By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Review Commission (OSHRC) recently found that an employer lacked fair notice of an obligation under the general duty clause to provide fall protection equipment, and that the issue of whether the employer’s work policy constituted a feasible means of abatement was not properly plead by the Occupational Safety and Health Administration (OSHA) or tried before the administrative law judge (ALJ).  Accordingly, the OSHRC reversed the ALJ’s decision and vacated the citation. Secretary v. Erickson Air-Crane, Inc., OSHRC Docket No. 07-0645 (February 28, 2012).

In this case the ALJ affirmed a citation alleging that Erickson Air-Crane, Inc. (Erickson) violated the general duty clause, section 5(a)(1) of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651-678, by exposing its employees to a fall hazard when they were working on top of a fuel tanker truck. The ALJ had found that although the Secretary did not prove that fall protection equipment was a feasible means of abatement, an Erickson work policy that had not been followed in this incident was a feasible abatement method.

Factually, Erickson provides helicopter lifting services for construction, logging, firefighting, and other industries. At a worksite Erickson had stationed a fuel tanker truck on the premises to refuel its helicopters, and stored spare helicopter blades in boxes on top of the tanker truck. On one occasion, Erickson suspended its helicopter-lifting services due to high wind conditions. During the suspension period, an Erickson foreman instructed two employees to go on top of the tanker truck and to repair the spare main rotor blade. While the employees were repairing the blade, a gust of wind blew the lid of the rotor blade box up, causing one employee to fall from the tanker truck to the ground ten feet below. As a result of the fall, the employee sustained serious injuries.

It was undisputed by the parties that the foreman’s instructions were contrary to an Erickson work policy that required employees to remove the blade box from the top of the tanker truck before performing any maintenance on the blade. Under this policy, two employees were to climb on top of the tanker truck and prepare the box—which together with the blade weighs 400 to 500 pounds—for removal to the ground by a crane, boom truck, or forklift. Then one employee was to climb off the tanker truck before the box was removed, while the other employee was to remain on top to help guide the box as it is lowered. Once the maintenance was completed, the employees were to reverse the process to return the blade box to the top of the tanker truck. Erickson does not require employees to use fall protection while they are on top of the tanker truck.

After the accident, OSHA conducted an inspection and issued Erickson a citation alleging a serious violation of the general duty clause based on the exposure of Erickson’s employees “to a fall hazard … while working on top of the tanker trailer to perform maintenance … without the use of fall protection.” The ALJ affirmed the general duty clause violation based on his determination that “Erickson’s work policy, if it had been properly communicated and enforced, would have materially reduced the recognized fall hazard.”

Erickson claimed that the ALJ erred in relying on its work policy to affirm a violation because the only means of abatement proffered by the Secretary in the citation related to the use of fall protection equipment; the use of Erickson’s policy as a means of abatement was neither asserted nor tried. The OSHRC noted that “it was the judge who first identified the use of Erickson’s work policy as an abatement method in his decision, not the Secretary. Only on review does the Secretary now claim that this policy, if properly implemented, constitutes a feasible means of abatement. Indeed, the citation and complaint specifically describe the violation as ‘employees … exposed to a fall hazard … without the use of fall protection,’ and the listed abatement methods all relate to the use of fall protection equipment, not Erickson’s policy.” “Under these circumstances, we conclude that whether Erickson’s work policy constituted a feasible means of abatement was never ‘explicitly raised in the pleadings’ nor did the parties consent to try this unpleaded issue.” The OSHRC concluded that “[i]n general, ‘an employer cannot be held in violation of the Act if it fails to receive prior fair notice of the conduct required of it.’ Miami Indus., Inc., 15 BNA OSHC 1258, 1261, 1991 CCH OSHD ¶ 29,465, p. 39,739 (No. 88-671)” [Citation omitted].

As a take-away for this case, two things are clear: (1) if you have a company policy on how to do or accomplish certain tasks, make sure that your employees know of and are trained on the policy and what it requires; and (2) procedure and rules dictate that a case be pleaded and tried in a certain distinct fashion. Be sure to look over your case carefully and make sure that all possible avenues and options are explored.