Northeastern Subcontractors Association
Vol 18, No. 10 (518) 869-9800 April 2000
Inside this edition: NESCA Legal Defense Fund * Safety Resource Center on Web * Post Your Prevailing Wage Signs * President's Message * Owners Modifications to On-Site Machinery * New Members * New York Job Growth Up In 1999 * OSHA Issues Ergonomics Proposal
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NESCA BOARD APPROVES ADOPTION OF LEGAL DEFENSE FUND (Go Top)
At its March 2, 2000 meeting, NESCA's Board of Directors authorized the adoption of a "NESCA Legal Defense Fund" for the purpose of pursuing the common rights and goals of northeastern New York subcontractors and suppliers in the courts. The idea of a NESCA Legal Defense Fund has been discussed by the Board for several months. At a January 14, 2000 Board of Directors strategic planning meeting, the Board directed that a survey be prepared and distributed in an effort to determine the level of interest among members in establishing a fund, and to obtain feedback on the types of legal issues which are relevant to member businesses in order to determine which issues could be pursued. Such issues to be considered might include competitive bidding issues, interest on retainage, the elimination of absolute liability under 240/241 Labor Law, and regulatory overreach by state agencies. At the March 2nd meeting of the Board, the recent Department of Labor policy shift concerning public works benefit plans was discussed extensively. It was determined that actions such as those recently taken by DOL heightened the need for a Legal Defense Fund to help protect the rights of subcontractors and suppliers, and a motion to authorize the adoption of a Fund was quickly approved. NESCA members will soon receive more information on the adoption and implementation of the NESCA Legal Defense Fund.
SAFETY RESOURCE CENTER ON WEB (Go Top)
A new online resource center containing a broad collection of workplace safety information is now available at www.nysafety.org. Businesses and workers can now access the latest occupational safety and health information and training programs on the web. A one-year grant was awarded to SUNY Albany to catalogue and distribute training materials created by numerous organizations on behalf of the State Hazard Abatement Board. For those who cannot access the web, a resource center is located at the NYS Department of Labor. For more information regarding the center, call 518-485-0773.
DON'T FORGET TO POST YOUR PREVAILING WAGE SIGNS (Go Top)
Members are reminded that a new law became effective on March 6, 2000 which established certain specifications with respect to the style and content of signs posted at public works projects. While the Labor Law has long required contractors and subcontractors to post a statement of wage rates in a prominent and accessible place on the work site, the new law now requires wages and supplements be posted on a weatherproof sign with the phrase "Prevailing Rate of Wages" in lettering no smaller than two inches in height and two inches in width. Even though the law requires that all contractors and subcontractors comply with this posting requirement, according to Deputy Commissioner of Labor Connie Varcasia, the Bureau of Public Work "will accept limited postings as complying with the law as long as it can be determined that all workers on the project are aware of and have access to this information regardless of to whom the responsibility is assigned."
At NESCA's March 9, 2000 membership meeting, we learned from John Tomich, OSHA's Albany Area Director, that his office has adopted a new strategic initiative which will be executed over the next three years. The strategic initiative will target hazards in the construction industry due to employee exposure to lead and silica as well as amputations. The strategic initiative will move forward in phases and will include employer outreach and education along with traditional OSHA enforcement measures. Mr. Tomich also stated that OSHA will use SIC codes to identify companies more likely to be involved in these exposures. Mr. Tomich also spent some time discussing the new proposed ergonomics standard for which public hearings have recently begun. This proposed standard is intended to cover general industry employers involved in manual handling or manufacturing production jobs as well as other general industry employers who have one or more workers experience work-related musculoskeletal disorders (MSDs) after the final standard takes effect. While the construction industry is not covered under the proposed ergonomics standard -- yet -- Mr. Tomich stated it was OSHA's intention to cover construction, agriculture and maritime jobs in future rulemaking. NESCA members should realize, however, that even though construction operations on jobsites are not currently covered, many of us are engaged in manufacturing and material handling operations which may be covered under the general industry standard. More information on the proposed ergonomics standard can be found on page four of this Newsletter. Mr. Tomich mentioned one other thing I found very interesting. He stated that by accessing OSHA's website, we can all find our own company inspections/violations history or the inspections/violations history of any other company for that matter. To access this information, just go to OSHA's website at www.osha.gov, click on "library" then "establishment search", and type in the name of the company you wish to look at. A detailed history of that company's inspections and violations from 1972 to the present will be shown. You may also use the OSHA website to access a list of the most frequently cited OSHA standards for your type of business, based on SIC code. To do this, after clicking on "library", click on "frequently cited OSHA standards" and then type in your SIC code. At our March membership meeting attendance incentive drawing, the pot of $50 was not claimed. Had GraceCom Telecommunications been in attendance you would have taken home the $50. For our April 13th meeting, the pot now rises to $100.
Brian B. Carmer, President
MANUFACTURER NOT LIABLE FOR INJURIES CAUSED BY QUARRY OWNER'S MODIFICATIONS TO ON-SITE MACHINERY (Go Top)
The New York Supreme Court, Appellate Division, Third Department recently affirmed a lower court's holding that a manufacturer is not responsible for injuries resulting from substantial alterations or modifications to equipment by an owner or his employees that render the equipment defective or otherwise unsafe, except where the equipment is purposely manufactured to permit its use without a safety feature. The Court thus left a quarry owner open to liability to its employee's injuries sustained while operating owner-modified equipment. Scardefield v. Telsmith, Inc., a Division of Astec Industries, Inc. 699 N.Y.S. 2d 235 (3d Dept. 1999). Plaintiff, Brian S. Scardefield, in his course of employment duties at a quarry located in Sullivan County, New York, worked with a Telsmith Hercules Model 48 gravel washer ("gravel washer"). Plaintiff sustained serious injuries when his hand was drawn into the gears of the gravel washer while attempting to grease the gears therein, which had been modified by the owner. He then commenced the within action for negligence and strict product liability against Telsmith, Inc., the manufacturer of the gravel washer, and against the quarry's owners. The lower court dismissed the complaint against Telsmith, but maintained that Plaintiff could pursue its claim against the owners of the quarry. The gravel washer was equipped with a steel gear housing cover to protect the gears inside from the elements and to prevent workers from coming into physical contact with the gears. The cover was designed to be removable, although in a cumbersome manner, to allow access for greasing the gears, a practice Telsmith recommended be done only once or twice per year. In the course of the quarry's business, however, a decision was made to grease the gears on a daily basis, and due to the difficulty in removing the gear housing cover, an alteration was made to allow greasing of the machine without removing the cover. A hole was cut in the housing cover, allowing greasing of the gears while they were engaged. This greasing of the gears while the gravel washer was operating avoided down-time in the quarry's operations. While Plaintiff was greasing the gears through this alteration in the gravel washer cover, his right hand slipped into the gears, causing the loss of his thumb, index and middle fingers. Plaintiff sued Telsmith, Inc. for defective design and for failure to warn of the risks and dangers associated with the machine's use. The Court dismissed Plaintiff's arguments, stating, "it is well settled that a manufacturer is not responsible for injuries resulting from substantial alterations or modifications of a product by a third party that render the product defective or otherwise unsafe, except where a product is purposefully manufactured to permit its use without a safety feature." The Court noted that Telsmith, Inc. would not be liable for failure to warn of the consequences of such a modification to the gravel washer, since Telsmith, Inc. neither knew of the modification nor had learned of similar modifications made by other gravel washer owners. The Court noted that the instruction by Telsmith, Inc. to only grease the gears once or twice per year bolstered Telsmith, Inc.'s defense. If the shield needed to be removed so seldomly, there would be no reason to modify the gravel washer to allow for ease in frequent greasing of the gears. In the case at hand, the gravel washer was purposefully manufactured to make it difficult to remove the protective cover, and therefore the manufacturer would not be responsible for manufacturing its machine to permit its use without the shield, or the safety feature. Finally, the Appellate Court agreed with the lower Supreme Court that, ".....the risk of placing one's hand near an operating gear is an obvious one." In conclusion, an owner should not, under any circumstances, allow employees to modify equipment, even if such modifications promote efficiency in the workplace. Injuries resulting from such modifications will not be the manufacturer's responsibility. Not only could the owner of the machine lose employees due to such machine modification, they could be subjected to liability for allowing the same.
Terence J. Burke, NESCA Legal Counsel
All American Masonry P.O. Box 1507 Clifton Park, NY 12065 (518) 899-5611; FAX (518) 899-5611 Contact: Bryan Sell
Belott Carpet Interiors, Inc. 9A Morris Lane Clifton Park, NY 12065 (518) 371-2627; FAX (518) 371-0388 Contact: Norman Belott
GraceCom Telecommunications 14 Corporate Drive Clifton Park, NY 12065 (518) 373-1299; FAX (518) 373-0336 Contact: Sean Grace
NEW YORK JOB GROWTH UP IN 1999 (Go Top)
Newly released private-sector job growth numbers for 1999 show that both New York State as a whole, and Upstate New York separately, posted faster job growth than the national average for the first time in more than a decade. Final 1999 year-end data from the State Department of Labor shows that New York's private sector employment grew by 2.9 percent -- compared to private-sector growth of 2.3 percent nationally. Upstate private-sector jobs increased by 2.5 percent, surpassing the national average for the first time in 11 years. This is also the fastest rate of growth Upstate in 11 years. Private-sector growth in selected Upstate metro areas include: Capital District - 3.3%; Glens Falls - 2.0%; Binghamton - 3.6%; Dutchess - 5.2%; Utica-Rome - 4.5%; and Newburgh - 4.5%.
OSHA ISSUES ERGONOMICS PROPOSAL (Go Top)
OSHA has issued an ergonomics proposal to reduce the level of work-related musculoskeletal disorders such as back injuries and carpal tunnel syndrome. Hearings on the controversial proposal began on March 13, 2000, and approximately 1,100 individuals are signed up to testify over the next nine weeks in Washington, Chicago or Portland. OSHA states that each year 1.8 million workers experience work-related musculoskeletal disorders (MSDs), such as injuries from overexertion or repetitive motion. Work-related MSDs account for one-third of all workers' compensation costs each year because these injuries can require a lengthy recovery time. The ergonomics proposal focuses on jobs in general industry where the problem of work-related MSDs is severe. Construction, agriculture and maritime jobs are to be covered in future rulemaking. Specifically covered under the proposal are general industry employers with workers involved in manual handling or manufacturing production jobs and other general industry employers with one or more workers who experience work-related MSDs after the final standard takes effect. Manual handling jobs include activities such as manually picking and placing items in a warehouse. Manufacturing jobs include operating or loading and unloading machines and making or inspecting products. Employers with manual handling or manufacturing production jobs would need to establish a "basic" ergonomics program for workers in these jobs. A basic program calls for two necessary elements; (1) Management leadership and employee participation and (2) Hazard information and reporting. Employers must name someone to be responsible for ergonomics and to supply resources and training for the program. Employers must also make sure that company policies do not discourage employees from reporting problems. Covered employers must periodically provide information to employees on: ergonomic risk factors (repetition, awkward postures, vibration, cold temperatures, etc.); signs and symptoms of MSDs; and the importance of reporting signs and symptoms early to prevent damage; and setting up a system for employees to report signs and symptoms. A "full" ergonomics program would be required if one or more work-related MSDs actually occurred. A full program includes the two necessary elements of a basic program plus: (3) Job hazard analysis and control which includes analyzing problem jobs for ergonomic risk factors, working with employees to reduce MSDs using engineering, administrative and/or work practice controls, using personal protective equipment, and tracking the progress of these controls; (4) Employee training to include recognition of MSD hazards and measures to reduce hazards; (5) MSD management for workers who have MSDs to include prompt response to injured employees and access to a health care professional. MSD management also includes the provision of necessary work restrictions and work restriction protection (WRP) during the recovery period (100% pay and benefits for employees put on light duty; 90% pay and 100% benefits for employees who must be removed from work). WRP benefits last until the employee can return to work or 6 months have passed, whichever comes first; and (6) Recordkeeping which includes program evaluation at least every 3 years. Members who would like a copy of the proposed ergonomics standard should contact the NESCA office.