Research Proposal: Ethics and Corporate Governance

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Corporate Ethics

OSHA, Ethics, and Liability

The provision of proper working safety conditions is the dual responsibility of the employer and of the state-sponsored Occupational Safety and Health Administration (OSHA), both of which must uphold legislatively constructed standards intended to prevent injury, reduce workplace hazards and to diminish the risk of workplace accidents. Before proceeding toward an examination of the case in question, there is some use in understanding the bureaucratic structure of OSHA, which enters directly into a discussion on the legal implications of the subject. To this end, in 1970, Congress passed the Occupational Safety and Health Act, which "established for the first time a nationwide, federal program to protect almost the entire workforce from job-related death, injury and illness." (McLaury, 1) This would prompt the 1971 creation of the Occupational Safety and Health Administration (OSHA), which would be charged with the responsibility of developing a comprehensive plan toward the end of this accomplishment, a means to administering this plan and the tools with which to reinforce the regulatory demands of this plan.

A key responsibility of OSHA is its oversight of the manner in which organizations contend with industrial machinery, volatile equipment and potentially hazardous materials. OSHA requires that organizations handling heavy machines, flammable matter, unstable chemical compounds or purposefully active explosives must enact very well-maintained standards for proper treatment of working equipment and material as well as its safe and proper housing within the correctly designated location in the facilities in question.

Background:

This provides a firm basis for the discussion hereafter, which proceeds from a 1979 case remarking on the administration of proper safety inspections in a shoe-branding factory. The primary stakeholders in this legal dispute are framed by an incident involving a piece of industrial machinery which is required to be approved by OSHA for adherence to proper safety standards. In this scenario, Gail Merchant Irving is the plaintiff and a primary stakeholder. She was injured by a piece of machinery used to mark shoes with a company logo. The injury occurred during regular usage when her hair became entangled with the gears of the machinery, causing her severe injuries which are not specified by the case review.

Another key stakeholder is the Somersworth Shoe Company, which was Irving's employer at the time of the accident and therefore responsible for compliance with all safety requirements either specified by law or by OSHA inspection findings.

Additional stakeholders are those who have sought to defend themselves against the suit brought up by Irving. These are the Federal OSHA agency which is the target of the suit and the two OSHA inspectors who provided inspections previously. In both 1975 and 1978, the inspectors in question provided what was expected to be a full inspection of the factory facilities, including the machine in question. When this inspection was provided, no issues of compliance failure were found with the machine in question. Following the incident which caused Ms. Irving's injuries, the inspectors returned and established that the machine in question did not adhere to proper safety standards.

The ethical onus here appears to fall upon the OSHA inspectors and the broader agency, as this constitutes the last line of review with respect to worker safety. Any indication that a deficient inspection or one lacking in thoroughness is the cause for the injuries sustained by Ms. Irving is cause to question the ethical orientation of the inspectors with respect to the importance of their thorough conduction of responsibilities and legal imperatives.

Legal Analysis:

The case in question is describes as being heard by the First District Court of Appeals, which is where it landed after Ms. Irving's case was initially and quickly dismissed. The dismissal was based on the legal premise that her suit against the United States failed to pass the 'permissible use of judgment' clause made a precedent in retrospect through the 1988 case of Berkovitz v. United States. This would provide protection for a state or federal agency if evidence illustrates that the specific agents in question operated of their own discretion in failing to properly conduct the required and thorough inspections. This would become the primary legal question at hand in the current case examination. Therefore, in the case, we are told that "if the district court ultimately finds that the OSHA employees had discretion in conducting their inspection and that the discretion involved considerations of policy, it should grant the government immunity." (Fairchild, 6)

This constructs the primary legal case through which the government might gain its own defense. And all legal evidence suggests that courts are tilted to the favor of the government's immunity, as illustrated by an immediate vacating of the district court from hearing the case. This vacating would be prompted by the assumption that the government did have immunity beyond dispute. This bias is underscored by the further explication in the case review that there is a burden to prove that mistakes have not arisen from individual inspector discretion rather than agency failure. This is for reasons of political consistency. So notes the case, which reports that "even when the challenged action is the product of an employee's permissible use of judgment, a suit is barred only if that judgment "is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress' desire to 'prevent judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' Id. At 536- 37, 108 S.Ct. At 1959 (quoting Varig Airlines, 467 U.S. At 814, 104 S.Ct. At 2764). " (Fairchild, 11)

This helps to demonstrate that the burden of proof for a suit against a government agency such as OSHA lay with the plaintiff. Otherwise, there seems to be a greater preparedness on the part of the courts to dismiss such cases as a way of evading such 'second-guessing.' The legal implication is that a vulnerability such as this for the government would impose legislative analysis upon the judicial branch in a way that is not intended. Ultimately, this is the primary contribution of the Berkovitz precedent to this discussion. Much of the analysis of this case proceeds from the finding sin the Berkovitz case. The case review tells that in the application of Berkovitz, the discussion is not on whether inspections had failed, as it is clearly evident that they have. Instead, the primary question will revolve on whether this failure may be attributed to the individual inspectors or the agency as a whole. If it can be attributed to the agency, than Irving's case has merit to be heard. If it can be attributed to the inspectors, than the government is immune to the further implementation of suit and the fate of the inspectors will be at the mercy of said agency.

Ethical Analysis:

Before assessing the outcome of this case from a practical standpoint, it is appropriate to consider the ethical implications of the discussion, and especially of the discretion clause. First and foremost, it is clear that Ms. Irving is a victim of inadequate safety provision standards. Her accident resulted from negligence, which is confirmed by the extent of her injuries and the findings by the post-accident OSHA inspection that the offending machine was not properly suited to safety regulations.

Therefore, a failure to properly compensate Mr. Irving for her injuries and all related entitlements is a clear ethical failure on the part of the courts. In many ways, an application of the terms of Berkovitz seems to suggest the intent to pass off blame from the OSHA agency to the inspectors in question. Here, we clarify that in a comparable case scenario "the Eighth Circuit, relying on Berkovitz, has held that while the Defense Department's decision to entrust an explosive manufacturer with the primary responsibility of ensuring that it complied with safety regulations fell within the discretionary function exception, the exception did not apply to claims resulting from the Defense Department inspectors' failure to follow Department policy: 'In the case before us, as in Berkovitz, the initial discretion granted by the regulations to the Defense Department was broad; the inspectors, however, violated the Department's own policy directives by failing to comply with specific procedures mandated by the Defense Department." (Fairchild, 17) In this scenario, we can see something of a convoluted determination to insulate the agency from the ineptitude of its own personnel.

Such ineptitude would ultimately leave Ms. Irving without the legal resources to be compensated duly for her suffering. This is a fundamental miscarriage of justice which demonstrates a greater emphasis on protecting the political and bureaucratic processes of the government than of protecting individual employers.

Contributing Factors:

The key contributing factors to a decision with negative ethical implications is the desire on the part of the government to protect itself from liabilities resulting from negligence on the part of OSHA. The idea that an inspection is ever discretionary removes OSHA from responsibility as a… [END OF PREVIEW]

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