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Even in these trying economic times, few things cause Caterpillar workers more concern than reporting an on-the-job injury or illness. As if being hurt is not bad enough, the consequences of Caterpillar’s perfect 20/20 hindsight investigations have had the desired effect. The mindset that discipline will make you a safer has in large part, led workers to not report injuries. I have spoken with many people who told me, “The first thing I thought after being hurt was I could lose my job over this”.
In 1970, OSHA was directed to gather information regarding workplace injury and illness data in order to further the purposes of the Occupational Safety and Health Act. The data is used to identify injury and illness trends so that OSHA can develop future health and safety standards. For OSHA to develop useful standards they need accurate data on all work-related injuries and illnesses, so if workers are not reporting injuries or illnesses or if employers are taking actions which suppresses employee reporting, the hazards will not be addressed and workers will continue to suffer.
The purpose of the OSHA Recordkeeping Standard 29CFR 1904 is as follows, The purpose of this rule (Part 1904) is to require employers to record and report work-related fatalities, injuries and illnesses. After the Purpose, there is a note that states, Recording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers' compensation or other benefits. In other words, the authors of this standard intended for the reporting and recording of injuries to be done on a fault-free, blame-free basis.
In 2002, the Recordkeeping Standard was amended so that the act of an employee reporting an injury to his or her employer is considered a “protected activity”. Specifically, 29CFR 1904.36 says, Section 11(c) of the Act prohibits you from discriminating against an employee for reporting a work-related fatality, injury or illness. That provision of the Act also protects the employee who files a safety and health complaint, asks for access to the Part 1904 records, or otherwise exercises any rights afforded by the OSH Act. This change was made to reinforce the idea that when workers report workplace injuries and illnesses, they should be able to do so without fear of retribution.
In addition to being rightfully fearful of being disciplined for reporting injuries or illnesses, there have been numerous cases when workers do report, our benevolent employer has taken disciplinary action based on what was allegedly said or written in a statement given while they were in First Aid. If you are ever asked to give a written statement, invoke your Weingarten Rights. Ask if anything you write could potentially lead to you being disciplined. If the answer is “no”, ask for that assurance in writing. If the answer is “yes”, ask for a union representative before writing anything down.
I know of a case recently where a worker suffered a pretty severe laceration and reported the injury. He was pretty confident that he would not get in trouble. He was wearing the required personal protective equipment and felt he had done nothing wrong. When he sat down at First Aid, the first thing they did was to give him a form and asked him to write out what exactly had happened. As he sat there with a blood-soaked shop towel wrapped around the cut, he started to fill out the form and realized that the personnel in First Aid had not even bothered to look at his wound. Once examined, he was immediately sent to the Emergency Room where he received a number of stitches. Why was filling out that form more important than assessing the injury?
Why do we go to First Aid? We go there to report injuries and illnesses as we are required to do. We go because we need the health care professionals to examine us and if necessary or desired, to treat you. We don’t go to First Aid and give our account of the incident to provide Caterpillar with the ammunition they need to discipline us. We don’t go to First Aid to fill out forms and then have the information twisted and turned in such a manner as to put us at risk of disciplinary action. We don’t go to First Aid to have the people we trust to treat us turn against us after the fact.
How have we gotten to this point? Doesn’t Caterpillar publically say they want you to report any and all symptoms of every illness or injury? If we don’t report, aren’t we subject to discipline? Isn’t retaliation forbidden in the Code of Conduct? If retaliation is not tolerated, why are workers so afraid that reporting an injury could lead to discipline or the loss of a job?
According to an article in the Wall Street Journal on July 22, 2013, a Florida jury awarded a former Caterpillar Logistics worker $617,126 for allegedly being harassed and humiliated after reporting a work-related injury (http://online.wsj.com/article/SB10001424127887323993804578611743983277744.html ). Rudolf Amaya hurt his back while moving a box five years ago at a Caterpillar warehouse near Miami. Caterpillar wanted Mr. Amaya to sign a statement saying that the accident was his fault – he refused. Amaya was then allegedly given harsher performance reviews, prevented him from talking to colleagues, restricted his restroom breaks and made him sweep dusty shelves. Caterpillar denied mistreating him.
Roderick Hannah, Amaya’s attorney, stated that one of the problems at the facility was Caterpillar's Vision Zero policy, aimed at eliminating workplace injuries. Hannah stated, "The head of the facility on his performance evaluation gets a bad review…and members of management get bad reviews if the facility doesn't perform up to snuff on safety," according to the article. What do you think happens if the head of the facility gets a bad review on their safety performance? Could a bad review cost the head of a facility some pay or reduce the amount of a raise? Caterpillar denied any economic incentives were tied to safety metrics.
Despite the corporate denials, Amaya’s supervisor said in a sworn deposition that management performance reviews and pay depended in part on injury rates and that employees also receive monetary compensation if the plant met its safety goals. That sounds to me like there are economic incentives to drive down the reporting or recording of injuries. In addition, the Florida jury apparently felt that Caterpillar retaliated against Rudolf Amaya, so in this one case, based on the evidence, the jury felt there were incentives that tied money to safety performance and the jury awarded more than $600,000 for retaliation as a result – amazing!
If Caterpillar ever wants to be a world leader in health and safety and not just a world leader in reducing the number of injuries and illnesses reported, there will have to be a number of changes made. First, any incident that occurs is a symptom of a failure in the safety system. When something goes wrong and a worker is hurt, failures in the system will not be identified unless there is a thorough investigation conducted, preferably by a trained joint labor/management investigation team. Currently, Caterpillar does not allow the union to participate in investigations, therefore the so the so-called “investigations” are usually an exercise in blaming the victim for failures in Caterpillar’s system of safety. The responsibility to correct safety problems on the job rests squarely with the employer, but if you want a joint investigation, you will need to file a safety complaint to get your representative involved.
Second, nobody who reports an injury or illness should be disciplined for anything to do with the conditions or events that led to the incident. In addition, there should be no discipline issued to anyone who reports a near miss. Near misses are some of the biggest bargains in Health and Safety. Where else can you have an incident and learn of serious hazards without someone getting hurt?
Third, if management wants to incentivize something, incentivize reporting exposure to hazards. I can’t believe how much time is wasted doing the foolish “safety observations” that focus on remedial topics like PPE and allow more serious exposures to hazards to continue. High-priced canned behavior-based safety programs that mindlessly repeat the mantra, “Eyes on path”, “Mind on task” and Stay out of the line of fire” are wastes of time and resources that do nothing to identify hazards or prevent injuries and illnesses; they are used to assign blame to workers when injured on the job. Identifying, prioritizing and controlling exposure to hazards is the most effective way to prevent injuries and illnesses. If Caterpillar incentivized reporting hazards, reporting near misses and reporting all injuries and illnesses, they would be surprised at how many hazards are there in plain sight that people are reluctant to say anything about.
Lastly, we the workers are not the problem; we are the solution to Caterpillar’s health and safety problems. We are the experts on our jobs and the way they are done. We don’t design the workplace, parts, processes or tools we work with, but we certainly suffer the injuries and illnesses attributed to them. We need to get our respective workplaces in order. If you feel that you are exposed to a safety or health hazard on your job, notify your supervisor. If he/she can’t or won’t deal with it in a satisfactory manner, ask for your union health and safety representative. If you are hurt at work or suffer from a work-related illness, report it. If you are asked for a written statement, invoke your Weingarten Rights if anything you provide might be used against you. Remember, your union representative is your only advocate, there to help you, if only you call.