Willful Blindness

The Washington, D.C., Federal Circuit Court of Appeals came down hard on a corn- refining company that reportedly ignored serious dust and electrical explosion hazards and noncompliance written reports. The OSHA Review Commission's determination of 89 willful citations were upheld on appeal against A.E. Staley Mfg. Co. on July 23, 2002. The Federal Appeals Court upheld the willfuls because:

  • Sufficient evidence showed that the employer was indifferent to OSHA noncompliance at one of its plants where historical dust explosions had occurred and the company's own safety audits put the refiner noncompliance, but failed to take corrective actions.
  • In 1989 a National Institute for Occupational Safety and Health (NIOSH) evaluation report revealed that employees were poorly trained on toxic chemicals and did not have roper respiratory protection "due to improper management oversight and emphasis of production over worker safety."
  • There was evidence of the plant's joint health and safety committee warning the company of serious deficiencies in its hazard-communication programs.
  • There was testimony that when the company's safety engineer held a mock inspection (which reportedly found hundreds of safety violations) he reported the results to management and requested a wall-to-wall audit. When that request was denied, one manager allegedly replied that he was aware of the problems in the plant, but that another project had priority.
  • The safety engineer claimed he was told not to distribute the report because "the legal department would crucify us." The manager reportedly suggested destroying the report or stamping it "privileged and confidential" and sending it to the legal department. Of course, the safety engineer did not destroy the report but kept a copy and sent copies to a couple of other administrative staffers.
  • Also, there were historical dust explosions and past OSHA similar-violation citations.

Arguing that OSHA willful violations require a "heightened awareness" of noncompliance, the employer tried to get the court to accept such defenses as:

  • There was no actual knowledge of noncompliance by plant personnel because they did not receive a copy of the safety engineer's handwritten mock audit findings.
  • The employer claimed good faith due to its joint management-hourly employee plant-safety committee.
  • And, even if the company could be viewed as being indifferent to OSHA standards requirements, its violations of the hazardous locations standard were not willful because it was unaware of the specific conditions for which it was cited. There is no evidence in the record, Staley notes, that its management knew of the precise uncovered electrical boxes and exposed wires discovered by the OSHA inspectors. Although these conditions were of the same kind and in the same locations as problems found in earlier internal audits, Staley stressed that OSHA cannot prove that they were the same piece of noncompliant equipment.

The Appeals court brushed all these arguments aside. It found that:

  • Staley was indifferent to its violations of the hazard-communication standard. The NIOSH evaluation and internal surveys and audits gave Staley a heightened awareness of its hazard communication problems, including problems with the specific chemicals for which Staley was later cited. Yet, the company responded unappreciatively to those warnings and substantially failed to ensure the required training of its managers and employees.
  • Even a single violation of OSHA regulations may be found willful (with warnings or plain indifference to safety), regardless of whether the workplace is otherwise safe.
  • And, on the threshold of willful, the doctrine of "willful blindness" applies to OSHA Act enforcement. That doctrine "allows the (fact finder or court) to impute the element of knowledge to the defendant if the evidence indicates that he purposely closed his eyes to avoid knowing what was taking place around him."

This case is a good reminder for management to monitor its internal audits and historical citations and direct appropriate compliance activities toward deficiencies which surface.

In another OSHA willful-citation case, which is becoming a bit of a pattern of OSHA enforcement, the Department of Labor cited a Wisconsin manufacturer for willful, absent hearing conservation program. OSHA's evidence for the willful citation? Five letters from the company's workers' compensation insurance carrier recommending adoption of a hearing-conservation program. In only partial response to these letters, the company required workers in the bandsaw location to wear hearing protection but:

  • It was optional elsewhere;
  • No yearly hearing tests (audiograms) were provided to the exposed employees;
  • No formal training was provided on the correct use of hearing protectors; and
  • Exposed workers (above 85 dBA) were not given any awareness training regarding the hazards of noise exposure exceeding 85 dBA.

The OSHA Review Commission viewed the insurance letters as establishing a heightened awareness of noncompliance and its duty to provide a hearing-conservation program- which awareness is the threshold to a willful finding. Insurance safety audit letters should not be ignored; they are on OSHA's radar. (Secy. of Labor v. Great Lakes Packaging Corp., 18 BNA OSHC 2139).