Employee Training on Workplace Hazards: Secretary of Labor v. American Sterilizer Company, OSHRC Docket no. 91-2494, Nov. 5, 1997

Date: Mar 01, 1999

Dan Troy, a utility technician for the American Sterilizer Company (AMSCO), was responsible for cleaning sterilizing equipment at AMSCO customer locations. He used an abrasive blasting process to clean the interiors of small sterilizer units, some 20 inches square and 36-38 inches deep. Depending on whether he used a large or a small blaster, he would use either a full face or half mask respirator. Glass beads were used as the abrasive and a small containment was constructed at the opening of the sterilizer to control the dust generated by the cleaning process.

Dan had been trained in the use of the respiratory equipment both in formal training and in on-the-job training with a more experienced technician. His supervisor frequently discussed the hazards of blasting with a respirator, and particularly with regard to the hazards of using gasoline-or diesel-powered compressors. The dangers of carbon monoxide and its generation from gasoline powered generators were specifically discussed. AMSCO also had a policy requiring that Troy use the gasoline compressors for the blasting machine and use a separate breathing air compressor in the room where the blasting was to be done to avoid the hazards of carbon monoxide in the breathing air line.

Unfortunately, Dan did not follow company policy on the use of the gasoline compressors, and on his last job, attached his breathing air line to the same line as the blaster. Carbon monoxide in the air line overcame him while he worked alone on a midnight shift, and he died from the exposure. As a result of the fatality, the Occupational Safety and Health Administration (OSHA) cited AMSCO for violations of the respiratory protection standard, 29 C.F.R. § 1910.134, as well as for failure to include gasoline and its hazards in its hazard communication program.

OSHA alleged several violations of the respirator standard. First, OSHA cited AMSCO for general violations of the standard, the essence of which was a failure to provide adequate training in the hazards of using supplied air respirators. The Administrative Law Judge (ALJ) upheld the citation because he concluded that Troy had received formal training only once over two years before the accident. The Occupational Safety and Health Review Commission (OSHRC) rejected the judge's conclusion, because the evidence showed that Troy had received continuous instruction on the specific hazards of carbon monoxide poisoning if he did not use a breathing air compressor over his entire tenure with the company. Indeed, the employee who trained Troy on the job and Troys immediate supervisor testified that they had repeatedly discussed these hazards with Troy and had talked extensively about safety procedures, appropriate work practices, and the hazards involved in the job.

It is unusual for the OSHRC to reverse the factual findings of an ALJ. The ALJ has the opportunity to see the witnesses testify and to judge their credibility first hand. Only where the Commission (or indeed, any appellate court) determines that the judge or jury could not reasonably have reached his stated conclusions will the ALJ's decision on the facts of the case be overturned. Here, OSHA did not rebut the testimony of the company's witnesses as to the training or knowledge that Troy had received. OSHA preferred to infer that, because Troy died from carbon monoxide, the training he received about its hazards was inadequate. Indeed, there was testimony from another AMSCO employee about how Troy set up his last job that showed he knew the hazards of carbon monoxide well; he had changed the location of the compressor from a courtyard to a parking lot, after he expressed concern that there was a lack of airflow in the courtyard. Accordingly, the Commission concluded that the ALJ could not have reasonably concluded that Troy lacked training about the hazards of the use of an airline respirator.

It was the company's practice to borrow equipment from the customer when it was available, as was often the case. Here, Troy also asked about an electric air compressor to supply his breathing air, and he was told that one would be available from the carpenter's shop after the end of the carpenter's shift. When he was found, however, the airline respirator was connected to the gasoline compressor line in "T" assembly, and no breathing air compressor was in use.

No one knows why Troy did not follow instructions and company rules that he so clearly understood. The evidence is unequivocal that he knew about the hazards of carbon monoxide and the need for a separate compressor for his breathing air. The equipment was available for his use. Perhaps he decided that it would not matter "just this once" to bypass safety procedures that were well known to him. Whatever the reason, his failure to follow the procedures cost him his life.

The citation for failure to comply with the respirator standard related to Troy's training was vacated. However, the company did not escape unscathed. OSHA cited the employer for a failure to test the compressor air and for use of unapproved equipment. AMSCO defended on the understandable grounds that Troy's conduct was unpreventable misconduct. The Commission rejected the defense.

To prove the defense of unpreventable employee misconduct, the company must show that it has a relevant policy, that the policy is communicated to employees, that regular inspections are conducted to assess employee compliance with the requirements, and that employees who fail to comply are disciplined. Here, Troy worked on his jobs essentially alone. His immediate supervisor rarely if ever visited Troy's job sites to determine if he followed company policies and procedures. AMSCO, said the Commission, failed to take all reasonable steps to assure that the employee complied with the standards and policies it had in force, because it had no way of determining whether Troy was following the correct procedures. Accordingly, AMSCO was liable for the violations that led to Troy's death.

This article appeared in Compliance Magazine (March 1999) 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.