The Occupational Safety & Health Reporter™ provides complete news coverage and documentation of federal and state occupational safety and health programs, standards, legislation, regulations, enforcement, and Review Commission decisions.
By David Schwartz
More than 100 citations for lockout/tagout violations against Dayton Tire will stand, but not as the willful citations characterized by the Occupational Safety and Health Review Commission, the U.S. Court of Appeals for the District of Columbia Circuit ruled March 6 (Dayton Tire v. Secretary of Labor, D.C. Cir., No. 10-1362, 3/6/12).
In an opinion by Judge Janice Rogers Brown, the appeals court said that although it took the commission more than 12 years to rule on the case, Dayton Tire was not entitled to dismissal. The commission accepted Dayton's appeal in 1997 and ruled in 2010 (40 OSHR 770, 9/16/10).
At the time, Dayton Tire was one of 10 so-called “legacy cases” before the commission. These were cases that had been on the docket for years due to their complexity or the commission's inability to form a quorum to resolve them. It ruled on the last of these cases in September 2011, and the oldest case now before the commission has been there since September 2008.
The court expressed its displeasure with the commission's tardiness throughout its opinion. It said that it “grudgingly declined” to grant Dayton's request to set aside the commission's order because the commission had dawdled. In rejecting the commission's characterization of the violations as willful, the court ordered it to reassess the gravity of the violations. “We trust the Commission will act before the decade is out,” the court said.
Willful citations can carry penalties as high as $70,000, while serious citations carry a maximum penalty of $7,000, so it is possible that the penalty against Dayton Tire could be reduced by 90 percent or more.
“We are pleased that the United States Court of Appeals for the D.C. Circuit today issued a ruling which affirms our position,” Dayton's parent, Bridgestone Americas Tire Operations LLC, said in a press statement issued March 6. “This ruling reverses OSHA's 1994 finding of willful violations at the Dayton Tire plant in Oklahoma City, which has been closed since 2006.”
The Labor Department's case against Dayton Tire received national attention when it broke in the early 1990s. In October 1993, an employee, Bob Julien, was killed when a machine activated unexpectedly, prompting an inspection by the Occupational Safety and Health Administration. Six months later, then Secretary of Labor Robert Reich traveled to the Dayton plant to personally serve the employer with a citation alleging 107 willful violations of the lockout/tagout standard, with a proposed penalty of $7.5 million.
Dayton appealed, and an administrative law judge with the commission ruled in 1997, finding that 37 of the 107 violations were willful, and reducing the proposed penalty to $518,000. The commission granted review in March 1997.
“Then the parties waited, and waited, until September 2010,” said the appellate court, “when a divided Commission affirmed all but one of the violations, and went beyond the ALJ ruling to find all of the violations willful.” It set a penalty of $1.975 million.
“I think the tortured history of this case is an example of what happens when a case of this sort becomes politicized,” Baruch Fellner, an industry attorney at Gibson Dunn and Crutcher LLP, in Washington, D.C., told Bloomberg BNA March 6. “As alluded to in the opinion, it started with the secretary of labor's visit to the plant. It was politicized from Day One.” Fellner was not involved in the Dayton litigation.
In its appeal, Dayton Tire argued that the commission violated the Administrative Procedure Act's requirement that an agency resolve a matter before it “within a reasonable time.” The court noted that the secretary of labor's own brief called the delay “excessive and deplorable” but added that delay is not enough. It is the consequence of that delay that dictates whether corrective action, such as dismissal, is merited.
Dayton Tire argued that any penalty at this point would have no deterrent effect. Dayton Tire could not be deterred from future violations because it no longer exists as a separate entity from its parent, Bridgestone/Firestone Inc., and Bridgestone, which generally has an excellent safety record, had urged its subsidiary to comply with its lockout/tagout obligations even before the Labor Department cited Dayton Tire.
The court rejected this argument.
“Although Bridgestone has a strong safety record,” the court said, “there is always room for improvement.” Perhaps, it said, in the future Bridgestone “will be more insistent when it encourages compliance with health and safety regulations.”
Fellner said the court missed an opportunity.
“I wish the court would have had the courage of its convictions and thrown this case out,” he said. “Sometimes courts have to teach agencies a lesson, and they didn't do it in this instance.”
Fellner characterized the opinion, ultimately, as a case of judicial “dissonance.” The court upheld the citations against Dayton Tire because of their deterrent effect, he explained, but ordered the commission to downgrade them from willful.
Fellner said he doubted that a monetary penalty that would likely be well under $1 million would have a deterrent effect.
Michael J. Wright, director of Health, Safety, and Environment for the United Steelworkers, which was an intervenor in the case, applauded the outcome.
“The court found that the violations didn't quite meet all the legal requirements for a willful violation,” Wright said in an e-mail to Bloomberg BNA March 7. “But they were violations—serious ones. Thanks to the court—and the persistence of the Labor Department, the United Steelworkers, and the ex-members of our Dayton Tire Local—the standard is secure and the company has finally been brought to justice for the death of Bob Julien.”
The court agreed with Dayton Tire that the commission did not provide substantial supporting evidence to show that the company's violations were willful, which requires a showing of plain indifference. The commission's characterization was based in part on evidence of the behavior of two Dayton safety managers, but the court said it did not see evidence that the two did not care about safety at the plant.
“As our cases indicate, it takes a lot to be plainly indifferent,” the court said.
Much of the court's opinion centered on one of these safety managers, Kelley Mattocks. It said the commission did not offer any evidence that at any time Mattocks was aware that the Dayton plant was violating the law.
The court noted that she did assess safety issues, sent safety-oriented memos, and conducted investigations. “While Mattocks could have done more, she did not do nothing,” the court said, adding in its conclusion, “Mattocks made some effort to ensure Dayton's [lockout/tagout] compliance, and under these circumstances, some effort is enough to save Dayton from a willfulness determination.”
The court ordered the commission to reassess the extent of Dayton's safety violations and recalculate an appropriate penalty.
The text of the D.C. Circuit's opinion in Dayton Tire v. Secretary of Laboris available at http://op.bna.com/env.nsf/r?Open=jstn-8s6mac.
The commission's 2010 ruling in the matter, Secretary of Labor v. Dayton Tire, as well as the 1997 administrative law judge's decision, is available at http://op.bna.com/env.nsf/r?Open=jstn-8s6max.
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