happens when you seek enforcement, enforcement, enforcement. Sounds to me that it would be better for ALL parties involved if OSHA had spent their time helping companies like AllFeed to be safe than shutting them down with fines.

  9. OSHA and NIOSH need to work in concert together as the OSH Act intended. Currently NIOSH has the NORA National Occupational Research Agenda where just recently the agency sought comments on the National Manufacturing Agenda NIOSH Docket 184

    The sector based approach that develops strategic goals for the nation's manufacturing sector is an excellent example of research, education, information, and outreach concerning occupational health and safety. OSHA needs to liaison more closely with NIOSH so as to combine their resources in reaching out to small businesses.

  10. Sadly, All-Feed didn't call 1-800-972-4216, that's the Illinois Onsite Consultation Program, they could have helped All-Feed fix their problems before OSHA showed up, or after OSHA showed up the first time. Or the second time. Or the third time. All they had to do was ask.

  11. I'm a bit confused Abel when you mention about calling for help. OSHA told Allfeed to put in more bag houses in 2002 and they we did. So in 2005 OSHA returned and no violations. Yet in 2008 the same bag houses were found in violation. What sort of assistance is this, when OSHA tells a facility to add baghouses, then six years later cites a facility for an action that OSHA told the facility to comply with, in which Allfeed did?

    I think what all this is about, is that Allfeed requested that OSHA produce a warrant to inspect in the most recent inspections. That's where I believe the high fines arose from, in an attempt to close the facility down. This is OSHA's way of setting an example to all small businesses to think twice before requesting a warrant for OSHA to inspect a facility.

  12. I'm from the Government and I am here to help you!

  13. John, I don't know the case, I haven't seen the case file and I haven't talked to the CSHO. I have, however, heard the same thing from a thousand employers, and it's even possible that one or two of them were right, but citations like this don't come out of the blue, there's a history here that we don't see and I'm skeptical of an employer with that kind of citation history.

    Keep in mind that something like 30% of all of our inspections are in-compliance inspections. I've been on sites, in some damned dangerous industries, where I felt perfectly safe, the kinds of places that I would be willing to work all day myself, and I'm pretty demanding. The companies that get it, get it. The companies that don't, end up as sig-cases.

    As for the warrant, we have to get warrants all the time, they really aren't a big deal, it's a little paperwork and some time. I know of companies that require a warrant as a matter of company policy, and that's fine, it really doesn't impact the inspection beyond delaying the start.

  14. Abel, thanks for the insight concerning warrants for OSHA inspections. I didn't realize that OSHA utilizes them regularly.

    I'm still learning but what is an in-compliance inspection? In the OSHA IMIS database, I've seen Planned, Referral, Prog Other, Complaint, Unprog Rel, FollowUp, and Accident.

    Concerning a history, after the 02 visit, the facility complied with installing more baghouses. Yet in 08 the same bag houses were found in violation. It seems everyone was on the learning curve here. Especially the CSHO's that received specialized training on ComDust following the 2007 issuance of the ComDust NEP. Back in 2002 many CSHO's had no specific knowledge in identifying and evaluating ComDust fires and explosion workplace hazards.

    In 2008, OSHA sent out 30,000 letters to businesses on ComDust Hazards. What about the tens of thousands of facilities like this one that didn't receive a letter? I'm not saying that not receiving a letter is a free pass. It just illustrates that more outreach, education, information, and training needs to be pursued. As the OSH Act mandated, OSHA working with NIOSH in parallel, concerning occupational health and safety can help achieve these goals

    Just as much if not mote emphasis in reaching small business should be done as the specialized training that CSHO's received recently on ComDust. There needs to be balance. These small businesses, which Secretary Holis is referring to, is not corporate America that has full-time EHS professionals on their payroll

  15. John, in-compliance (IC) inspections are the inspections you listed, it's just that there were no violations found.

    Again, I'm not familiar with the case, but thinking off the top of my head, it's possible the bag house was cited because equipment wasn't maintained to manufacturers specs, or the dust was allowed to accumulate, or...

    As for OSHA doing outreach, that's for another post, but I'll say it again, we fund the OSHA Consultation Program which is specifically charged with helping small employers, the help is out there.

  16. Every sig case I sent or even saw that made it past region to national either came back at that dollar amount or got more tacked on. NO has never been the problem. Now if you talk to the folks at the Regional Offices. . . they shoot more down than the Red Baron.

  17. Abel, thanks for the in-compliance (IC) inspection definition. I hadn't realized that nearly one out of every three inspections were in compliance.

    I agree that OSHA outreach would be best for another post since this thread started on sig-cases. OSHA Consultation Services is an excellent resource for small businesses. Problem is, how would a small business even know if they need consultation for combustible dust fire and explosion hazards? It was just in the last two years that OSHA fully understood combustible dust fire and explosion hazards and subsequently provided specialized ComDust training to CSHO's in conjunction with the ComDust NEP.

    One solution in bringing awareness to small business on ComDust Hazards is for OSHA to work closely with the U.S Fire Administration's National Fire Incident Reporting System (NFIRS)and local fire departments. Over 80% of ComDust incidents are fires, many repeatable.

    Through OSHA outreach via the national, state, and local fire service, small business can obtain a proactive awareness of combustible dust fire and explosion hazards in their workplace, thus reducing future sig cases.

  18. Abel
    For the record -
    The help is not necessarily always "out there"

    OSHA told All-Feed that compliance assistance is not an option during "open investigations" which includes the amount of time it takes to abate OSHA citations. Tack on 6 months for the actual investigation and it is a revolving door of pain. In fact, I have been told by OSHA that a case is not closed until all fines are paid regardless of whether or not the citations have been abated. So, if you plan on doing a payment plan realize that the revolving door doesn't stop spinning until the last nickel is paid.

    So, since 07/08 All-Feed has been in OSHA's hurt locker...and before 07/08 All-Feed was around 20-25 employees. As All-Feed then began to grow to around 50 employees, during the investigation, compliance assistance was not an option.

    Furthermore, OSHA does not confirm whether or not an item is actually abated so it can be difficult to stop the revolving door. It is more like a pass fail thing from what I've gathered. If and when you've paid all fines and they close the case then you know you abated the items. They'll make suggestions, and lend their opinions but won't come out and say "yes, that item has been abated". One of the ways that they let you know that you haven't abated something to their standards is by issuing a failure to abate. So essentially, you know it's not good enough when they fine you again.

    If you are cited by OSHA do in a grand scale what many employers do on a small scale when OSHA shows up: shut down and send people home.

  19. if the in compliance rate has shot up to 30% from around 20% (a 50% increase) then that would imply that the new administration (ie: solis, obama, michaels/barab) are incompetent or outright antibusiness. Why? .... going from being fairly good at identifying sites with potential violations to not being able to do so. Either that OR the admin is outright looking to harrass small business. which is it? Incompetence or vengeance?

  20. WOW. That is one heck of an allegation -- big fines because they requested a warrant. I doubt that to be true. If it were, I would love to be on the receiving end of that case. I'd personally sue each and every government employee who ever so much as put eyes on my case file! I wouldn't sue OSHA... I'd PERSONALLY sue the CSHO, AD, RA, RSolicitor, National Office personnel, and on up.

    Employers, just like workers, have rights. And someone telling me that exercising those rights is a civil offense / crime (by virtue of the penalties), well, I wouldn't have to work another day in my life thanks to those agency employees who tried to quash my rights. I'd have a field day! Not to mention seek criminal charges against them too.

    That's like telling a cop to get a search warrant and then them planting evidence everywhere to trump up more charges.


  21. The 30% in-compliance rate is the number I've been told since the Reagan Administration, it may fluctuate a little bit year to year, but I've never heard any other number.

  22. C'mon Abel, you know there are ADs out there that go ballistic when an employer requests a warrant. You know there are CSHOs out there (the ones who watch too many police dramas) that threaten companies with the Wrath of God if they ask for a warrant.

  23. RT you're right, there are ADs and CSHOs who go over the top. OSHA has the same demographics as the rest of the country, so we have our share of jerks too. But like with country as a whole, my experience says the jerks are the exception and not the rule.

    John, thanks for the follow-up, those numbers look about right, I would guess that about 1% of our inspections require a warrant. I realized after you posted that what I wrote made it sound like we get warrants in our office everyday, which isn't accurate, so I apologize if that's the impression I left. Warrants occur frequently enough that most of us know the process and to me it isn't a big deal.

  24. Newsflash gentlemen - If just 10% of all employers visited by OSHA required a warrant it would bring the Agency to its knees. Taken a step further, if employers were instructed to politely but mutely accompany OSHA on the walk around, it would basically cripple the agency's ability to write sig cases involving "willfu". OSHA continues to use employers good faith efforts to comply AGAINST THEM and some employers are going to wake up

  25. How about this? (based on my over 30 years of on-site OSHA inspections) The cooperative employers risk getting hammered by OSHA fines and penalties. The real bad actor companies refuse entry, send employees home on day of inspection and shut down dangerous operations during the inspection, do dangerous work on weekends when OSHA inspectors are usually off duty, refuse to talk to inspector, employees instructed by employer not to talk to inspector, or they close the cited corporation and open up a new corporation across the street. Bottom line, cooperate with government and you risk getting crushed and if you fight the government and are just a little innovative, you have a fair chance of sidestepping big government and getting away with actually sometimes murder. Those are the facts folks! OSHA only continues to exist because of the cooperation of most employers. (i.e. the ones that often get hammered-how ironic!) If employers ever band together and cease cooperating with OSHA then OSHA is history.

  26. Not a bad idea for some of the associations to promote with their members! I mean, if KSM, panty-bomber, etc can get lawyered up then why not companies who are getting dinged for trying to do the same thing (EXERCISE THEIR RIGHTS)?

  27. For the record - our OSHA reps went BEYOND ballistic when we requested a warrant. They called and tried to talk us out of it threatening jail and the like. Then they made false allegations to ensure that the judge would have no chance of questioning it.

    Way to respect our constitutional rights.

  28. More good stuff. If your OSHA fine is below a certain amount. Can vary from Region to Region. OSHA attorney's WILL NOT take it to court if you contest the citation unless a major legal principle is at stake or a fatality investigation. Too much trouble for attorneys and they are overloaded with work So "small fines" in the thousands usually will not go to court and government attempts to get employer to voluntarily pay something. It is rarely pursued beyond that and turned over to a collection agency that calls you for a while then gives up and eventually written off by the government. Many small employers get OSHA citations and fines, ignore them, and go on about their business. OSHA does not want the bad publicity of crushing a small employer in the national news over a monetary penalty from a possible petty citation. Nearly 1/2 of OSHA fines are never collected by the government. Inquiring minds want to know.

  29. anonymous,

    where did you get this info about 1/2 of all osha fines not being paid?

  30. Check it out! Be a detective!

  31. Misleading comment above. Be careful. The Feds collect the vast majority of the fines that are settled. The Feds collect about 1/2 or maybe even a little less of what is PROPOSED. Thats because of settlements, etc.

  32. My sentiment remains.... I pray that a wackjob inspector tries to give me major fines after I asked for a warrant. I will OWN not only their house, but the AD, RA, Department lawyers, on up.

  33. There are a few whackjobs out there, I've seen them. But the vast majority of CSHOs are just normal people who get paid the same whether an employer requests a warrant or not. It's their right to do it. But, on the flip side, I've seen many CSHOs feel guilty about issuing citations to nice people. Some, like me, had to develop elaborate systems to at last lamely attempt objectivity.

    Back on topic - the Solicitor's office is the gate that controls the number of sig case.

  34. Over the past 25 years, I've had 10 sig cases. Five have been against small employers. And every single one of those five small employers had one thing in common - they blatantly employed undocumented workers.

  35. The Adminstration assumption that doubling or tripling OSHA fines(as proposed in OSHA Reform Bill) will lead to greater compliance of OSHA regulations is FALSE. The idea is to have SIG cases(over $100,000 fines) and to put the cases in news releases to SCARE all the little employers into complying.(Unions love this) IRS does same trick with tax penalities of famous people in the news. Following this logic to prove its fallacy, if all OSHA violations led to the legal government execution of the company president or CEO then there would be almost no OSHA violations found anywhere by OSHA inspectors. Since even that extreme measure would not work, the fallacy of the assumption is revealed. This Rule by Intimatidation is how a Tyranny runs a country and not a Democracy.


  37. Well, it appears that things are about to get orders of magnitude worse from every conceivable perspective.

    How can anyone in their right mind vote to confirm someone who may, at the least, be referred to Justice for purgery? Unbelievable!