Kavanaugh: Is There Honor in Getting Your Fingers Bitten Off?

Fingers OSHA KavanaughWhen Supreme Court nominee Brett Kavanaugh comes back before the Senate next week to respond to allegations of attempted rape, the Senators may want to follow up on his SeaWorld dissent and testimony (See here and here) by discussing another related story.

For those of you just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified spectators, including small children.  OSHA, which had proven that SeaWorld was aware that the whale that killed Brancheau, had been involved in previous trainer fatalities, and that killer whales in general were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHA’s favor.

Kavanaugh dissented from the majority opinion, arguing in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace lamented that OSHA was somehow attacking the human spirit.  Whale trainers aren’t just workers, they are sports icons, according to Kavanaugh: “To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk— is among the greatest forms of personal achievement for many who take part in these activities.” And here OSHA was attempting to paternalistically take that ability away from these sports icons.

If they get tired of talking about the pros and cons of attempted rape, the Senators may want to ask Kavanaugh about this case concerning other animal attendents at Chimps Inc.,  a nonprofit chimpanzee sanctuary in Tumalo, Oregon.

OSHA inspectors visited Chimps Inc. three times last year and identified the safety violations, which included unsecured doors, poor emergency planning and employees unsafely working alone.

The inspectors also uncovered 30 incidents in past years, including cage doors left open and chimpanzees that had escaped or attacked workers, resulting in bites, scratches, bruises, skin being completely torn off hands and at least four finger or thumb amputations.

OSHA recommended a $20,920 fine, but Chimps Inc. appealed and was ultimately fined $12,520, closing the case.

Pretty bad. But it gets worse. Now the company is being investigated for “unlawful practices” by the Oregon Bureau of Labor and Industries for claims by three workers that they “were fired for refusing to sign waivers, including one that waived their right to call 911 in an emergency.”  The penalty could result in a maximum fine of $81,500 to reimburse the three former employees.

Similar to the SeaWorld citation, several of the violations issued by Oregon OSHA fell under the General Duty Clause, which requires employers to provide a safe workplace — even if there are not specific standards. Also similar to SeaWorld, the fix was not difficult, mainly “sealing shut the sliding feed doors. Now, the chimpanzees are only fed through tilting feeding doors, which help keep employees’ hands away from the chimpanzees.”

SeaWorld also argued that close physical contact between trainers and whales was important for the whales’ happiness, and similarly, Chimps Inc. founder and former President, Lesley Day “shared frustrations during an interview with an OSHA inspector about how the inspection was ruining her access and contact with the chimpanzees. ‘We had to lock the slide door in the front enclosure after your last visit,’ Day said. ‘I can only contact the chimps through the enclosures. It’s not like it used to be, and the chimps miss it.'”

I’m sure they do, but probably not as much as the workers miss their fingers, no matter how tough they are.

So the Senators may want to ask Kavanaugh next week whether he things the Oregon OSHA citations against Chimps Inc were justified or was the agency being paternalistic? Did the workers know about and therefore “assume” the risk, absolving Chimps Inc. of responsibility?

And were the Chimps Inc. workers fearless, courageous and tough enough to have their fingers bitten off or is their “personal achievement” being obstructed by the nanny state?

Judge Kavanaugh: Inquiring minds want to know.

 

Brett Kavanaugh OSHA

7 Comments

  1. Gosh, Jordan, aren’t there some better examples? If one’s intention is to persuade me, using sensational examples such as animals biting off body parts is a turnoff, regardless of one’s political slant. That’s stuff I would expect from “the other guys.”
    Below is a pertinent article concerning this matter.
    news.nationalgeographic.com/2018/02/wildlife-watch-apes-sanctuary-failing-animals/
    Are there potential issues related to these sanctuaries? Am sure there are…just like many other evolving, poorly regulated “industries.” Do they have responsibilities to their employees? Absolutely. But of all the institutions out there to “go after,” a non-profit that is trying to do the right thing (save animals), whose heart is likely in the right place?. Am not defending them, Jordan. I don’t have all of the facts, and I doubt you do either.
    There are things happening today with animals that would appall the public. Nobody likes hearing about someone getting a finger bitten off at a sanctuary, but the public also does not like hearing of trained animal’s being euthanized or neglected after their “useful” lives. Just as some humans would throw out the rulebook if they thought another human life was at stake, there are folks who care so much about animals that they justify certain behaviors as well. “Exposing” people and hitting them with fines is NOT the right approach to reach these people, since we are talking about very deep, value-oriented issues here.
    The articles mention people working alone. I am pretty certain there are thousands of people today performing highly hazardous tasks who would be totally screwed if something went wrong. …because they are working alone…and employed by some big corporation. How do I know? I fought that fight for years. But we are tackling the issue at a non-profit animal sanctuary with the limited resources OSHA has…instead of at corporations who likely have a lot more money and resources to address the issue than an animal sanctuary…corporations with executives who own 5 homes. I would bet the lady “exposed” in the article is not rich…misguided, maybe.
    Concerning one of the citations, OSHA is telling the sanctuary how to administer drugs, a practice approved by the sanctuary”s veterinarian? If that is true, since when does OSHA have such expertise? And is this the very stuff that gives ammo to the “other side” concerning regulatory overreach?
    How many people suffer amputations in such sanctuaries each year? I have no idea. I do know that we have people getting body parts ripped off every day at manufacturing and construction sites. Whether done by a chimpanzee or a machine, the result is the same. But I guess if one wants to call into a question a person’s character, animals munching on human body parts is much more compelling, isn’t it?
    Our safety profession has light years to go just with machine guarding. So, do we really have time to be worrying about animal husbandry? When I stop hearing daily stories of people being maimed by machines or dying in trenches, I’ll gladly join you in your campaign to put a stop to these questionable sanctuary owners. In the meantime, I will keep trying to convince even the biggest, richest corporations to do a better job of complying with minimal safety standards.
    My comments are not politically motivated. Kavanaugh might be the biggest creep in the world. But as a safety professional, if the best example you can give of someone’s contempt for the American worker is this…seems pretty desperate. My friends with kids who volunteer as coaches may not be the safest guys in the world, or the greatest examples, but they do care about the safety of others. Without some REALLY compelling facts, it would be difficult to get me to think otherwise of them. I give everyone the same benefit of the doubt…even the “other guys.”

    1. The good-heartedness or public spirtedness of the employer has nothing — zero — to do with their responsibility to ensure a safe workplace. When I worked for AFSCME it was often the non-profit hospitals and universities that treated their employees the worst, but felt themselves somehow above criticism because their intentions were good.

      You can run a non-profit AND treat your workers decently at the same time. An amputation is an amputation whether you’re employed by a robber baron or the Blessed Mothers of the Virgin Mary.

      And I wasn’t singling them out; just ran across an article that seemed apt. And I didn’t go after them; Oregon OSHA did, and it seems that they had adequate grounds. I just report the news; I don’t make it.

    2. As it happens I do know quite a bit about this case. If it were just about keeping the founder from contacting animals you might have a point. But her contact put the employees at demonstrable and repeated risk. And telling employees not to dial 911 — and even asking them to sign documents saying they wouldn’t?

      The nonprofit card only plays so far. It does not excuse putting your employees at repeated risk. Regulatory overreach? It certainly happens. But neither our action nor the Bureau of Labor and Industries’ action in this case are an apt example of anything other than public agencies fulfilling their statutory responsibility to protect workers from employers who have lost an awareness of safety in a single-minded focus on their mission — whether that mission involves a noble calling or not.

  2. Was very kind of you to reply, Mr Wood. I worked for OSHA many years ago, so I have an appreciation for the challenges of such an organization. Having a background in animal training, I know from firsthand experience how unpredictable animals can be and dealing with them has inherent dangers. There are wildly different philosophies and practices that are utilized. In the world of animal training and husbandry, what some consider an acceptable risk might be deemed otherwise by a lay person. It is not just “common sense.”
    I think it is reasonable to expect a seasoned CSHO to inspect a piece of machinery with which he/she may not be familiar and make judgments associated with proper/improper guarding. It is a whole different ball game to expect a CSHO with limited practical knowledge of animal behavior and husbandry techniques to be judging what is “reasonable.”
    Bigger picture, we have industries that lack standardization of work practices across the industry, for which OSHA has not developed any sort of technical guidance, and compliance personnel with limited knowledge and training using the general duty clause to issue citations. That is problematic on many fronts.
    How many years have people been getting killed in paper mills? People expose the bad actors in the news, OSHA keeps writing citations, but we still lack standards. Standards, or at least technical guidance, are the starting point. I cannot tell you how many times in my career I have called up state or Fed OSHA, asked questions, and left the call empty, ie “no comment” or “we don’t have that.” …lots of excuses. So, if we want to hold the feet of small non-profits or other small businesses to the fire, fair enough, but I think once we identify a problematic industry, we do them a disservice writing 5(a)(1) citations and failing to work with the industry toward development of consensus standards so that everyone, including CSHO’s, have something against which to judge.

  3. Well, many of our recent citations involve machine guarding and lockout/tag out as well. One thing that most of those situations and the Chimps Inc case have in common is that the bulk of the violations would be avoided IF THE EMPLOYER HAD DONE WHAT THE EMPLOYER SAID IT SHOULD DO.

    And your underestimate the work and thoroughness of the investigator in this case. As you noted, you don’t really have all the facts. One in particular worth noting is that Oregon OSHA’s inspection was conducted in response to employee complaints. “You’re getting hurt, your employer knows how to fix it but isn’t following through, and you continue to be at risk — but we aren’t going to hold them accountable because they are a nonprofit performing an important service and we don’t have specific standards — even though there are some really useful guidelines that your employer helped develop.” No. Somehow that response just doesn’t work for me.

    There are certainly widespread gaps in our rules — that’s a frustration many of us share although the solution is not as easy or simple as it might seem. And the OSHAct and the Oregon Safe Employment Act both provide a mechanism to address those issues. That’s exactly what the employer’s general duty under the law is.

    1. Thank you again, Mr Wood. After reading your response, I have no doubt that a. OR OSHA was doing its job, b. the CSHO was thorough, and c. the employer failed to live up to its obligations. If it is true that OSHA question a trained veterinarian’s recommendation for proper administration of a drug, I do still question that. Not that veterinarian’s are safety experts, but am sure that person has a lot more practical experience with primates than anyone at OSHA. I have personally debated with OSHA personnel who refused to acknowledge years of industry practice development because “they knew better.”

      My main reason for originally commenting was as follows. Mr Barab has written about this case and Sea World in light of a Supreme Court justice’s nomination. He also used certain language I thought was overboard, ie “dismembered and killed by a killer whale during a live show in front of hundreds of horrified spectators, including small children.” …no kidding there were kids there, it’s Sea World. He commented “I just report the news.” Whether kids are present is irrelevant to the case from an OSHA perspective and I am certain that was not present in the OSHA investigation as a mitigating factor.

      Kavanaugh has absolutely nothing to do with the chimp sanctuary..other than the possible message of “If we don’t get the right person in that seat, there are terrible people out there that allow their employees to get their fingers bitten off by chimpanzees who will be enabled to continue the same.”

      I agree there are unethical people out there leading organizations and institutions of every type and size, and all are accountable. If we want to make an example of someone, I can think of a lot better examples than the owner of a chimp sanctuary that has probably spent much of her own savings keeping the place going. Am not defending her behavior, though.

      I find it distasteful to use the misfortunes of others to further political agendas…especially cases of which someone may have limited personal knowledge. Tying political agendas and sensational language to safety amplifies urgency. “Oh my gosh, we need to stop Kavanaugh or else these animal attacks could continue.” LOL If animal attacks are a serious threat to workers, let’s get to work dealing with the problem as a safety professional community and talk about solutions instead of turning it into a political issue.

      Otherwise, let’s let OSHA and the media deal with the bad actors. As a Board member of a struggling non-profit in a poor,rural area, I don’t appreciate people making assumptions about our practices any more than you do someone with second-hand knowledge second-guessing your CSHO’s. Just as the solution to your frustrations are not simple and OSHA requests the patience of the public, ie “Sorry for taking 2 years to get back to you…” ha ha, solutions for small business owners are often complex and require understanding and patience. Realistically, some of them should probably just shut their doors, because they are doing things that “aren’t quite right” It’s easy to say “tough cookies.” Tell that to the little kids depending upon us.

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