Why?

I got this comment last week, and the commenter asks a great question:

"Now we are getting somewhere! OSHA has actually had some great ideas over the last 30 something years, which even othre agencies have adopted and implemented. However, OSHA has often failed to benefit from its own insights. Why?"

Any ideas?

Abel the Shill

From a commenter:

Abel
You sound like a schill for OSHA. You point out OSHA problems but you defend OSHA always in the end. You are biased and have no creditability. You can delete this post since it is to you, but you have been revealed. You are 100% bureaucrat and apparently can't help it. You probably think HR 3200 would be a great health plan since the government would run things.

Amusing. Because I don't have an extremist view of the agency, I must be a shill. Because I acknowledge that we do some things right, I must be a shill. Because I know how to spell shill, I must be a shill. Very amusing.

I differentiate between OSHA policies and the people within OSHA, because I see OSHA as the sum of it's career professionals, not it's policies. I will freely criticize the policies, but not the career professionals. Policies and the "tone" of the agency are set by political appointees, but the career professionals are the ones who have to carry out those policies to the best of our ability. Even when we disagree with them, that's what it is to be a professional.

The career professionals in this agency have freely chosen a job that is hard, stressful, sometimes dangerous, and can involve a lot of days away from the family, because we believe in what the agency is trying to accomplish. Do you think it's easy interviewing a man who just a few hours earlier watched his best friend die? Do you think it's easy spending four consecutive weeks on the road, away from your family, your evenings dedicated to reviewing documentation in some rundown hotel? I can tell you from person experience, it isn't easy. But I'm not just talking about CSHOs, I know people in the ROs and the NO who are the same, many of them former CSHOs themselves.

If you can't see the difference between OSHA policies, and the people within OSHA, then I pity you. Am I still going to defend OSHA career professionals? Goddamn right I am, every one of them, every fuckin' time. If that makes me a shill, fine, I can live with that.

Lawyers - Redux

Part of a comment from the last post:

"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."

It was kind of buried in the last post, but I did say "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..." I probably owe the good attorneys an apology, because the commenter is right, we have some very good lawyers out there.

The advantage of time is that it gives you a little perspective. Over the years I have seen good attorneys come and go, and I've seen not so good attorneys come and stay. Over that same time I've had conversations with CSHOs from other regions (usually over a beer at the end of the day while attending an OTI course) and it's always interesting to see how their RSOL changes over the years (as does ours). We've all heard stories about how the attorneys in Region Z never take cases under $xxx to trial. Or how the attorneys in Region Y only take Wage and Hour cases. But wait for a few years and that seems to change.

Part of the problem is, as I mentioned in the original post, inconsistency. I recognize, and I hope everyone else does as well, that there is no such thing a perfect synchronization when it comes to S&H. But I do hope is that the new Assistant Secretary and the new Solicitor of Labor can get together and come up with something (an MOU, a joint statement, a directive, a memo, something) that better defines when RSOL will take a case to court and when they won't. If that means that CSHOs get more training from the lawyers on what constitutes a solid case, fine. If that means that the attorneys come out on a few inspections to see what we see, fine. Even if we all just sit down, have a beer together and discuss it, fine. Let's just do something.

Here's a second comment/question I want to answer:

I 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)?

To start, let's review Section 5(b):

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

It seems pretty straightforward, if you're an employee (like I am) you have to follow the rules too, just like the employer. But here's the rub, Section 9(a) of the OSH Act says OSHA shall issue citations to employers for violations, but it says nothing about issuing citations to employees. In other words, we can't cite employees for violations. That is why you see citations to employers for missing guards but not employees. Do we find situations where employees have removed guards despite the employers rule prohibiting it? Yes, not often, but it happens.

Employee misconduct is what's known as an affirmative defense. There are two catches to the affirmative defense, first the employer must prove the employee misconduct in court, second as part of the investigation we are going to defend against the defense. If you want some additional reading, Chapter 5, Section VI of the FOM discusses affirmative defenses (warning: that link is to a very large .pdf file that may take some time to download).

And finally, The Pump Handle has a post on potential OSHA legislation in the Senate, which is worth reading. Unfortunately, one of the things I think is most important, changing the laws that were written to specifically interfere with our standard making, wasn't addressed. I guess there's always next year.

Lawyers

It seems that we, as an agency, are sitting around holding our collective breaths waiting for an Assistant Secretary. With the nomination of Dr. David Michaels, and after having been stuck in neutral for almost a year (and something like 21/2 of the last 5 years), we're finally one step away from having some direction. For some of us who have been around for awhile, which direction isn't important, what matters is that we're moving, forward, left, right, heck even reverse is better than being stuck in neutral.

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:

1. 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.
2. If you tell me I'm missing something, don't forget to tell me why it's important that I have it next time.
   
3. 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.
4. I get that judges have different perceptions of what preponderance of evidence means, but a video makes things pretty clear.
   
5. 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.
   

Now, a riposte. CSHOs, this is purely anecdotal, but it seems to me that the cases that are the most likely to be carried forward to trial, are those where the attorney can actually find the evidence in the case file. If you put together sloppy case files, expect your cases to be treated sloppily. If you have a case that's contested, ask your AD if can take some time and layout the case for RSOL, that may mean rearranging the file, it might mean adding tabs and an index, it might mean writing a short summary of each violation that points out the evidence. In other words, make it so the attorneys can find what they need to defend your case.

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.

Poll

The newest poll is up.

I thought the latest poll results were interesting, the "None" response had more votes than "Big" and "Huge" combined. It's too bad the polls don't allow for some minimal demographics. I would bet Jordan Barab's salary that most, if not all, of the OSHA people who voted for Big or Hugh changes had less than 10 years with the agency.