September 18, 2012

OSHA’s use of General Duty Clause Rejected / Lack of Fair Notice

OSHA v. ERICKSON AIR-CRANE, Inc., OSHRC Docket No. 07-0645

This matter was brought before the Federal Occupational Safety and Health Review Commission for review following Employer’s appeal of the ALJ’s ruling that it violated the general duty clause of OSEA by exposing employees to fall hazards on top of a fuel tanker truck.  The Commission reversed the ruling, finding that Employer lacked fair notice of OSHA’s application of the general duty clause.

Employer was an Oregon-based corporation doing business in Nebraska providing helicopter lifting services to various industries.  Employer kept a fuel tanker truck stationed onsite.  On March 1, 2007, Employer suspended activities due to strong winds. The foreman instructed two employees to climb to the top of the tanker truck and repair a spare main rotor blade. During the repairs, a strong gust of wind knocked the box cover into one of the employees, causing him to fall 10 feet and sustain serious injuries. (Employer conceded that the foreman’s instructions controverted existing policies to remove the blade box from the top of the tanker truck before performing any repairs.)

The Employer was issued a citation for violation of the general duty clause because it did not require employees to wear fall protection. On appeal, the Commission ruled that Employer lacked fair notice of OSHA’s application of the general duty clause in this manner.  OSHA’s 1990 Fall Protection guidelines specifically listed exceptions for rolling stock, unless located near a building.  Here, the fuel tanker truck (“rolling stock,”) was not located near a building.

The Commission also found that the issue of whether Employer’s policies constituted means of abatement if followed properly was never pled by OSHA, never raised at Hearing by OSHA, and never consented to as a issue for trial by Employer.  In fact, the Commission determined that the only entity to raise the issue at hearing was the ALJ.  The Commission therefore reversed the ALJ’s ruling.

by Cummins, Goodman, Denley & Vickers, P.C.