Adequate Training for Employees Under the General Training Requirement in the Construction Industry: Secretary of Labor v. O’Brien Concrete Pumping, Inc., OSHRC Docket No. 98-0471

Date: Apr 01, 2000

More often than not employers will receive citations for failure to properly train employees, in addition to other citations, when an OSHA inspection is the result of an accident or fatality. The theory is that if an accident happened, the employer could not have properly trained its employees, making the employer a guarantor of safety on the worksite. The recent case of Secretary of Labor v. O'Brien Concrete Pumping, Inc., OSHRC Docket No. 98-0471, gives some insight into what the Occupational Safety and Health Review Commission considers adequate training for employees under the general training requirement in the Construction Industry standards in Title 29, Part 1926, of the Code of Federal Regulations.

O'Brien Concrete Pumping specializes in delivering concrete to construction locations that are inaccessible to traditional concrete mixing trucks. Concrete is placed inside a large hopper located at the rear of each of the concrete pump trucks used by O'Brien and mixed by rotating steel auger blades located inside the hopper. A pump then draws the concrete into a long retractable tube known as an "extension boom", which is used to direct the concrete into the area in which it is to be poured. After pouring concrete at a construction site in Erie, Colorado, a concrete pump truck operator for O'Brien was asphyxiated when he was crushed by the rotating auger blades located inside the hopper of the truck. There were no witnesses to the accident.

OSHA subsequently issued three serious citations for violation of the training, machine guarding, and lockout/tagout standards. The Administrative Law Judge vacated the training and lockout/tagout violations, but affirmed the machine guarding violation. The Administrative Law Judge found that O'Brien had proved the requisite training through the various aspects of its safety program. OSHA then sought review of the decision by the Review Commission.

To prove a violation of Section 1926.21(b)(2) for failing to adequately train employees, OSHA must show that the employer failed to instruct employees on (1) how to recognize and avoid the unsafe conditions which they may encounter on the job, and on (2) the regulations applicable to those hazardous conditions. OSHA contended that O'Brien's training on safe hopper cleaning procedures, and specifically, the hazards associated with running the auger blades with the hopper gates raised, were inadequate under the requirements of the standard.

The Review Commission agreed with OSHA and reversed the Administrative Law Judge's finding which vacated the training citation. The Review Commission stated that the content of the training is what is important, not merely that training was provided. In addition, the Review Commission specifically noted that the sufficiency of an employer's training is not measured by the employees' subjective assessment of the adequacy of the training provided.

In this instance, the evidence showed that virtually all of the interviewed employees stated that O'Brien provided them with on-the-job training. However, in the Review Commission's judgment, the regulation required that O'Brien do more than merely train its employees; it must train its employees on specific point of operation guarding requirements. The Review Commission found that O'Brien left each truck operator to develop his own cleaning method based upon the procedure he had been taught by a fellow operator. The Review Commission gave little weight to the fact that O'Brien's safety manual, which was distributed to each employee, generally warned that contact with the rotating blades could cause serious injury. The Review Commission at least implied in its decision that although the employees were warned generally about avoiding contact with the rotating blades, the focus of the Commission's dissatisfaction with the employer's training was the fact that specific cleaning procedures were not provided, the protective grate was routinely removed by the employees, and that cleaning procedures were developed and handed down by the employees themselves using the traditional -"on-the-job" training method.

There was also testimony that O'Brien conducted monthly safety meetings and provided training by a representative from the concrete pump truck manufacturer on pump operations at an annual two-day program. Representatives of O'Brien testified that at the monthly safety meetings they discussed information about industry accidents, including accidents where employees have fallen into hoppers. O'Brien also showed employee training videos developed by the American Concrete Pumping Association. The Commission discounted these training exercises as failing to provide any specific instructions related to guarding the auger blades or to cleaning the hopper.

The Review Commission was equally unimpressed by O'Brien's evidence that it supplied its employees with the company's safety manual, the manufacturer's instructions for operation of the pump truck, the manufacturer's safety manual for the pump truck and the American Concrete Pumping Association's safety manual. In addition, the evidence showed that O'Brien required its employees to affirm in writing that they had read and understood these various manuals. The Review Commission apparently discounted these efforts by O'Brien; four out of ten employees stated they were unaware of the manufacturer's requirements for safe operation and cleaning, and one employee admitted that he probably never read the manuals provided to him.

Finally on the issue of training, the Review Commission noted that it did not consider dispositive the fact that none of the employees who were interviewed expressed dissatisfaction with the training they had received from O'Brien. The sufficiency of an employer's training, according to the Review Commission, should not be measured by the employees' assessment of its employer's safety training program. What matters is the content of the training and, in particular, whether it specifically addresses both the hazards associated with their work and the OSHA standards applicable to the work being performed.

Unfortunately, the Commission's decision was made without an adequate understanding of certain facts and by ignoring others. Eight of the nine employees interviewed by OSHA stated that they were instructed not to run the augur with the grate removed, and it was clear that the company had a policy against running the augur with the grate up; this policy was acknowledged by at least one of the employees. Thus, it is clear from the reported testimony of the employees that they understood the hazards they encountered. This testimony suggests that the grate did not have to remain in place with the augur running for cleaning. Nor is it clear what the physical arrangements were, whether the employee would have to make a significant effort to reach into the augur, how fast the augur moves, exactly how the employee who was killed became entangled in it, and whether proper cleaning could be done safely with the grate removed. OSHA's position is based on the logical fallacy, ergo hoc, propter hoc, or the occurrence of the accident proves the existence of the hazard. Neither the Commission nor the Agency satisfactorily answered the question of how the accident happened.

Thus, the Review Commission's decision and OSHA's position appear to set a higher and arguably unreasonable standard of care. First, OSHA and the Commission have in this case essentially negated Section 5(b) of the OSH Act, which requires employees to comply with all OSHA regulations and with the employer's safety requirements. By discounting the fact that the employees ignored the training requirements imposed on them to become familiar with and, at the very least, to read the manuals provided, the Commission gives license to employees to disregard an employer's rules. This is the major deficiency of the current Agency posture on employee compliance with OSHA requirements, and is at war with reality. Safety professionals in recent years have focused on understanding and affecting employee behavior that disregards safe procedures and fails to take safety into account in their actions. OSHA remains mired in the 1960's mentality of "fixing" the workplace instead of understanding the causes of accidents and addressing them. Employers will continue to find it difficult to get employees to work safely as a matter of habit if the government sanctions employee disregard for safety rules by not holding them equally responsible for compliance with OSHA regulations.

Secondly, the hazard these employees encountered in the task in question is transparently obvious to anyone. Because of the lack of facts about the cleaning process and the physical arrangements of the augur and grate, it is not possible to determine whether special procedures or training are necessary. OSHA should have been required to prove, rather than assume, that because there was an accident, employees were not properly trained. Lacking this kind of information, the only message employers can take from this case is that, if an accident occurs, OSHA will assume that the employer's training was inadequate.

This article appeared in Compliance Magazine (April 2000) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.