OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
100 Alabama St. S.W
Building 1924 Room 2R90
Atlanta, GA 30303-314
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SECRETARY OF LABOR, Complainant, |
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v. |
OSHRC Docket
No. 16-0817 |
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ELMER
COOK CONSTRUCTION, INC., Respondent. |
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CORRECTED DECISION AND ORDER[1]
COUNSEL: Jonathan Hoffmeister, Trial
Attorney, U.S. Department of Labor, Office of the Solicitor, Dallas, Atlanta,
GA, for Complainant.
Elmer
Cook, pro se, Fort Walton Beach, FL, for Respondent.[2]
JUDGE:
John B. Gatto, United States Administrative Law
Judge.
I. INTRODUCTION
Elmer
Cook Construction, Inc. (Elmer) was cited by the United States Department of Labor’s
Occupational Safety and Health Administration (OSHA)[3] on
April 22, 2016, for two alleged serious[4] violations of the
Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 651–678 with $9,100 in proposed
penalties. Specifically, OSHA asserts two
of Elmer’s employees installing waterproofing material to the roof were wearing
personal fall protection systems incorrectly and were not protected from a 30
feet fall hazard by the use of a personal fall protection system in violation
of 29 C.F.R. § 1926.502(d)(17), OSHA’s fall protection
standard applicable to personal arrest systems. OSHA also asserts the ladder used to access
the top of the structure did not extend 3 feet above the upper landing surface,
exposing employees to a 12 foot fall hazard in
violation of 29 C.F.R. § 1926.1053(b)(1), OSHA’s ladders standard. The
citation proposed a total penalty of $9,100.00. After
Elmer
timely contested the citation, the Secretary filed a formal complaint with the
Commission charging Elmer with violating the Act and seeking an order affirming
the citation and the $9,100 proposed penalties. Since this case was assigned to simplified proceedings,
Elmer was not required to file an answer. See
29 C.F.R. § 2200.205(a).
The
Commission has jurisdiction of this action
under section 10(c) of the Act, 29 U.S.C. § 659(c). Elmer
is an employer engaged in a business affecting commerce within the meaning of
section (5) of the Act, 29 U.S.C. § 652(5). See also, Clarence M. Jones d/b/a
Jones Co., 11 BNA OSHC 1529, 1530 (No. 77-3676, 1983) (holding there is an interstate market in construction materials and
services and therefore construction work affects interstate commerce). A one day bench
trial was held in Panama City, Florida. Pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure, after hearing and carefully considering all
the evidence and
the arguments of counsel, the Court issues this Decision and Order as
its findings of fact and conclusions of law.
If any finding is in truth a conclusion of law, or if any stated
conclusion is in truth a finding of fact, it shall be deemed so. For
the reasons indicated infra, the Court concludes all the elements
necessary to prove the violations have been satisfactorily established by the
Secretary. Accordingly, the citation
is AFFIRMED
and Elmer is ASSESSED a total civil
penalty of $4,200.00.
II. BACKGROUND
Elmer is a contractor for roofing, home
construction, and remodeling, and on March 15, 2016, was a sub-contractor
providing roofing work at a commercial construction project off Front Beach
Road in Panama City, Florida (“the worksite”).
Precision Construction and Concrete, LLC (Precision) was also a
subcontractor, and Optimum Contractors, Inc. was the general contractor of the
worksite. This matter arose when Esley Chester Jr.,
an OSHA Compliance Safety and
Health Officer, opened an inspection of the worksite after observing two aerial lifts in use, each with two
workers, working on the aerial lifts.
Although the workers were wearing H harnesses or body harnesses for fall
protection, they did not appear to be tied off.
Chester stopped on the south side of Front Beach Road and monitored the
worksite for about forty minutes to see if he could tell if the workers were
tied off onto the aerial lift. During
this time, Chester drove around the building on different roads for 15-20
minutes to try to get a better positioning for the workers in the aerial
lift.
When
Chester returned to the front of the building, he noticed two other workers on
the west side of the building that had just gone up onto the roof, which was
approximately 12 feet from the ground, without proper fall protection. Chester
monitored the two workers for 15-20 minutes before entering the worksite. (Ex.
C-1 through C-8). Upon
entering the site, Chester spoke with the general contractor and the
superintendent and learned that the two workers he saw going onto the roof were
Elmer’s workers, Rigoberto Padilla and Juan M. Amaya, and that they were
installing waterproofing material to the roof.
The superintendent contacted the owner of Elmer and Elmer Cook
subsequently arrived at the worksite 3-5 minutes later. When Cook arrived he
greeted Chester with hostility. Cook
initially demanded Chester get a warrant, but then continued to engage Chester
as Chester tried to interview other employers at the worksite. Cook admitted to Chester that Amaya and
Padilla were his employees. Cook later
signed a witness statement and allowed Chester to speak with Amaya. Cook admitted to Chester that Amaya served as a foreman and was in
charge when Cook was not on premises.
According
to Cook and the Florida Department of State, Division of Corporations, both of Elmer’s
workers were officers of the company; Amaya was the Vice President and Padilla
was the Secretary. (Ex. C-9.) When asked
why Amaya and Padilla were not tied off, Cook stated,
“they were tied off, they were tied off to the front.” (Tr. 22.) Cook admitted to Chester “that's the way they
do, that's the way they always do it.” (Tr. 64.) Aside from Amaya attaching his lifeline in
the wrong place, the anchor to which Amaya’s lifeline was connected was not
attached to the roof. (Ex. C-2 and
C-6). Chester also concluded Amaya’s
lifeline was too long to protect him from harm, even had it been properly
anchored. Although wearing a harness,
Padilla was not attached to a lifeline at all.
Neither employees was utilizing a warning line
system, a safety net system, or a safety monitor. According to Chester, if either employee had
fallen from the roof, they would certainly have hit the ground.
Chester
determined that Amaya and Padilla’s failure to properly wear fall protection
posed a serious hazard to their safety.
Although on a low slope roof, the employees were working approximately
30 feet above the ground. According to
Chester, the relatively small area of the roof, along with the rope,
waterproofing materials, and tools in the employees’ workspace, increased the
risk of an employee tripping. Based on
these conditions, Chester determined that the probability of an accident was
greater and the severity of a resultant injury—potentially death or broken
bones—was high.
To access the roof and bring up the waterproofing materials, Amaya
and Padilla utilized a portable aluminum ladder which they had placed on a
lower platform. Chester estimated the
ladder’s length to be 12 feet by counting 12 rungs on the ladder, which are a
standard 12 inches apart. Through visual
observation, Chester determined that the ladder’s side rails did not extend 3
feet beyond the roof’s edge as the standard requires. (Ex. C-2 through C-7). The ladder was not attached at the top to any
support and no grab rail was available for employee use. (Id.)
Elmer admitted to Chester
that he knew the ladder was required to be longer but decided that since his
employees were short, it was more dangerous and harder for the workers to use a
longer one. Cook admitted to Chester
that “when they work on residential houses with a 6 on 12 pitch, that's when
they will use a ladder at three feet above.
So he had knowledge that you're supposed to use
a ladder at three feet or above.” (Tr. 64-65.)
Chester determined that the circumstances of the ladder’s use
posed a serious hazard. According to
Chester, the insufficient extension of the ladder rails beyond the roof’s edge
limited employees’ ability to steady themselves as they moved between the roof
and the ladder. Cook told the compliance
officer that the waterproof materials that employees carried up the ladder
weighed approximately 80 pounds, which Chester concluded would limit a person’s
ability to maintain three-points of contact and could cause the ladder to
deflect. Based on the ladder’s set up
and the risk of a 12 foot fall, Chester testified that
there was a greater probability of an accident and the potential for a highly
severe resultant injury.
III. ANALYSIS
The fundamental objective of the Act is to prevent occupational
deaths and serious injuries. Whirlpool
Corp. v. Marshall, 445 U.S. 1, 11 (1980).
As the Eleventh Circuit has noted, the jurisdiction in which this case arose,[5] the Act “sought to assure that ‘every
working man and woman in the Nation [had] safe and healthful working
conditions.’” ComTran Grp., Inc. v. U.S.
Dep't of Labor, 722 F.3d 1304, 1306 (11th Cir. 2013) (citations omitted). “To implement its statutory purpose, Congress
imposed dual obligations on employers. They
must first comply with the ‘general duty’ to free the workplace of all
recognized hazards. 29 U.S.C. § 654(a)(1). They also have a ‘special duty’ to
comply with all mandatory health and safety standards.” ComTran,
722 F.3d at 1307.
“With respect to the latter,
Congress provided for the promulgation and enforcement of the mandatory
standards through a regulatory scheme” where the “Secretary has rulemaking
power and establishes the safety standards; investigates the employers to
ensure compliance; and issues citations and assesses monetary penalties for
violations.” ComTran, 722 F.3d at 1307. “The language of section 654 is mandatory. . . . The Act ‘unambiguously forecloses such discretion’
on the part of employers to decline compliance and proceed with an alternative
program without justification or approval.” Reich
v. Trinity Indus., Inc., 16 F.3d 1149, 1154 (11th Cir. 1994) (citations
omitted).
Thus, under the law of the Eleventh
Circuit, “the Secretary will make out a prima facie for the violation of an OSHA standard by
showing (1) that the regulation applied; (2) that it was violated; (3) that an
employee was exposed to the hazard that was created; and importantly, (4) that
the employer ‘knowingly disregarded’ the Act’s requirements.” ComTran, 722 F.3d at 1307 (citation omitted).
A. Citation 1, Item 1
Alleged
Violation
Under OSHA’s fall protection standard, a
“personal fall arrest system” is “a system used to arrest an employee in a fall
from a working level. It consists of an
anchorage, connectors, a body belt or body harness and may include a lanyard,
deceleration device, lifeline, or suitable combinations of these.” 29 C.F.R. §
1926.500(b). When a body harness is
used, the standard further mandates that the attachment point of the body
harness “shall be located in the center of the wearer's back near shoulder
level, or above the wearer's head.” 29 C.F.R. § 1926.502(d)(17). Item
1 as amended asserts two of
Elmer’s employees installing waterproofing material to the roof were not
protected from a fall hazard by the use of a personal
fall protection system since “[t]he
attachment point of the body harness was not located in the
center of the wearer's back near shoulder level, or above the wearer's head[.]”
Application
of Fall Protection Standard
Under the fall protection standard, “each employee engaged in roofing work on low-slope roofs, with
unprotected sides and edges 6 feet (1.8 m) or more above a lower level” shall
be protected from falling by guardrail systems, safety net systems, personal
fall arrest systems,” or a combination of one of those systems and a warning
line system, “or a warning line system and safety monitoring system.” 29 C.F.R.
§ 1926.501(b)(10). “Roofing work” is defined as “the hoisting,
storage, application, and removal of roofing materials and equipment, including
related insulation, sheet metal, and vapor barrier work, but not including the
construction of the roof deck.” 29 C.F.R. § 1926.500(b). A low-slope roof “means a
roof having a slope less than or equal to 4 in 12 (vertical to horizontal).” 29 C.F.R. § 1926.500(b).
Here, two of Elmer’s employees were applying waterproofing
material to the roof. Therefore, Elmer
was engaged in roofing work. Further,
since the roof had a 2 in 12 pitch slope, it was a
low-slope roof. Thus, the fall protection standard applied. Further, since Elmer was using a personal
arrest system to protect its employees from falling, it was required to comply
with the provisions of OSHA”s personal fall arrest
systems standard, including the cited portion of the standard related to the attachment
point of the body harness. Therefore,
the cited standard applied to the cited condition.
Violation
of Cited Standard
Cook
admitted his workers “were tied off to the front.” Therefore, the record establishes Elmer
violated the cited standard, since the attachment point of the body harness worn
by its two employees was not “located
in the center of the wearer's back near shoulder level, or above the wearer's
head.” 29 C.F.R. § 1926.502(d)(17).
Exposure
to Hazard
“The Secretary always bears the burden of
proving employee exposure to the violative conditions.” Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No.
93-1853, 1997) (citations and footnotes omitted). To establish exposure, “the Secretary ...
must show that it is reasonably predictable either by operational necessity or
otherwise (including inadvertence), that employees have been, are, or will be
in the zone of danger.” Delek Ref., Ltd., 25 BNA OSHC 1365, 1376 (No.
08-1386, 2015) (citing Fabricated Metal
Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997)). The zone of danger is the “area surrounding
the violative condition that presents the danger to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC
1067, 1085 (No. 09-1072, 2013) (citing RGM
Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)).
As the Commission noted in Gilles & Cotting,
3 BNA OSHC 2002, 2003 (No. 504, 1976), the scope of the zone of danger is
relative to the wording of the standard and the nature of the hazard at
issue. Here, the zone of danger
presented was the unprotected sides and edges of the roof. “Our inquiry then is whether the employees'
proximity” to the unprotected sides and edges of the roof “makes it reasonably
predictable that they will enter these zones of danger by slipping or falling.”
Fabricated Metal, 18 BNA OSHC at
1076. The photographs taken by the
compliance officer, and corroborated by his testimony, clearly
establish the proximity of some of Elmer’s employees to the unprotected sides and edges of the roof, which “makes it
reasonably predictable that they will enter these zones of danger by slipping
or falling.” Further, since the workers
were installing a sealant on the entire surface of the canopy roof, the
employees were required to work on all parts of the roof, including near its
edges. Thus, the Court concludes the
Secretary has shown “that it is reasonably predictable either by operational
necessity or otherwise (including inadvertence), that Elmer’s employees have
been, are, or will be in the zone of danger” without proper fall protection. Delek Ref., Ltd., 25 BNA OSHC at 1376. Therefore, the Secretary has established
employee exposure to the cited condition.
Knowledge
of Violation
“[W]here the Secretary shows that a
supervisor had either actual or constructive knowledge of the violation, such
knowledge is generally imputed to the employer.” ComTran,
722 F.3d at 1307-08 (citing Georgia
Elec. Co. v. Marshall, 595 F.2d 309, 321 (5th Cir. 1979); New York State Elec. & Gas Corp. v.
Secretary of Labor, 88 F.3d 98, 105 (2d Cir.1996); Secretary of Labor v.
Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1727 (No. 95-1449, 1999)).2
Here, Cook admitted to Chester that Amaya and Padilla were tied
off to the front and “that's the way they do, that's the way they always do
it.” Further, since Amaya served as a
foreman and was in charge when Cook was not on premises, and was supervising Padilla,
Amaya knew or should have known Padilla was was not
tied off correctly since they were working in close proximity
to each other. Amaya’s knowledge
of the violative condition is imputed to the company.
B. Citation 1, Item 2
Alleged
Violation
Item 2 of the citation asserts the ladder used to access the top of the structure did not extend 3 feet above the upper landing surface, exposing employees to a 12 foot fall hazard. Under OSHA’s stairways and ladders standard, “[w]hen portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which the ladder is used to gain access; or, when such an extension is not possible because of the ladder's length, then the ladder shall be secured at its top to a rigid support that will not deflect, and a grasping device, such as a grabrail, shall be provided to assist employees in mounting and dismounting the ladder. In no case shall the extension be such that ladder deflection under a load would, by itself, cause the ladder to slip off its support.” 29 C.F.R. § 1926.1053(b)(1).
Application
of Fall Protection Standard
OSHA’s stairways and Ladders standards apply
“to all stairways and ladders used in construction, alteration, repair
(including painting and decorating), and demolition workplaces” covered under
the safety and health regulations for construction.” 29 C.F.R. § 1926.1050(a). Therefore, the cited standard applies to the
cited condition.
Violation
of Cited Standard
The record shows Elmer violated the cited
standard, since the ladder used to access the top of the structure did not
extend 3 feet above the upper landing surface, exposing employees to a 12 foot fall hazard. There
is no evidence in the record such an extension was not possible because of the
ladder's length, and even if that were so, there is no evidence the ladder was secured
at its top to a rigid support that will not deflect, or that a grasping device,
such as a grabrail, was provided to assist employees in mounting and
dismounting the ladder.
Exposure
to Hazard
The Court concludes the Secretary has shown
“that it is reasonably predictable either by operational necessity or otherwise
(including inadvertence), that Elmer’s employees have been, are, or will be in
the zone of danger” since they were exposes to a 12 foot
fall hazard. Therefore, the Secretary
has established employee exposure to the cited condition.
Knowledge
of Violation
As for the knowledge element, Elmer admitted to Chester that he knew
the ladder was required to be longer but decided that since his employees were
short, it was more dangerous and harder for the workers to use a longer
one. Therefore, the Secretary has established knowledge
on the part of Elmer.
C. Classification
Finally, the Secretary classified the violations as
serious. As indicated supra, a serious violation is one that
carries a substantial probability that death or serious physical harm could
result. Here, employees were exposed to a
fall hazard due to Elmer’s failure to properly implement a personal fall arrest system and its failure to
use a ladder that extended 3 feet above the upper landing surface. Clearly, there was a substantial probability
that death or serious physical harm could result from both violations. Therefore, the violations were properly
classified as serious.
IV. PENALTY DETERMINATION
Under the law in effect
at the time of the citation, Elmer was subject to a civil penalty of up to
$7,000.00 for each serious violation. 29 U.S.C. §666(b).[6] The Secretary proposed
a $2,800.00 penalty for item 1 of
the citation and $6,300.00 for item 2 of the
citation. However, the Commission “consider[s]
the amount of the Secretary's penalty de novo,” ComTran Grp., 722 F.3d at 1307, and “the appropriate amount is for the
Commission to set.” Reich v. Occupational
Safety & Health Review Comm'n, 102 F.3d 1200, 1203 n. 4 (11th Cir.
1997). Thus, the “Commission has the
exclusive authority to assess penalties once a proposed penalty is contested.” Chao
v. OSHRC, 401 F.3d 355, 376 (5th Cir. 2005) (citation omitted).
The Commission is to “giv[e] due consideration to the appropriateness of the
penalty with respect to [1] the size of the business of the employer being
charged, [2] the gravity of the violation, [3] the good faith of the employer,
and [4] the history of previous violations.” 29 U.S.C. § 666(j). “These factors
are not necessarily accorded equal weight....” Chao v. OSHRC, 401 F.3d
at 376 (citing J.A. Jones Constr., 15
BNA OSHC at 22016). “Gravity of
violation is the key factor.” See id.
Given the high probable extent of physical injuries should future
accidents occur, the Court finds the gravity of the fall hazard high.
As for the size of the business, Chester determined that the
company had only four employees. The
Court concludes a reduction in the penalty amount is warranted based upon the
size. Further, since there is no evidence in
the record of a history of violations, the Court
concludes an additional reduction in the penalty amount is warranted based upon
a lack of history of violations. However, since Elmer did not present any evidence of a fall protection program or
plan or an enforcement program, it is not entitled to a good faith reduction. Therefore, giving due
consideration to the required statutory factors, the Court finds a civil
penalty of $2,100 for each violation is appropriate. Accordingly,
V. ORDER
IT IS HEREBY ORDERED THAT Citation 1, Items 1 and 2 are AFFIRMED and a civil penalty of $2,100
for each violation is ASSESSED.
SO ORDERED.
/s/ John B. Gatto
John B. Gatto
Administrative Law Judge
Dated: December 29, 2017
Atlanta, GA
[1] The original Decision and Order
indicated it was entered on September 6, 2017.
It was not.
[2] At a pretrial conference, Elmer
requested a postponement until after the presidential elections are held, which
was denied. Elmer subsequently elected
not to appear at trial, and therefore waived its right to present any evidence.
[3] The Secretary of Labor (the Secretary)
delegated his authority under the Act to the Assistant Secretary of Labor for
Occupational Safety and Health, who heads OSHA, and assigned responsibility for
enforcement of the Act to OSHA. See 65
Fed.Reg. 50017 (2000). The Assistant Secretary has promulgated
occupational safety and health standards, see
e.g., 29 C.F.R. Parts 1910 and 1926, and has redelegated his authority to
OSHA’s Area Directors to issue citations and proposed penalties to enforce the
Act. See 29 C.F.R. §§ 1903.14(a) and
1903.15(a).
[4] Under section 17 of the Act,
violations are characterized as “willful,” “repeated,” “serious,” or “not to be
of a serious nature” (referred to by the Commission as “other-than-serious”).
29 U.S.C. §§666(a), (b), (c). A
“serious” violation is defined in the statute as one that carries “a substantial probability that
death or serious physical harm could result.” 29 U.S.C. § 666(k). “The gravamen of a serious violation is the
presence of a ‘substantial probability’ that a particular violation could
result in death or serious physical harm.” Georgia
Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir. 1979).
[5] Under the Act, an employer may seek review
in the court of appeals in the circuit in which the violation occurred, the
circuit in which the employer’s principal office is located, or the District of
Columbia Circuit. 29 U.S.C. § 660(a). The
Secretary may seek review in the circuit in which the violation occurred or in
which the employer has its principal office. 29 U.S.C. § 660(b). This case arose in Florida, which is in the Eleventh
Circuit. In general, where it is highly
probable that a Commission decision would be appealed to a particular
circuit, the Commission has applied the precedent of that circuit in
deciding the case, “even though it may differ from the Commission’s precedent.”
Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).
[6] In November 2015, Congress enacted legislation requiring
federal agencies to adjust their civil penalties to account for inflation. The Department
of Labor has adjusted penalties for its agencies, including the Occupational
Safety and Health Administration (OSHA).
The new penalties took effect August 2, 2016. Any citations issued by
OSHA on or after this date is subject to the new penalties if the related
violations occurred after November 2, 2015.
Under the new penalty structure, the maximum penalty for a serious
violation is $12,471 per violation.