b"Gary's Corner OSHA Mock Trial: Lessons Learned Gary Auman, MRCA Legal Counsel 0December67this year, those individuals fortunate en In addition, two ladder-related violations were issued. Aemployer nandofoughserious to attend the MRCAAnnual Convention in Grapevine, TX,thecitation was issued because the CSHO did not believe that the had opportunity to be entertained and to learn some valuable lessons re ensured that the area around the top of the ladder was kept clear of garding job-site safety and the penalties that aractor might have todebris that could cause aA w violation was also cont tripping hazard.illful priority onotladd setside pay for not making safety aevery job site. The session was anissued because the employer did n have theerup with the OSHA mock trial, which was perfonned by contractors and involved real rails extendingleast 3above the surface to which the ladder was atfeet life situations that should be familiar to all contractors. The OSHA viola being used to gain access. tions we addressed were from cases Idefended.Acitation was issued b the employer did not conduct haveseriousecause Because of the serious naturethe issues addressed in the mockfrequent and regular inspections of the job s e by aperson. ofit competent trial and the v of the lessons covered, Ibeen asked to devoteThe CSHO's observations of the safety monitor and ladder violations led aluehave my next several columns to a recap of the trial and the teaching po him to conclude that the employer had not train employees in the intsed covered for those of you who were unableattend these sessions at therecognition and avoidance of unsafe conditions and the regulations apto convention.plicable to the work environment.Asahe issued further citations. result, Our case involved ay-owned businesswas tryinggrow.Theof reasoning employed bysvery often other famil thattolinethi CSHO-and Of course, the majorof the two brothers running the businessCSHOs-was that there would have been no exposure ifrequired effortsthe focusedconcewereon growth. This meant antration on marketing andtraining and monitoring had occurred. Finally, another serious citation perfonnance. With just thebrothers running the show, not muchwas issued because adrill observed by the CSHO was missing its twohand time was devoted to addressing safety issues. So, safetyallowedtogrounding waspin. slide.The fines totaled $135,200, because three of the citations were Eventually, aous accident occurred that garnered the attentionclassified as willful. The company attended an informal conference and, seriof OSHA as a result of a referral to OSHA by an employee of theneralwhile they were offered areduction in the fines,area director ge 30%the contractor. While our case involved an accident as afor the OSHArefused to reclassify any of the c ons. The owner of the company triggeritatidrive-byhe retained three inspection, the more common scenario is aor an employeelearned that ifwillful violations on his record, he complaint.might lose the opportunity to bid aamount ofkat significantwor for The OSHA compliance officer found safety violations in many differ least the3 followingyears. ent areas. Several violations arose from the improper use of, or actionsIn addition with three willful violations heplaced on the OSHA was by the safety monitor. One violation was related to the improper setup ofSevere Violator Enforcement Program (SVEP) list. This alone carries the ladder used to ascendthe roof. Then we had several training cita several disadvantages for an employer beyond the isues concerning his to notice tions and one citation involving the company's failure to have frequentability to bid contracts. So he directed his attorney to file aof and regular inspectionsjob site by am person.Asyoucontest (NOC). of theco petent review these violations, consider how manyes aroofingAfter the NOC was received by the Review Commission, the chief tim commercial job you have done could have been subject to the same violations.judge assigned theto an administrative lawto conduct matterjudge When the compliance safety and health officer (CSHO) ascended toay,of the litigation procedure for contests mandator mediation part the roof, he firstthat the safety monitor was talking on his cellinvolving more than $100,000 in fines. The mediation, noticedwhich required bitpreparation anddays to phone and could not observe all of the employees working outside thequite aof2complete, did not result in warning lines.an acceptableofcompany'swith OSHA, so resolutionthedifferences Asa r lt of this observation, the CSHO issued ato thethe matter was set for aw took place during the MRCA esu citationhearing,hich employer for failing to ensure thathhad been trained, asConvention in Grapevine. eac employee necessary, by aperson in the role of each employee in theThe trial was conducted before Administrative Lawge Kurt competentJudse violation.with the safety monitoring system. This was deemed to be ariousTheSteinkuhler and proceeded as would an actual OSHA trial, CSHO also cited the employer for two willful violations, also connectedexceptionmanythe procedural matters that occur during an thatof to themonitoring system. The CSHO cited theyer for notactual trial were explained to the audience as they safetyemplo occurred. ensuring that themonitor was within visual sighting distance ofIn myarticle, Ithepresented by the safetynextwill describecaselawyer the employees being monitored. The CSHO issued acitation forrepresenting OSHA, Jim Barr. second not ensuring that themonitor had no other responsibilities that safety could interfere with the monitoring functions. 14www.mrca.org- Midwest Roofer"