Be Prepared for the ‘Big One’
At NASCAR’s Talladega, Pocono and Daytona superspeedways, there is always talk of the “Big One.” The Big One is a wreck that frequently characterizes those three-hour, 200-mph, 42-car races on a three-lane-wide oval. Of course, there have been superspeedway races where the Big One didn’t happen. Numerous racing organizations go years without getting caught up in a superspeedway Big One. Sometimes it’s attributed to luck. Other times it’s chalked up to preparation, planning and skill. When the Big One does happen, it’s usually because somebody messed up. Sometimes the person who messed up takes out lots of other people who weren’t messing up. They were just out there doing their jobs.
Whether you are a racing fan or not, you probably already figured out that there are some parallels between racing and utility work. We work in a fast-paced, intense industry. We employ highly skilled craftspeople with demonstrated skills. We have specialized equipment designed with safety in mind to complement the skill of the operators. We also have systems in place to minimize or even prevent injuries if something does go wrong. Still, be it luck or planning, we think we have everything covered – and something still goes wrong. There are obvious differences between racing cars and building power lines, but you likely understand where I’m going with this.
One Big Difference
Here is one big difference you may not have thought of: When cars collide at Talladega or any other racetrack, OSHA doesn’t show up and neither do lawyers (unless they are there to watch the race). I have been consulting as an expert witness for two decades, sometimes as the plaintiff expert but most times as the defense expert. My job is to explain work methods, training requirements and statutory requirements, as well as what happened and what went wrong. I get deposed by lawyers and questioned by judges, and I address juries when a Big One happens. The goal is to explain the details in such a way that the lawyers, judge and jury clearly understand them, with the ultimate goal of a correctly rendered judgment.
In my experience, and with a few exceptions, the great majority of employers have been unprepared for the Big One, especially when it came time to defend themselves against OSHA and in civil litigation.
A couple years ago, I worked on a fatal case where the employer was accused of negligence both by OSHA and the family of the deceased. I was there the day after the incident and investigated with the OSHA compliance officer (CSHO). We talked. He was very forthcoming and said, “I hate to see an employer do everything right and end up with a fatal incident due to employee misconduct.” The OSHA regional director did not agree with the CSHO, rejecting his findings and citing the employer for six violations. Four of them were outrageously misapplied; the other two were complicated but defensible. The employer, a contractor, was immediately dropped by their insurer. It took a year to get to the Occupational Safety and Health Review Commission, the administrative federal judge that decides final employer-contested OSHA citations. A year after that, we were in superior court for the negligent death claim. The defense was successful in both cases, one before a federal judge and the other in a civil case before a 12-member jury. The employer was working to do everything right. They invested in safety training and strategies for their frontline crews. They had a robust safety group on every job site. They now invest more time in training their supervision. This is just one instance; there are many more like it. It’s a terrible thing to lose an employee or a co-worker. It’s even worse to face blowback from that experience for several years. Trial lawyers are often harsh on co-workers, supervisors and executives. But most of the issues I see are common, and with the right preparation, much of that blowback can be avoided.
Before we move on, I want to deliver a message to readers who think this is only about protecting the employer: Disabuse yourself of that notion. “Employer and employee, protect one well and both win!” is a maxim I have taught for a long time. If the employer meets the requirements of the OSHA standards and the law, they create a safe workplace for the employee. If workplace safety is properly conducted, the employees are protected, and the employer is shielded from unfounded accusations of negligence or legal noncompliance.
Learn Everything You Can
You need to learn everything there is to know about OSHA, especially how the agency operates and what to expect if they come to your job in an enforcement action. Here is an important concept: Employers who know OSHA often head off trouble because they know what to expect, they know the questions that are going to be asked, they have the documentation that will be asked for, and they know the language of the statutes that drives what OSHA expects to hear. In essence, if you know OSHA, you have a very good chance of clearing up misunderstandings at the closing conference on the site before the citations arrive in the mail. If you can’t accomplish that, your next opportunity is the informal conference. That’s where consultants and lawyers who do know OSHA are brought in. Don’t be afraid to contest local OSHA actions. The OSHA standards are fair, and the procedures are effective. The problem is that they are executed on the local level by people – and people make mistakes. Contesting an action brings the dispute into the legal definition of evidence and legal examination. Always request the informal conference and get an experienced consultant or lawyer to represent you. On many occasions, I have spent hours of research and testimony to prove that OSHA’s uncontested actions were misapplied or even contravened OSHA’s own policy and interpretations.
The informal conference takes place before the regional OSHA area director and follows the OSHA directives to regional directors contained in what is known as the Field Operations Manual, or FOM. The FOM is Compliance Directive 02-00-164 (see www.osha.gov/enforcement/directives/cpl-02-00-164). The informal conference is your first opportunity after citations are delivered to explain why the citations are in error and to argue your case. This is where you get to present evidence that supports a reduction in the classification of the citations, vacating of a citation or reduction of assessments. Don’t pass up the informal conference, and don’t go to an informal conference unprepared. Most importantly, don’t go to an informal conference without knowing the OSHA rules as well as the rules for the employer and the regulations in effect. Lastly, don’t go to an informal conference unwilling to formally give notice of the intent to contest the violations.
Train Your Supervisors
This issue of Incident Prevention includes an article written by Pam Tompkins of SET Solutions. After reading the article prior to its publication, I asked Pam about her choice of topic, which is the employee in charge. As a consulting company, SET Solutions consultants have seen too often how lack of supervisor training contributes to incidents in the field. I’ll go a step further. As an employer or a safety professional, you can have every required policy perfectly devised and clearly written. However, the policies are useless if your supervisors don’t own them as you do. This is not an exhaustive list, but how many of your supervisors can pass a simple test on the OSHA requirements for the following: gas welding and cutting; PPE use, including application, maintenance, inspections and limitations; equipment operation; powder-actuated tools; respiratory and hearing protection; fall protection; hazard communications (GHS); electrical safety; confined space and trench safety; emergency action plans; fire protection; ropes, chains and slings; hazardous atmospheres (H2S); switching and tagging; equipotential grounding; and insulate and isolate work methods? I can almost guarantee that in litigation, your crew supervisors will spend more time in depositions and on the stand than any other official in your company. They are that important and worth every dollar you spend training them.
I have heard it said that the written tailboard form never made a job safer. I agree. It’s the quality discussion and overall experience of the tailboard meeting that employees can relate to, and that’s what makes a difference in the safe performance of a job. However, during litigation, I have spent more time examining every letter, scribble, jot, tittle and note on tailboard reports than I have examining almost any other exhibit. I have also actually heard OSHA experts say in depositions and at trials that they can tell a tailboard process was ineffective because of the nature of the notes on the tailboard record.
When I investigate an incident, I ask for and review the previous five weeks of daily tailboards. I’ve gotten pretty good at imagining the discussions based on the forms, but I gain a better understanding of a tailboard’s quality when I interview the crew members. I hear all the time that if you don’t write it down, it didn’t happen. Oddly enough, if you don’t have a written record of a conversation, that doesn’t mean it didn’t happen. OSHA does not require employers to retain records of tailboard forms or what is often called a job hazard analysis (JHA). That’s because OSHA knows that an abbreviated form lacking a complete verbal record cannot effectively reflect the content of a conversation. I have frequently advised employers to use the forms effectively in this way. First, maintain a written policy on tailboards and tailboard records. Develop an effective form that guides the conversation; turn in forms daily; have supervisors review the forms and follow up on any questions; and throw away the forms at the end of the week. I know it sounds preposterous, and OSHA will ask for JHAs when they show up on-site. I also know that if you show them your procedure and tell them you don’t retain them, you will never hear about it again. They will simply ask about the daily pre-job safety meeting with each employee they interview.
Contemporary tailboards that have evolved from the hazard analysis wheel and involve a cellphone video of the daily tailboard process have been effective in promoting the quality and effectiveness of the process and don’t require filling out a form at all. Just remember this: Whatever records you keep will have to be defended in some form or fashion, so they better be well-advised. The best way to do that is to train your personnel in how to properly execute your hazard analysis and fill out the forms so that they are valuable as a safety tool – not a tool to work against you. The best part is that if the JHA program is good, you most likely will not have to defend it in court.
Train Your Employees
I am currently consulting on two lawsuits. In both, a non-utility construction worker was fatally injured when they contacted energized power lines. The two cases are 3,000 miles apart. In the depositions, we learned that the injured workers both had some 20 years of experience in their skilled crafts. Neither of them was fluent in English, nor did they have any idea that what they were about to do was going to kill them. Of course, these are extreme cases, but if your line, substation or generation personnel are only craft skilled, not safety skilled, what’s the difference? I have worked on many fatal cases at this point in my career. When I get the call and hear the preliminary description, I am often amazed at what transpired. Lest you assume these are all fly-by-night contractors, they aren’t. They are investor-owned utilities, municipals, cooperatives and well-known national contractors, both union and not. It doesn’t matter why things are this way; what matters is fixing it. If you are following the OSHA guidelines on safety training, you won’t see your crew members sitting through five hours of depositions and two hours of court explaining why they didn’t know this or that. If you train them, that litigation won’t occur because the Big One won’t happen.
I always try to answer this question when I audit an employer’s safety program: Why do they have the frequency rate they do? Is it about luck and managing data, or is it programmed into the workplace with good training, good supervision and good practices? You should be asking that same question of your workplace – because if the answer is “luck,” luck can run out.
If you are a safety professional, I advise you to read, read, read. Learn everything there is to know about OSHA and the acceptable work practices our industry employs. Then teach your frontline supervisors and managers everything you know. Maybe if I see you on the job, it will be about consulting or training and not about trying to keep you out of a multimillion-dollar claim that you are not responsible for.
About the Author: After 25 years as a transmission-distribution lineman and foreman, Jim Vaughn, CUSP, has devoted the last 24 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 firstname.lastname@example.org.
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