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Faced With a Life-or-Death Situation, This Bad Boss Stuck His Head in the Sand

When one of his workers became buried in a bin of sand — initially up to his shoulders — company procedure and government regulations demanded two simple actions of Don MacKenzie, a plant manager at Dukane Precast, Inc.: Mr. McKenzie should have called the local fire department, and he should have halted any unsafe rescue attempts.

Instead, Mr. McKenzie reacted with “plain indifference” and “nonchalance,” according to an administrative law judge. After a few minutes watching untrained employees scramble ineffectively to save their co-worker’s life — actions that were forbidden and could have endangered them all — Mr. McKenzie decided there was no emergency. He left the scene and continued his daily routine in another part of the Dukane concrete-products plant, which is in Naperville, Ill.

Not until an hour or so later, with the engulfed worker begging for someone to dial 911, did Mr. McKenzie return to the area and finally call the fire department.

Mr. MacKenzie is our latest “Bad Boss of the Month.” In May 2015 the U.S. Court of Appeals for the Seventh Circuit found that he acted “recklessly” and “willfully,” and upheld a resulting $70,000 penalty against Dukane.

According to court records, the harrowing incident started one February morning in 2012. William Ortiz, a mid-level supervisor under Mr. MacKenzie, climbed into an 18-foot deep silo to clean the sides of the container. It was about two-thirds full of sand. As he began working, the sand gave way and he was quickly engulfed.

Mr. Ortiz was scared and in pain, he later told a tribunal of the Occupational Safety and Health Administration (OSHA). Every time he took a breath, the pressure grew tighter on his chest. He thought he was going to die.

Upon hearing his screaming, several co-workers ran to the bin, jumped in, and began using buckets to dig out Mr. Ortiz. About 10 minutes later Mr. MacKenzie arrived and, despite having received training to the contrary, allowed their risky efforts to continue. He joked briefly with Mr. Ortiz and then, without acknowledging what an OSHA judge called a “dire need for assistance” — and without informing his superiors of the situation — Mr. MacKenzie matter-of-factly walked away.

(Mr. MacKenzie told OSHA that he believed Mr. Ortiz was in no danger and that the relevant safety rules didn’t apply; the judge dismissed his testimony as “not objectively plausible.”)

By the time the Naperville Fire Department’s Technical Rescue Team arrived, about 90 minutes after Mr. Ortiz’s initial engulfment, the trapped worker needed intravenous morphine for his pain. It took four more hours to free Mr. Ortiz with a special vacuum truck; he was hospitalized with multiple squeezing injuries to his lower body, including a herniated disk and a torn meniscus.

As the fire department was helping Mr. Ortiz, Dukane executives sprang into action — on damage control. They called an attorney and a crisis-management expert; worked with Mr. MacKenzie to get everyone’s story straight; and ordered a plant-wide cleanup ahead of an expected OSHA investigation. Warning signs quickly appeared by the sand bins; none had been posted when Mr. Ortiz got buried.

The next morning, before OSHA arrived, Mr. MacKenzie helped to oversee an all-hands effort to get rid of broken equipment and move improperly stored chemicals.

Despite these actions, OSHA found serious violations — including a missing railing at the top of the sand bins — and was especially critical of Mr. MacKenzie’s “willful” failure to implement safety rules.

In its appeal of the $70,000 penalty before the Seventh Circuit, Dukane argued that Mr. MacKenzie hadn’t done anything wrong: OSHA regulations call for a rescue plan, it said, and Dukane had a plan; the rules don’t say anything about acting on the plan.

“That may be a permissible literal interpretation,” wrote Judge Richard Posner drily, “but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work — not even call 911. Literalism frequently, and in this instance, leads to absurd results.”

There is “no doubt,” concluded Judge Posner, that Mr. MacKenzie failed in his duty.

» Opinion of Seventh Circuit
» Opinion of OSHA administrative law judge


The Employment Law Group law firm was not involved in Dukane Precast, Inc. v. Perez. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

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