At NASCAR’s Talladega Superspeedway, Daytona International Speedway and Pocono Raceway, there is always talk of “The Big One” – a wreck that often characterizes the three-hour, 200-mph, 40-car races on three-lane-wide ovals. Of course, The Big One doesn’t happen at every race, which could be due to luck or preparation, planning and skill. When it does happen, human error is almost always the cause. Sometimes, The Big One injures or kills people who were simply trying to do their jobs.
Whether you’re a NASCAR fan or not, you’ve probably noticed some parallels between racing and utility work. Our intense, fast-paced industry employs skilled craftspeople. Operator skills are complemented by specialized equipment designed with safety in mind. We’ve implemented systems to mitigate injuries should an incident occur. Yet there are also obvious differences between racing cars and building and maintaining power lines. One big difference is that neither OSHA representatives nor attorneys show up at a racetrack after a collision.
As a utility industry consultant who has provided expert witness services for over 20 years, mostly for defendants, I am frequently deposed by lawyers and questioned by judges after The Big One happens. My role is to clearly and comprehensively explain work methods, training criteria, statutory requirements, and the incident’s root causes and conditions so that lawyers, judges and juries understand them.
Few Exceptions
With few exceptions, my experience indicates that most employers are unprepared for The Big One, especially in terms of defending themselves during OSHA proceedings and civil lawsuits. For example, I worked on a fatality case several years ago in which OSHA and the deceased employee’s family accused the employer of negligence. When I visited the jobsite the day after the incident to investigate with the OSHA Certified Safety and Health Official (CSHO), he was very forthcoming, telling me, “I hate to see an employer do everything right and end up with a fatal incident due to employee misconduct.”
OSHA’s regional director did not see things the same way, rejecting the CSHO’s findings and citing the employer for six violations. Four were outrageously misapplied; two were complicated but defensible. Because the employer was a contractor, the company’s insurer immediately terminated their policy. It took a year for the case to wend its way to the Occupational Safety and Health Review Commission, which makes final determinations regarding employer-contested OSHA citations. A year after that, we were litigating the negligent death claim in superior court.
The employer successfully defended themselves in both cases. The reality is that they were striving to do everything right: investing in safety training for frontline crews, assigning a robust safety group to every jobsite and committing additional resources to supervisor training.
Readers should note that this is one instance among many. An accidental death is a horrible event commonly exacerbated by legal blowback that drags on for years. Trial lawyers can be harsh when examining a deceased employee’s former coworkers. The good news is that most of the issues I see are common, which means employers can largely avoid legal blowback with the right preparation.
And lest you think this discussion is solely about protecting employers, “Employer and employee, protect one well and both win” is a maxim I have taught for years. An employer that complies with OSHA standards and all other legal requirements creates a safe workplace for the employee. In turn, adequately protecting employees shields the employer from unfounded accusations of negligence or noncompliance.
Closing and Informal Conferences
It is in your best interest to learn everything you can about OSHA, especially how the agency operates and what to expect if they visit your jobsite. Informed employers often nip trouble in the bud because they know which questions OSHA will ask, the documentation that will be requested and the regulatory language that drives the agency’s expectations. Knowing OSHA gives you a good shot at clearing up misunderstandings at the on-site closing conference. If that doesn’t happen, you’ll have another chance at the informal conference, which brings together lawyers and consultants with deep knowledge of OSHA standards.
Do not allow fear to prevent you from contesting local OSHA actions. Although the agency’s standards are fair and their procedures are effective, they are enforced by human beings – who naturally make mistakes. Always request an informal conference and retain an experienced lawyer or consultant to represent you. In my own consulting work, I have spent hours conducting research and delivering testimony to prove that certain uncontested OSHA actions were misapplied or even contravened the agency’s own policies and interpretations.
An informal conference takes place before the OSHA regional director and aligns with the agency’s directives to regional directors contained in the Field Operations Manual (see
www.osha.gov/enforcement/directives/cpl-02-00-164). It is your first post-citation opportunity to explain why the citation was issued in error, present supporting evidence and argue your case. Again, don’t pass up this conference, and be sure to prepare for it, which includes understanding the relevant OSHA rules.
Supervisor Training
Even the most perfectly devised employer policies are rendered useless if supervisors don’t own them. Here’s something to consider: How many of your supervisors could pass a basic test on OSHA’s requirements for the following: gas welding and cutting; PPE use; equipment operation; powder-actuated tools; respiratory and hearing protection; fall protection; hazard communication; electrical safety; trench and confined space safety; emergency action plans; fire protection; ropes, chains and slings; hazardous atmospheres; switching and tagging; equipotential grounding; and insulate/isolate work methods?
During litigation, lawyers will almost certainly spend more time deposing your crew supervisors than any other company officials. These supervisors are worth every training dollar we spend.
Tailboard Effectiveness
I have heard it said – and I agree – that a written tailboard form never made a job safer. Employees relate to quality discussion and the overall tailboard meeting experience; that’s what influences safe job performance. Still, during litigation, I have spent more time examining scribbles, jots, tittles and notes on tailboard reports than I have examining just about any other exhibit. I have also witnessed OSHA experts state under oath that they can tell whether a tailboard process was ineffective based on the notes written on the associated report.
During an incident investigation, my preferred approach is to request and review the employer’s tailboard forms for the last five weeks. I’ve gotten pretty good at imagining crew discussions, but I gain a better understanding of tailboard quality by interviewing crew members.
OSHA operates in a similar fashion. You may have noticed that the agency does not require employers to maintain records of tailboard forms or job hazard analyses (JHAs), recognizing that they do not fully capture crew conversations. To use the forms effectively, I frequently advise employers to establish a written tailboard policy. Develop a form that effectively guides the conversation; require forms to be submitted each day; task supervisors with reviewing them and following up on questions; and then discard the forms at week’s end. Yes, I know this might sound somewhat preposterous. I know OSHA will ask for JHAs when they arrive on-site. But I also know that if you explain your policy and tell OSHA you don’t keep the forms, they won’t mention them again. They’ll simply ask each employee they interview about the daily pre-job safety meeting.
Contemporary tailboard meetings that (1) are based on the hazard analysis wheel and (2) capture video of the tailboard process have improved meeting quality – and they don’t require any forms to be completed. Just remember that you will have to defend any records you keep. So, train personnel to properly execute hazard analyses and fill out all forms with the goal of making them valuable safety tools. A good JHA program is one you likely won’t have to defend in court.
Employee Training
Two different lawsuits I am currently consulting on focus on incidents in which a non-utility construction worker was killed due to contact with an energized power line. During the depositions, we learned that the deceased workers each had over 20 years of craft experience; however, neither was fluent in English. They didn’t know that their next move was going to end their lives.
These are extreme cases, but the point still stands: Your employees must be skilled at their craft
and in safety. I have investigated numerous fatalities at this point in my career and still find myself amazed by certain events that have transpired. The companies involved weren’t fly-by-night contractors either. They were investor-owned utilities, municipals, cooperatives and well-known national contractors.
It doesn’t matter why things are this way; what matters is fixing them. Following OSHA’s safety training guidelines means your crew members won’t be forced to sit through five hours of depositions and two hours in court explaining why they didn’t know this or that. With well-trained workers, there’s little chance The Big One will happen at all.
Final Remarks
There’s one question I always try to answer when auditing an employer’s safety program: Is their frequency rate about luck and managing data, or have they developed a strong safety culture built on good training, good supervision and good work practices? All of us must ask the same question of our own employers – because luck eventually runs out.
In closing, I advise all utility safety professionals to read extensively. Learn everything there is to know about OSHA and our industry’s acceptable work practices. Then, teach your frontline supervisors and managers everything you know. Hopefully the next time I see you at the jobsite, we’ll be discussing workforce training, not how to defend yourself in court against a multimillion-dollar claim.
About the Author: After 25 years as a transmission-distribution lineman and foreman, Jim Vaughn, CUSP, has devoted the last 28 years to safety and training. A noted author, trainer and lecturer, he is a senior consultant for the Institute for Safety in Powerline Construction. He can be reached at jim@ispconline.com.
