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Elevator company loses appeal after 5-year fight

More than five years of litigation and a failed appeal have left Otis Elevator Co. with a $500 fine and a stained safety record stemming from a repairman’s injury at a Brookfield department store.

The U.S. Court of Appeals for the District of Columbia Circuit on Aug. 15 upheld an administrative commission’s previous order that Farmington, Conn.-based Otis pay the $500 penalty and incur a serious violation for hand lacerations a mechanic, Ken Nauholz, suffered while working in 2009 on an elevator at a Boston Store in Brookfield.

Nauholz had gone to the store June 16, 2009, to learn why the gate of a freight lift would not budge, according to court documents. He found that a chain connected to the gate had become stuck after falling off a sprocket.

Dislodging the part, he became worried the sudden release of energy would damage other parts of the mechanism, according to court documents. His reaction was to grab the chain, and his hand was pulled into the sprocket and cut.

At first, the Occupational Safety and Health Administration cited Otis with two $5,000 serious violations. The first was for violating rules requiring the use of devices that cut mechanical components off from a power source when repairs are underway.

The second was for failure to communicate the company’s standard repair procedures to Boston Store employees before beginning work on the elevator. OSHA requires the swapping of that sort of information to prevent workers who might be unfamiliar with one another’s repair practices from doing something that inadvertently exposes others to harm.

Federal officials, though, later vacated the first citation. The Occupational Safety and Health Review Board, a separate agency from OSHA, then lowered from $5,000 to $500 the fine amount for the communications citation. In offering the reduction, according to court documents, the board noted that there was a sign outside the elevator alerting passersby to the ongoing repairs.

Otis still appealed.

Larry Halprin, a Washington, D.C.-based lawyer who in April helped present a 30-minute seminar on the Otis case but was not involved in it directly, said the communication rule generally makes sense at industrial and manufacturing sites. In those settings, outside mechanics often work with onsite employees to repair machinery, and ignorance of safety procedures poses dangers both to those who do not know what they should be doing and to those who do.

But the communication rule is on shakier ground, Halprin said, when a repairman is working alone, as was the case with the Otis mechanic at the Boston Store. Store employees were present when Nauholz was working on the elevator, but almost all of them were in sales and would not be expected to help with the repairs.

“When you are at a retail space,” Halprin said, “the idea that you are going to share procedures with the retail people who are not going to be doing anything with what you are going to be doing anyway, that’s just a hypertechnical waste of resource.”

Whether or not the communication rule is reasonable at all workplaces, the three judges who ruled on Otis’ appeal agreed the law gave them little choice but to uphold OSHA’s findings. According to the court’s opinion, attributed to Judge Patricia Millett, OSHA’s compliance directives do not vary by job site or the type of work being performed.

“Importantly, at no point does the directive suggest that employers are free to choose whether they will comply with the information exchange provision at all,” according to the opinion. “Quite the opposite, the directive states just a few sentences later that ‘on-site employers and outside employees must inform each other of their respective… procedures.’”

Representatives of Otis Elevator could not be immediately reached.

Halprin said he knows Otis Elevator did not fight OSHA for so long simply to avoid paying a $500 fine. A much more likely explanation, he said, is that the company did not want its record blemished by a violation that might be difficult to avoid repeating.

Halprin noted that companies that are cited twice for the same OSHA violation in the span of five years are subject to fines of up to $70,000. He said a company as large as Otis, which likely maintains elevators in every state, will have quite a task ensuring that all its employees abide by federal rules governing the communication of safety procedures.

That especially will be true, Halprin said, for repairmen who are used to working alone.

“This is silliness,” he said. “If you can imagine now, given this decision, unless they want to fight this out again now every time they go to a site anywhere in the country, they are going to have to exchange paperwork and explain their safety procedures.”

About Dan Shaw, [email protected]

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at [email protected] or at 414-225-1807.

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