APPEARANCES:
Carla M. Casas, Esquire Ralph George, President
Karen E. Mock, Esquire All Steel Consultants, Inc.
U.S. Department of Labor Palmetto, Florida
Atlanta, Georgia For the Respondent, pro se.
For the Complainant.
BEFORE: Dennis L. Phillips
Administrative Law Judge
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review
Commission (“the Commission”) under section 10(c) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and
Health Administration (“OSHA”) inspected a work site of All Steel Consultants, Inc.
(“All Steel” or “Respondent”) on August 12, 2010. The site was located in St.
Petersburg, Florida, and Respondent’s employees were engaged in roofing work. After
the inspection, Respondent was issued a four-Item serious citation. Respondent contested
the citation and the proposed penalties, and this matter was assigned to the Commission’s
simplified proceedings pursuant to Commission Rule 203, 29 C.F.R. § 2200.203. The
hearing in this matter was held in Tampa, Florida, on July 14 and 15, 2011.
The parties
have filed post-hearing briefs and reply briefs.
Background
On August 12, 2010, All Steel was installing metal roofing on the building at the
site. All Steel had been at the site for about a month. The upper roof had a 4-12 slope,
meaning it rose 4 inches in height for every 12 horizontal inches. The upper roof’s eave
was 28 feet from the ground, and the lower roof’s top elevation was 21 feet 8 inches from
the ground. The distance from the upper roof’s eave to the lower roof was thus 6 feet 4
inches. All Steel had a crew working on an area of the upper roof on August 12, 2010.
(Tr. 65-71; CX-1, CX-11).
OSHA Compliance Officer (“CO”) Gerardo Ortiz was driving by the site on
August 12, 2010, and he saw what looked like fall hazards.
He parked his car about 300
feet from the site and took photographs and a video of what he saw.
He saw six
employees on the roof. Three were laying down metal roof panels and affixing the panels
to the roof. The other three were taking panels from a stack on the roof and carrying them
to the employees doing the installing. All the employees wore harnesses and lanyards.
Two had their lanyards tied off to lifelines; however their lifelines were not properly
adjusted, were too long, and, in the event of falls, the lifelines would not have kept the
employees from hitting the lower roof below. The other four employees were not tied off
to anything, and at least one had his lanyard dragging behind him. The two employees
who were tied off were working right on the edge of the roof. Another employee who
was not tied off was also working near the edge.
(Tr. 91-101, 105-06, 280).
The CO discussed his photographs and what they depicted.
CX-2 shows Mr.
Gonzalez at the edge of the roof, Mr. Rodriguez standing farther back on the left side of
the roof, and Mr. Clawson kneeling on the roof. CX-3 shows Messrs. Gonzalez and
Clawson near the edge of the roof, Mr. Rodriguez and another employee standing farther
back on the left, and another employee kneeling and working right at the edge of the
roof; this employee is tied off but his lifeline is too long.
CX-4 portrays an employee
walking on the roof without being tied off, indicated with a “C,” and the anchor point
where the two lifelines in use were attached, indicated with an “A.” CX-5 shows Mr.
Gonzalez, at the bottom of the photograph, and Mr. Clawson in the middle with his
lanyard clipped to his body and not attached to any lifeline. CX-6 also shows Mr.
Clawson not tied off at the roof’s peak and another employee with his lanyard attached to
a lifeline.
CX-7 depicts Mr. Gonzalez with his lanyard attached to a lifeline, which is
slack. CX-8 depicts two employees carrying a panel in front of them, which restricts their
view. Mr. Rodriguez,
indicated with an “A,” has his lanyard dragging behind him, and
the other employee has excessive length on his lifeline. The CO noted that there were
numerous tripping hazards on the roof, such as tools and other items, which exacerbated
the fall hazard.
The CO further noted that a fall from the upper roof to the lower roof,
which was also sloped, could have resulted in an employee going all the way to the
ground. (Tr. 95-99, 101-15; CX-2 through CX-8, CX-14). Mr. George himself admitted
there were tripping hazards “all over the place” on the roof.
(Tr. 516).
CO Ortiz proceeded to the site and met with Mr. Hodge, the project manager for
Holland Construction, the general contractor at the job site. Mr. Hodge called up to Mr.
Gonzalez, who came down, and the CO held an opening conference with him. Mr.
Gonzalez said he was the foreman, the “competent person” and the “person in charge”
for All Steel at the site. He had no explanation for why employees were not tied off, and
he shrugged his shoulders and seemed unaware of the hazards. The CO also interviewed
Messrs. Rodriguez and Clawson.
Mr. Rodriguez’s unsigned interview statement
prepared by the CO indicates that Mr. Rodriguez told the CO on August 12, 2010 that the
anchor point was too far and it was easier to remove his harness from the rope grab.
(Tr. 164; RX-N). Mr. Clawson admitted he had not been using fall protection and had no
good answer as to why. Mr. Gonzalez told the CO that he had been trained in the past by
Mike Price, who had safety responsibilities at All Steel. Mr. Price was no longer working
in that capacity. The CO held a closing conference with Mr. Hodge and Ray Petitpren,
All Steel’s project manager, who had arrived at the site.
The CO expressed his concerns
about the lack of proper fall protection at the site. Messrs. Hodge and Petitpren told him
they would make sure that everyone was tied off “100 percent of the time.” CO Ortiz
asked about training records, and Mr. Petitpren called All Steel’s office. Mr. Petitpren
was told that if the CO wanted training records, he would have to subpoena them. CO
Ortiz never received any training records. (Tr. 64, 101, 127-34, 197, 212, 280, 349).
Jurisdiction
There is no dispute that the work site was a construction project and that the
employees performing the roofing work on the building on August 12, 2010 were All
Steel employees. The Court finds that Respondent is an employer with employees that is
engaged in a business affecting interstate commerce.
See sections 3(3) and 3(5) of the
Act, 29 U.S.C. §§ 652(3) and 655(5). The Court further finds the Commission has
jurisdiction over the subject matter and the parties in this case.
The Secretary’s Burden of Proof
To prove a violation of an OSHA standard, the Secretary must demonstrate that: (1) the standard applies, (2) its terms were not met, (3) employees were exposed to the violative condition, and (4) the employer either knew of the condition or could have known of it with the exercise of reasonable diligence. Astra Pharm. Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
Citation 1 – Item 2
This item alleges a serious violation of 29 C.F.R. § 1926.501(b)(10), which provides, in relevant part, as follows:
Roofing work on Low-slope roofs. Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system.
The citation alleges that on August 12, 2010,
while installing metal roofing on a
low-slope roof at the site, employees were observed not attached to their personal fall
arrest systems, exposing them to serious falls.
For the cited standard to apply, the roof
at the site had to be a “low-slope roof.” A low-slope roof is “a roof having a slope less
than or equal to 4 in 12 (vertical to horizontal).” See 29 C.F.R. § 1926.500(b). Mr. Hodge
testified that CX-10, one of the architectural drawings for the building, showed that the
roof on which All Steel was working was a 4-12 roof. He explained that meant the roof
rose 4 inches in height for every 12 horizontal inches. (Tr. 66). Mr. Hodge’s testimony,
together with CX-10, establishes the roof was in fact a low-slope roof.
For the standard to apply, the Secretary must also prove that the lower level to
which employees could have fallen was at least 6 feet. Mr. Hodge testified that CX-11,
another architectural drawing for the building, showed that the eave of the roof on which
the employees were working was 28 feet from the ground. He further testified that CX-11
also showed the top elevation of the lower roof to be 21 feet 8 inches from the ground,
making the fall distance 6 feet 4 inches. (Tr. 67-71). Mr. Hodge’s testimony and CX-11
establish that the fall distance from the upper roof to the lower roof was 6 feet 4 inches.
The Court finds that the Secretary has demonstrated that the cited standard applies.
The record further shows that the terms of the standard were not met and that
employees were exposed to the cited hazard. The CO’s testimony set out above, along
with CX-2 through CX-9, shows that four employees on the roof, although they were
wearing harnesses and lanyards, were not tied off to anything.
Mr. Clawson was one of
those employees. The CO observed him near the edge, standing next to Mr. Gonzalez, as
depicted in CX-3. Four employees working on the roof without being tied off establishes
that the terms of the standard were violated. All of these employees were exposed to the
cited hazard, as any of them could have tripped or slipped in the course of their work and
fallen off the edge of the roof.
This is especially illustrated by Mr. Clawson, who was
photographed standing near the roof’s edge. The Court finds that the Secretary has shown
the second and third elements of her burden of proof. (Tr. 137).
To prove knowledge, the Secretary must show that the employer knew of the violation or could have known of it with the exercise of reasonable diligence. The actual or constructive knowledge of a supervisory employee is imputable to the employer. See, e.g., Halmar Corp., 18 BNA OSHC 1014, 1016 (No. 94-2043, 1197), citing Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-0692, 1992).
Mr. Gonzalez was All Steel’s foreman at the site on August 12, 2010. He testified
that he was a “competent person,” that he was responsible for supervising the other
employees and making sure they worked safely, and that he had the authority to correct
workplace hazards.
He also testified that the company rule is for employees to tie off
whenever they are over 6 feet above a lower level. Mr. Gonzalez admitted he broke the
rule on August 12, 2010, by allowing some employees to not tie off. He started off telling
them they were to be “100 percent tied off.” The employees were walking and carrying
materials on the roof, and their lines were getting tangled up. Mr. Gonzalez thought the
employees were endangering themselves more by tying off. He told them they could
work without tying off as long as they stayed on the upper part of the roof and did not
work near the edge.
He believed it was safer for them to not tie off if they stayed farther
back on the roof. Mr. Gonzalez did not know if any employees had gone near the edge of
the roof without tying off. (Tr. 344, 347-50, 355-56, 359-60, 366-71, 405).
Mr. Gonzalez’s testimony was not persuasive. First, the CO testified that when he
asked why employees were not tied off, Mr. Gonzalez had no explanation and shrugged
his shoulders. (Tr. 129-30). Mr. Gonzalez testified that he thought he had told the CO the
employees were not tied off because they had been “moving around a lot” and when they
were tied off they “had been getting themselves all tangled up.” (Tr. 404-05). The Court
finds that the CO’s testimony about Mr. Gonzalez’s response at the time of the inspection
is more reliable than Mr. Gonzalez’s testimony at the hearing.
Second, Mr. Gonzalez’s testimony about telling the employees they did not have
to tie off was vague.
He said he did not remember how many employees he told to not
tie off. He also said he did not tell them all at once. Rather, he told them individually, and
he did not remember specifically what he told them. (Tr. 369-70). Further, his testimony
that he did not know if any employees had gone near the edge without tying off is belied
by CX-3. CX-3 shows Mr. Clawson right next to Mr. Gonzalez. Both are near the roof’s
edge. The CO learned that the employees near the edge in CX-3 were Messrs. Clawson
and Gonzalez when he interviewed them. Mr. Clawson admitted to the CO that he was
not tied off. (Tr. 106-08, 129-31). In addition, Mr. Gonzalez identified himself at the
hearing as the person indicated with an “A” in CX-3. (Tr. 364).
Third, when the CO asked Mr. Clawson why he was not tied off, he had no good
answer, other than indicating that he “got carried away.” (Tr. 131). And Mr. Rodriguez’s
response, when asked why he was not tied off, was that it was easier for him to not tie
off. Mr. Rodriguez, who also testified at the hearing through an interpreter, said he did
not think he made such a statement to the CO. While the Court found some of Mr.
Rodriguez’s testimony believable, other of his testimony was not. For example, he stated
he told the CO that there was “one time” that he had not been “hooked up.”
Based on
the CO’s photographs and video, and the Court’s credibility findings as to the CO set out
supra, the CO’s testimony about what Mr. Rodriguez told him is credited. (Tr. 131, 218;
CX-8, RX-N). In the Court’s view, if Mr. Gonzalez had told the employees what he
testified to at the hearing, it is expected that they would have given that information to
the CO. That they did not persuades the Court that Mr. Gonzalez’s testimony about what
he told the employees as to tying off at the site that day was not reliable. Even if it were,
it is clear from the record that Mr. Gonzalez allowed four employees to work on the roof
without tying off, as required by the cited standard and by All Steel’s own rules.
Based on the foregoing, the Court concludes that Mr. Gonzalez had actual knowledge of the fall protection violations at the work site. This is particularly true in light of CX-3, which shows Messrs. Clawson and Gonzalez right next to each other near the roof’s edge. The knowledge of Mr. Gonzalez, a foreman with All Steel, is imputable to Respondent. The Secretary has therefore demonstrated the knowledge element.
All Steel asserts that the alleged violation was due to unpreventable employee
misconduct. R. Brief, p. 4; R. Reply Brief, pp. 7-9. To prove this affirmative defense, the
employer must show that it had: (1) established work rules designed to prevent the
violation; (2) adequately communicated those rules to its employees; (3) taken reasonable
steps to discover violations of those rules; and (4) effectively enforced those rules when
they were violated. (Halmar Corp., 18 BNA OSHC at 1017-18, citing Pride Oil Well
Serv., 15 BNA OSHC at 1814; Tr. 535). As the Secretary notes in her post-hearing brief,
it is more difficult for employers to establish the employee misconduct defense when the
misconduct is that of a supervisory employee, because “it is generally the supervisor’s
duty to protect the safety of employees under his supervision.” A & W Constr. Servs.,
Inc., No. 00-1413, 2001 WL 987461, at *7 (O.S.H.R.C.A.L.J., Aug. 15, 2001) (citing
United Geophysical Corp., 9 BNA OSHC 2117, 2123 (No. 78-6265, 1981)).
See S.
Brief at pp. 32-33. Where multiple employees participate in an activity that violates an
employer’s work rule, the unanimity of such noncomplying conduct also suggests
ineffective enforcement of the work rule. GEM Indus., Inc., 17 BNA OSHC 1861, 1865
(No 93-1122, 1996) (finding that three employees failing to tie off showed ineffective
enforcement of employer’s fall protection policy). Mr. Gonzalez’s failure to follow the
safety rules and involvement in the misconduct is strong evidence that All Steel’s safety
program was lax.
See Ceco Corp., 17 BNA OSHC 1173, 1176 (No. 91-3235, 1995).
All Steel has a safety rule which requires an employee exposed to a fall of 6 feet
or greater to wear a full body harness with a lanyard and to tie off.
(Tr. 366; RX-H, pp.
5, 17). Mr. Gonzalez knew the rule, but he did not follow it on August 12, 2010. (Tr.
366). Mr. Gonzalez testified that he had been in construction for 11 years, had been doing
roofing work for about eight years, and had been a crew leader or foreman with All Steel
for about five years. He said Mike Price had trained him and that his training had totaled
over 20 days.
He himself had trained Mr. Rodriguez, who was a new employee, by
showing him “how to use the harness, how to put it on, be tied off.” Mr. Gonzalez did
this training before Mr. Rodriguez went up on the roof. Mr. Gonzalez stated that he and
Alvin Ramanand, another “competent person” who was working on the roof on August
12, 2010, were “constantly training” Mr. Rodriguez. He further stated that after the
OSHA inspection, he was disciplined for letting employees work without tying off and
for using “100 percent tie-off” for fall protection instead of a warning line. Mr. Gonzalez
knew that he was expected to use a warning line on the roof, but he thought tying off was
better. (Tr. 341-45, 348-49, 355-57, 367-68, 372-78, 383-84, 390, 396-404).
RX-I shows training Mr. Gonzalez had received in 2005, 2007 and 2009 that
addressed, inter alia, wearing a harness and tying off. He received “Safety Rules”
training on February 18, 2010, which addressed the need to wear a harness and tie off,
and, on that same date, All Steel’s “Actions for Safety Violations.”
RX-I also shows
safety audits of sites where Mr. Gonzalez was the crew leader in 2006 and 2007. Almost
all the audits state the employees had on their personal protective equipment (“PPE”) and
were tied off.
RX-K shows the daily “Job Site Safety Talks” that Mr. Gonzalez gave at
his job sites in 2008, 2009 and 2010, and RX-J shows the safety talks he gave at the
subject site, from July 12 through September 16, 2010; tying off was generally addressed
weekly.
On August 13, 2010, the day after the OSHA inspection, Mr. Gonzalez was
issued a “Standard Notice Form.” It addressed his failure to follow the safety plan and his
allowing the crew to not tie off. It also stated his next infraction could result in loss of
wages or termination. On December 8, 2010, Mr. Gonzalez received fall protection
training from Mr. Price. On December 9, 2010, Mr. Gonzalez was issued another
“Standard Notice Form,” which also addressed the subject site. It noted Mr. Gonzalez
had changed the site safety plan and informed him he should not do so without approval
from “the safety director, a qualified person or the main office.” (Tr. 313-14, 328-31;
RX-D, RX-H, RX-I).
Ralph George, All Steel’s president, testified that RX-H was the site-specific plan
for the subject site, that it required a warning line to be used, and that Mr. Gonzalez
instead used “100 percent tie-off” and then allowed some employees to not be tied off.
Mr. Gonzalez received two counseling statements from Mr. Price. He had no loss of pay
or other penalty, even though he had been “written up” before.
Mr. George noted that
there were three “competent persons” on the roof on August 12, 2010, that is, Messrs.
Gonzalez, Ramanand and Ochoa, and that none of them was enforcing the tie-off policy.
He also noted that Mr. Price disciplined all of the employees who had been up on the roof
that day.
Mr. George issued CX-20, a discipline notice to Mr. Petitpren, as he did not
think Mr. Petitpren was monitoring safety adequately. No penalty was imposed, although
this was the third time that OSHA had found violations on a site Mr. Petitpren was
supervising. Mr. George agreed that it would be an incentive, when a safety rule was
violated, for the employee responsible to have his pay docked. He indicated, however,
that it was difficult for him to take such action. (Tr. 280, 283-86, 303-07, 314-15, 328-34,
376,493, 498, 514-15; CX-20).
The Court finds that All Steel did not take adequate steps to detect violations of
its rules.
When violations were discovered, it did not effectively enforce its rules. All
Steel presented no evidence of any site audits conducted for the years 2008, 2009 and
2010. And the record shows that Mr. Price did not visit the subject site before the
inspection. Despite Mr. Gonzalez’s training and experience, and his knowledge of All
Steel’s tie-off rule, he failed to enforce the rule at the work site. He also failed to follow
All Steel’s site-specific plan for the site, which, as he himself testified, was to use a
warning line. Mr. Gonzalez received disciplinary notices for these failures. But, no
monetary or other penalty was imposed, even though, as Mr. George testified, Mr.
Gonzalez had been written up before. Mr. George further testified that he himself had
written up Mr. Petitpren after the subject OSHA inspection, for not monitoring safety
adequately at his sites. Again, no penalty was imposed, even though this was the third
time OSHA had found violations at one of Mr. Petitpren’s sites. That supervisory
employees were not penalized for their safety failures is evidence of a deficient safety
program.
Further, that Mr. Gonzalez, a foreman, did not enforce the tie-off rule is
strong evidence that All Steel’s safety program was lax and that the violation was not in
fact due to unpreventable employee misconduct.
(Tr. 460). See Ceco Corp., 17 BNA
OSHC 1173, 1174 (No. 91-3235, 1995) (citation omitted).
In support of its defense in this matter, All Steel has presented evidence of prior
citations issued that OSHA later deleted. The record shows that All Steel was cited in
September 2008 and in June 2009 for violating fall protection standards. Mr. George
submitted records of training, site audits and disciplinary actions for the employees
involved in these citations, and OSHA deleted the citations.
(Tr. 419-24; RX-A, RX-B).
The record also shows that All Steel was cited in September 2010, for a fall protection
violation observed on August 4, 2010 concerning All Steel’s warning line system at the
subject site.
This citation was also deleted.
(Tr. 295-96, 299-301, 306; RX-C). The
deletion of these three prior citations, however, does not avail All Steel. This is especially
true in light of the citation issued after a violation was observed at the same site at issue
here, on August 4, 2010. Although this citation was deleted, Mr. George agreed that the
citation put All Steel on “heightened alert” in regard to safety at the site. (Tr. 307). And,
as CO Ortiz testified, after an OSHA inspection at the same site a week before, he would
have expected a “flawless” safety system to be in place and no violations. (Tr. 474).
Based on the record, and for all the reasons above, the Court concludes that All
Steel has not shown that the alleged violation was due to unpreventable employee
misconduct. Its defense is therefore rejected. This Item is affirmed as serious.
It is clear
that a fall from the upper roof could have caused serious injury or death.
As set out
above, the CO noted that a fall from the upper to the lower roof, which was also sloped,
could have resulted in an employee going all the way to the ground. (Tr. 95, 126-27, 138-39).
A penalty of $3,000.00 has been proposed for this item. In assessing penalties, the
Commission must give due consideration to the gravity of the violation and to the size,
history and good faith of the employer. See section 17(j) of the Act, 29 U.S.C. § 666(j).
The CO testified that the violation had high severity, in that an employee who fell from
the roof could have died, and greater probability, in that the four employees were
working atop the roof, and would have continued working, without any fall protection.
He also testified that while a reduction for size was given, no reductions for history or
good faith were given.
He noted that All Steel had a history of violations, that no
training records were ever provided, and that while there was a job site safety plan, it was
not being followed. He also testified that All Steel did not take safety “very seriously.”
(Tr. 137-42, 179-81, 189-90, 194-96, 441-43, 471-72, 475).
All Steel urges it should have been given a greater reduction in the penalty for
size. (R. Brief, p. 3). The CO testified that he believed that he could have been told by
Mr. Petitpren that All Steel had 42 employees at the time of the inspection.
Based on
that number, he applied a 40 percent reduction to the penalty. He agreed his investigation
notes did not show the information.
He also said that if All Steel had under 25
employees, the reduction would have been 60 percent.
(Tr. 140, 443, 477-82).
Mr. George said that he was not sure how many employees he had at the time of
the subject inspection. He also said the number had been very “up and down” for the past
two years. He presented RX-R at the hearing. RX-R is a letter dated January 3, 2011 Mr.
George sent to the prior judge in this matter that referred to a conference call conducted
by the Court on December 7, 2010. Among other things, it states that at that time frame,
All Steel had “only 20 employees with only 4 employees working in the field.” (Tr. 410-14, 515; RX-R). The Court finds the CO’s testimony regarding the size of the company at
the time of the inspection to be tentative, at best. His testimony is the only evidence that
All Steel had 42 employees at the time of the inspection.
The Secretary has not
persuaded the Court that All Steel employed at least 25 employees at the time of the
inspection. All Steel is therefore entitled to a 60 percent reduction in the penalty on the
basis of size, instead of the 40 percent OSHA applied. (Tr. 482; RX-U).
All Steel also urges it should have received a reduction in penalty for history. (R.
Brief, p. 3). The CO testified that he researched All Steel’s history, which showed the
company had been cited once in 2008, twice in 2009, and twice in 2010. (Tr. 142, 182,
186-87). Three of these citations were deleted, i.e., the 2008 citation, one of the 2009
citations, and the citation resulting from the inspection at the subject site on August 4,
2010.
(Tr. 187-89; RX-A through RX-C, RX-S). The other 2009 citation went before a
Commission judge, but All Steel and the Secretary ultimately settled the case in March
2011.
All Steel urges that since it had a “clear history” at the time of the inspection at
issue, it should have received a reduction for history. (Tr. 526-27). AAD Yarbrough
testified the policy in August 2010 was that, if a company had been cited before but the
citation was deleted, a reduction for history would be given. (Tr. 444-46). In the Court’s
view, since three of the prior citations were deleted and one was not final until months
after the date of the subject citation, All Steel is entitled to a 10 percent reduction for
history. (Tr. 460-61; RX-U).
Finally, All Steel urges it should have received a reduction in penalty for good faith. (R. Brief, p. 4). The Court disagrees. As the CO testified, the violation had high gravity. All Steel had a fall protection plan at the site, but the foreman did not follow it and also allowed four employees to work without tying off. (Tr. 138-41, 330, 474). The site was inspected the week before, and All Steel was cited for fall protection violations. See RX-C. Mr. George said that All Steel was on “heightened alert” after that inspection. (Tr. 307). Despite that fact, there were further fall protection violations on August 12, 2010, resulting in the subject citation. And following the inspection, no meaningful discipline occurred. Messrs. Gonzalez and Petitpren were “written up,” but neither was penalized with monetary or other sanctions. (Tr. 303-06, 330-31). In the Court’s view, the facts of this case show a safety program with significant deficiencies. The Court finds that All Steel failed to take any meaningful efforts to ensure that its safety plan was actually being implemented at the worksite on August 12, 2010.
A final point about this case must be made. Mr. Rodriguez, one of the employees
who was up on the roof without being tied off, was a new hire who had been at the site
four or five days before the inspection. He was given 15 to 20 minutes of training on the
ground his first or second day at the site, right before his first time to go up on the roof.
He was 20 years old, new to the United States, and had never worked on a roof before.
(Tr. 240-41, 245-46, 399). The Court finds that it is not good faith for a roofing
company’s crew chief to provide 15 to 20 minutes of undocumented training on how to
wear a harness to such a fledgling worker, before directing the new hire to work up on a
roof without any fall protection or appreciation for the fall hazards about him. Allowing
such an inexperienced employee to work on a roof without proper training and without
tying off is also further evidence of the deficiencies in All Steel’s safety program.
In view of the above, and applying an additional 30 percent reduction to the
gravity-based penalty (20 percent for size and 10 percent for history), the Court finds that
a penalty of $1,500.00 is appropriate for this item. A penalty of $1,500.00 is assessed.
Citation 1 – Item 3
This item alleges a serious violation of 29 C.F.R. § 1926.502(d)(16)(iii), which states as follows:
Personal fall arrest systems, when stopping a fall, shall: … (iii) be rigged such that an employee can neither free fall more than 6 feet (1.8 m), nor contact any lower level.
The citation alleges that on August 12, 2010, while installing metal roofing on the
roof at the site, employees were observed with excessive slack on their vertical lifelines
that were used as part of their personal fall arrest systems, exposing them to serious falls.
The CO testified that the two employees who were tied off to lifelines did not adjust their
lifelines to remove the slack. If one of them had fallen from the roof, the lifeline would
have been too long to keep the employee from hitting the lower roof below. One of these
employees was Mr. Gonzalez, the foreman; he is shown with an “A” in CX-2 right at the
edge of the roof. The other employee, who the CO could not identify, is shown with a
“D” in CX-3; he too was right at the roof’s edge.
(Tr. 95-97, 100, 104, 107, 137-38).
According to the CO, the lifelines of both employees were anchored to the roof at
the point marked with an “A” in CX-4. Mr. Gonzalez wore a body harness and a 6-foot-long shock-absorbing lanyard; the shock-absorbing component added 2.5 to 3 feet, and
the height of the D-ring on his harness added about 5 more feet.
There was a “rope
grab” that attached the lanyard to the lifeline, but the lifeline was not adjusted.
The CO
estimated that the system as utilized would not have arrested a fall for 14 feet.
He said
that Mr. Gonzalez made no adjustments on the rope grab as he moved about the roof. The
lifeline of the other employee, shown on the left side in CX-3, went all the way across the
roof to the anchor point shown in CX-4. This employee also had on a 6-foot lanyard, and
his lifeline was too long. In addition, his lifeline went underneath a metal panel, as
depicted in CX-3. This could have abraded the lifeline or, in the event of a fall, the
lifeline could have wrapped around the panel and taken the panel off the roof with the
employee. The CO saw this employee, as shown in CX-8, carrying a panel with another
worker; his visibility was obstructed by the panel, and his lifeline was wrapped around
the same panel shown in CX-3. (Tr. 105-15).
Mr. Gonzalez testified that he made sure his lifeline was taut so that if he fell, he
would not hit the next level. He said his lanyard was 6 feet long. It would have extended
about 3 feet in a fall, and taking that plus 5 more feet, he would have needed 8 feet of
clearance to make sure he did not hit the level below.
He did not remember what the
distance to the level below was, but said it could have been 7 to 8 feet. Mr. Gonzalez
agreed that the unidentified employee carrying the panel in CX-8 had too much slack on
his lifeline.
He said that was “not right,” that he should have called attention to it, and
that he was not paying attention to what the others were doing. He also agreed that the
lifeline going under the panel was a hazard. (Tr. 360-66; CX-8).
In view of the record, the Court finds that the standard applies, that its terms were
not met, and that employees were exposed to the cited condition. Mr. Gonzalez admitted
the employee in CX-8 had too much slack in his line and that this was an unacceptable
work practice.
(Tr. 365; CX-8). And his testimony shows that, if he himself had fallen
off the roof, he would have hit the lower level below.
The record also establishes All
Steel’s knowledge of the cited condition. Mr. Gonzalez, the foreman, was himself in
violation of the standard, and he should have been aware of the condition of the other
employee’s lifeline. This Item is affirmed as serious.
The proposed penalty for this Item is $3,000.00. The CO’s testimony about the penalty for Item 2 also applies to this Item. (Tr. 137-42). The Court finds it appropriate to apply the additional 30 percent reduction for size and history to this Item, resulting in a penalty of $1,500.00. That penalty is assessed.
Citation 1 – Item 4
This Item alleges an “other” violation of 29 C.F.R. § 1926.503(b)(1), which provides in relevant part that:
Certification of training. (1) The employer shall verify compliance with
paragraph (a) of this section by preparing a written certification record.
The written certification record shall contain the name or other identity of
the employee trained, the date(s) of the training, and the signature of the
person who conducted the training or the signature of the employer.
The citation alleges the employer did not prepare a written certification record as
required for each employee working on the roof at the subject site. CO Ortiz testified that
Mr. Rodriguez told him he had on-the-job training, but no formal training. The CO
agreed that in RX-N, the employee’s statement, Mr. Rodriguez had indicated that: he
had received training from Mr. Gonzalez in the safe use of a harness, lanyard and anchor
point; he was also trained in general safety matters, like hard hats and gloves; and his co-workers inspected his harness before he started working. The CO believed Mr. Rodriguez
was not trained properly due to his behavior on the roof. He also believed he was not
trained by a competent person, as Mr. Gonzalez did not exercise control of the site in
terms of safety. The CO learned that Mr. Price, the person who had been training
employees, had gone back to being a site foreman.
He requested training records from
All Steel, but he never received any. There is no record that Mr. Gonzalez made a written
certification of training Mr. Rodriguez to recognize the hazards of falling and minimizing
these hazards.
(Tr. 134, 138, 155-56, 163-65; RX-J, RX-N).
All Steel points to RX-J as containing a record of a “100% Tie-Off Class” held at
the subject site on August 21, 2010. It notes that record shows the instructor’s initials and
the signatures of attending crew members. It also notes the CO’s admission that the cited
standard does not set out a time line for compliance. (Tr. 170, 326-27). R. Brief, p. 2.
RX-J does, in fact, reflect that a safety talk on “100% Tie Off” was held at the site on
August 21, 2010. The document shows the initials of the instructor and the signatures of
a number of crew members, including Mr. Rodriguez.
Mr. George considered the
document to be the required certification. (Tr. 327). The Court disagrees. The safety talk
was held nine days after the OSHA inspection and thus postdates the time when Mr.
Rodriguez first went up on the roof. While the standard does not state when the required
training and certification must take place, it is clear that the intent of the standard is for
the employer to provide the training and certification before the employee is exposed to
fall hazards.
See, e.g., 29 C.F.R. § 1926.503(a)(1).
In any case, Mr. Rodriguez testified
he did not recall having any training on August 21, 2010, although he agreed his
signature was on the training record for that date.
(Tr. 235-36). Mr. George admitted he
did not attend the training; he also did not know how long it lasted or what was covered.
(Tr. 328).
The Court has already indicated that the fall protection training Mr. Rodriguez received before going up on the roof on his first or second day at the site was inadequate, especially in view of his inexperience. The training was 15 to 20 minutes of instruction by Mr. Gonzalez, who described it as showing Mr. Rodriguez “how to use the harness, how to put it on, be tied off.” (Tr. 245, 356). Mr. Rodriguez’s description of the training was that “they showed me how to put the harness on and how to cinch it up or tighten it.” (Tr. 241). Mr. Rodriguez also testified that Messrs. Gonzalez and Ramanand told him not to go up on the roof without them and without being correctly tied off. (Tr. 220 ). Despite these instructions, the CO saw Mr. Rodriguez working on the roof on August 12, 2010, without being tied off. In fact, the video shows Mr. Rodriguez freely sauntering about the roof without any fall protection, seemingly oblivious to the risks that he was exposed to. Mr. Rodriguez recalled that later on that day, there was a discussion about the need to always be “hooked up” when on the roof. (Tr. 218). He also testified he later got a “paper” from Mr. George. He agreed the “paper” he got was CX-18. He thought it addressed safety, but it was also a disciplinary action. He understood that he could be fired for not tying off again. (Tr. 123-25, 219-20, 226-30; CX-9).
Based on the foregoing, the Court finds that All Steel did not adequately train Mr.
Rodriguez in fall protection before he went up on the roof and that the safety talk record
set out in RX-J does not meet the requirements of the cited standard.
The Court further
finds that All Steel knew or should have known that it was not in compliance with the
standard. The Secretary has met all of the elements of her burden of proof with respect to
the alleged violation. Item 4 of Citation 1 is accordingly affirmed as an “other” violation.
No penalty has been proposed for this item, and none is assessed.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based on the above Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.20(b)(2), is VACATED.
2. Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.501(b)(10), is AFFIRMED, and a penalty of $1,500.00 is assessed.
3. Item 3 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.502(d)(16)(iii), is AFFIRMED, and a penalty of $1,500.00 is assessed.
4. Item 4 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.503(b)(1), is AFFIRMED as an “other” violation, and no penalty is assessed.
__/s/________________________
The Honorable Dennis L. Phillips
U.S. OSHRC JUDGE
Date: December 15, 2011
Washington, D.C.