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Thursday, June 16, 2011

OSHA hits Phoenix City, Alabama Lumber Co. with 1.9 Million Proposed Fine

Tommy Eden, Attorney

The U.S. Department of Labor's Occupational Safety and Health Administration on June 16 proposed penalties of $1,939,000 to the Phenix Lumber Co. and its principal, John M. Dudley, for egregious and other safety violations, including exposing employees to amputation and fall hazards.

Phenix Lumber and Dudley have 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the Occupational Safety and Health Review Commission. The work site was inspected by OSHA's Mobile Area Office. Prior to these citations, Phenix Lumber had been cited 77 times by OSHA for serious safety and health violations since 2007.

OSHA began an inspection on Dec. 15, 2010, in response to a complaint that employees working in the planer mill were exposed to amputation hazards while maintaining, cleaning and clearing jams on pieces of machinery that did not have their energy sources locked out to prevent their unexpected start up. Two months later, OSHA received a second complaint that an employee had suffered a partial finger amputation while clearing a piece of machinery that had not been locked out. At the opening of an inspection following the second complaint, the compliance officer learned of another employee who had just suffered a severe hand injury while working on unguarded machinery. Phenix Lumber had been cited numerous times during the past four years for allowing employees to work on unguarded machinery while it was operating.

OSHA has issued Phenix Lumber 13 citations for 24 willful violations, including failure to properly shut down and lock out 13 pieces of machinery before employees were required to perform tasks such as clearing jams and cleaning. These failures exposed employees to amputation hazards, as well as to the possibility of being caught between or struck by pieces of the machinery and falling lumber. The employer also failed to train 11 employees who performed this work on the hazards and how to shut down and lock out the machinery so that they could perform their tasks safely. OSHA proposed the maximum $70,000 penalty for each violation, totaling $1,680,000.

Citations for three additional willful violations allege that a worker was exposed to fall hazards while working from the top of a machine, locks were not issued to employees as required by the lockout standard, and the company failed to follow established lockout/tagout procedures. These citations carry additional penalties of $70,000 each, for a total of $210,000.

A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. OSHA may propose separate penalties for distinct willful violations of the same OSHA standard where one or more of the seven criteria are met as identified in the OSHA directive "Handling of Cases to be Proposed for Violation-By-Violation" (compliance directive 02-00-080). The criteria include that the employer's conduct taken as a whole amounts to clear bad faith in the performance of duties under the Occupational Safety and Health Act.

One citation for a repeat violation with a $35,000 fine was issued for failing to place machine guards on seven chains and sprockets. A violation is "repeated" if the employer previously was cited for a substantially similar condition, and the citation is a final, affirmed order of the independent Occupational Safety and Health Review Commission. This time is the third within three years that Phenix Lumber has been cited for failing to guard this type of equipment.

Citations for two serious violations, each with a maximum proposed penalty of $7,000, were issued for failing to guard a pinch point at a hydraulic pusher plate, which exposed employees to amputation hazards and caused one of the injuries; and to ensure that employees performing lockout/tagout tasks applied and removed their own locks. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Copies of the citations are available at* and*.

OSHA has proposed that the employer be included in the agency's Severe Violators Enforcement Program. Initiated in 2010, the program is intended to focus on employers that endanger workers by committing willful, repeat or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe; industry operations or processes that expose workers to severe occupational hazards; exposure to hazards related to the potential releases of highly hazardous chemicals; and all instance-by-instance enforcement actions under compliance directive 02-00-080. Inclusion in the program subjects employers to mandatory follow-up inspections; increased company/corporate awareness of OSHA enforcement; and, where appropriate, corporate-wide agreements, enhanced settlement provisions and federal court enforcement under Section 11(b) of the OSH Act. More information at

Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time OSHA “comes to help you” the cost of being in the wrong just went up.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.