OSHRC Confirms Per-Employee Penalties for LOTO Training Violations

Having only two commissioners appears to be hampering the Occupational Safety and Health Review Commission's ability to issue decisions, but OSHRC issued an important one Dec. 4 that upholds OSHA's ability to levy per-employee penalties for violations of the lockout/tagout standard's training requirements. The case, Secretary of Labor v. General Motors Corp., CPCG Oklahoma City Plant, Nos. 91-2834E and 91-2950, involved an inspection after an April 1991 fatality at a GM auto plant in Oklahoma City. OSHA filed one citation against GM five months later that contained 57 alleged violations of the general industry LOTO standard, 29 CFR 1910.147, and levied a $2.78 million penalty against GM. Administrative Law Judge Stanley M. Schwartz later affirmed nearly all of the citations but reduced the penalty to $1.945 million.

The 2-0 decision issued Dec. 4 (Chairman Horace "Topper" Thompson and Commissioner Thomasina Rogers are the only commissioners at present) again lowered the penalty, to $692,000, but the outcome is a victory for OSHA and DOL. Thompson and Rogers affirmed most of the citations, including the items related to the fatality; affirmed most but not all violations that OSHA classified as willful; and, crucially, determined that both the initial training violations (cited under 1910.147(c)(7)(i)) and the retraining violations (cited under 1910.147(c)(7)(iii)(B)) may be cited on a per-employee basis.

The fatality occurred when a motor rail conveyor lift table activated as millwright Donald Smith was leaning inside, preparing to perform maintenance work on the machine. It caught his head, killing him instantly, according to the decision. The LOTO standard had became effective only a year before, on Jan. 2, 1990. The plant had about 5,000 employees in 1991 and hundreds of machines, some powered by multiple energy sources. While GM established a LOTO training program in 1985 as part of a partnership with the UAW, GM managers at the Oklahoma City plant "did not enforce the use of lockout procedures, permitting and even encouraging employees to service machines without locking out," the commissioners wrote in the decision. "Supervisors observed employees servicing without locking out and took no action, neither stopping the servicing work nor retraining the employees in proper lockout procedures. GM also failed to adequately supply servicing and maintenance employees with necessary safety locks."

The standard's training provisions say an employer must train "[e]ach authorized employee." Because this language imposes a specific duty to initially train and to retrain every worker, per-employee citation under those provisions is available, the commissioners wrote.

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