United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
100 Alabama St. S.W
Building 1924 Room 2R90
Atlanta, GA 30303
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SECRETARY OF LABOR, Complainant, |
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v. |
OSHRC Docket No. |
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Respondent. |
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DECISION AND ORDER
Attorneys and Law firms
Anthony David Tilton, Trenton H. Cotney,
Virgil Tray Batcher, Jamie Combee,
Attorneys, Trent Cotney, P.A., Tampa, FL, for
Respondent.
JUDGE: John B. Gatto, United States Administrative Law
Judge.
I.
INTRODUCTION
The United
States Department of Labor, through its Occupational Safety and Health
Administration (“OSHA”), investigated an accident involving a foreman of Jody
Wilson Construction, Inc. (“Respondent”) who fell off the roof
of a home. OSHA subsequently issued
two citations to Respondent under the Occupational Safety and Health Act of
1970 (the “Act”), 29 U.S.C. §§ 651-678.[1] Citation 1 alleged a “willful” violation of
29 C.F.R. § 1926.501(b)(13),
OSHA’s fall protection standard related to residential
construction activities, with a proposed penalty of $49,000. Citation 2 alleged an “other-than-serious” violation
of 29 C.F.R. § 1926.503(a)(1), OSHA’s
fall protection training standard, with no proposed penalty.[2] After Respondent contested the citations, the
Complainant, Secretary of Labor (the “Secretary”), filed a formal complaint
with the Commission seeking an order affirming the citations and proposed
penalty.[3] A
bench
trial was held in Tampa, Florida.
Based upon the record, the Court finds that at all relevant times Respondent was engaged in a business affecting commerce
and was an employer within the meaning of sections 3(3) and 3(5) of the OSH
Act. (Am. Pretrial Order, Ex. C, p. 13.)
Further, the Court concludes the Commission has jurisdiction over the
parties and subject matter in this case. (Id.)
Pursuant to Commission Rule 90, 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.[4] 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 alleged violations have been established by the
Secretary but the proper characterization of Citation 1 is a “serious”
violation and the appropriate penalty assessment is $2,800.
II.
BACKGROUND
Respondent is an employer engaged in the installation
of vinyl siding and screen enclosures. (Am. Pretrial Order, Ex. C; Tr. 135.) Jody Wilson (“Wilson”) is the sole owner and
Director of Respondent, which employs approximately 20 employees. (Tr. 79, 134-135.)
Wilson is a licensed Certified
Residential Contractor in Florida. (Tr. 134.) Wilson and his company are not licensed roofers
and the company has never performed any roofing installations or roofing
construction activities. (Tr. 163.)
Respondent was hired by Fabian Construction, LLC (“Fabian Construction”)
to install siding and a screen enclosure on a residence in Ocklawaha, Florida
(the “Worksite”). This work included the installation of screen lanai walls at
the back of the Worksite, the construction of a sliding screen door, vinyl
siding installation to the new addition, and a vinyl ceiling. (Tr. 141.)
On March 23, 2016,
Wilson and his employees, [redacted], the foreman on the Worksite, and crew workers John Alderman and
Wayne West, arrived at the worksite to install the vinyl siding on the screen
addition. (Tr. 142.) At or around the
same time, a roofing company installed a metal roof and damaged some of the
vinyl siding near the chimney. (Tr. 142; Ex. C-4; Ex. C-5.) The metal roof, which was approximately 8
feet, 4 inches from the ground, had a slope of 4 feet to 12 feet (vertical to horizontal), and
a width of less than 50 feet.[5] (Tr. 21, 182, 183,
184; see also Ex. C-7; Ex. C-8.) After the roofing crew left with all of their
equipment, John Eric Fabian, the owner of Fabian Construction, asked Wilson to have his crew repair
the siding on the roof in lieu of having the roofing crew return. (Tr. 143,
145.) This work was not within
Respondent’s original scope of work and represented an addition to the original
contract between Respondent and Fabian Construction (Tr. 174.)
Wilson initially told
Fabian that his crew would not make the repair because it was dangerous and was
basically “a slide” and that the roofing company should return and make the
repair. (Tr. 145, 46.) [redacted] also
expressed his concern, to both Fabian and Wilson, because there was pollen on
the roof that made it slick. (Tr. 208.) To
convince [redacted] and Wilson that the work was safe, Fabian, who was in his
sixties, got on the roof and walked around. (Tr. 146, 208.) Wilson told [redacted] to “do what you can.”
(Tr. 209.) After Wilson left the job
site, he spoke with [redacted] on the phone three times, and during the first
phone call, [redacted] asked Wilson, “What, are you trying to kill me?” (Tr.
155.) During the second and third calls
Wilson discussed the repair again with [redacted]. (Tr. 156.) However, during either the second or third
call, Wilson told [redacted] “don't do it if you think you can't stick.” (Id.)
Nonetheless, [redacted]
and Alderman accessed the roof via a ladder.[6]
(Tr. 21.) West was assigned to act as
a “safety monitor” on the ground for [redacted] as he replaced the damaged
siding. It was Wilson’s belief that a “safety monitor,” operating from the
ground, would allow [redacted] to perform the repair safely and the monitor
would serve to notify [redacted] if he got too close to the edge.[7] (Tr. 167.) [redacted] slipped and fell feet first from
the top of the roof to the ground resulting in a compound fracture to his right
leg and was airlifted to the Ocala Medical Center where he received treatment.
(Tr. 43, 211.)
Neither [redacted]
nor Alderman wore personal fall arrest systems. There was no safety monitor on
the roof at the same level as [redacted].
West was standing on the ground acting as a safety monitor while handing
pieces of siding to Alderman, who was also on the roof.[8]
(Tr. 149.) There were no guardrail systems or safety nets being utilized by Respondent
at the worksite. The width of the roof was less than 50
feet. The slope of the roof at issue is
4 feet to 12 feet (vertical to horizontal).
The eave to ground height of the roof at issue is 8 feet 4 inches. (Am. Pretrial Order, Ex. C.)
The Secretary admits Respondent does not, and never
has, performed roofing work or specialized or engaged in the installation of
vinyl siding from walking surfaces above six (6) feet. (Tr. 87-88.) Respondent’s construction work requires
employees to work on ceilings, fascia, and/or screen enclosures which reach
only eight (8) to nine (9) feet in height. (Tr. 164.) As such, the walk-boards, scaffolds, and
A-Frame ladders used by Respondent do not require employees to work from
elevated surfaces at a level of six (6) feet or more above a lower level. (Tr.
164.) Respondent’s employees had not entered the roof at any time prior to the
day of the accident and the roofing work was completed by another subcontractor
of Fabian Construction. (Tr. 142.)
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). To achieve this purpose, the Act imposes
two duties on an employer: a “general duty” to provide to “each of his
employees employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious physical harm
to his employees,” 29 U.S.C. § 654(a)(1); and a specific duty to comply with
all applicable occupational safety and health standards promulgated under the
Act. Id. § 654(a)(2). Pursuant to
that authority, the standard at issue in this case was promulgated.[9]
Under the law of the Eleventh Circuit, the jurisdiction in which this
case arose,[10] “[t]o
make a prima facie showing that an employer violated an OSHA standard, the
Secretary must show the following four elements: ‘(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 [Occupational Safety and Health] Act's requirements.’” Eller-Ito Stevedoring Co., LLC v. Sec'y of
Labor, 567 F. App'x 801, 803 (11th Cir. 2014) (quoting ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1307
(11th Cir. 2013)). “If the Secretary establishes a prima facie case with
respect to all four elements, the employer may then come forward and assert the
affirmative defense of unpreventable or unforeseeable employee misconduct.” Id. (citing id. at 1308). However, “[a]s
has often been said, OSHA does not impose strict liability on an employer but
rather focuses liability where the harm can in fact be prevented.” Central of Ga. R.R. Co. v. Occupational
Safety & Health Review Comm'n, 576 F.2d 620, 623 (5th Cir.1978).[11]
A.
Citation 1
Citation 1 charges a
willful violation of section 1926.501(b)(13), OSHA’s fall protection standard
applicable to residential construction activities, alleging “[e]ach employee(s)
engaged in residential construction activities 6 feet (1.8 m) or more above
lower levels were not protected by guardrail systems, safety net system, or
personal fall arrest system, nor were employee(s) provided with an alternative
fall protection measure under another provision of paragraph 1926.501(b)[.]”
(Compl., Ex. A.) More specifically, the
citation asserts “[o]n or about March 29, 2016, on a 4:12 pitch roof, two
employees performing siding repairs were not protected from an 8-foot 4-inch
fall hazard by use of a guardrail system, safety net system, personal fall
arrest system or any alternative fall protection, resulting in an employee
falling to the surface sustaining severe leg injuries.” (Id.)
1.
Cited Standard Applied
Paragraph (b)(13) mandates
in relevant part that “[e]ach employee engaged in residential construction
activities 6 feet (1.8 m) or more above lower levels shall be protected by
guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of
this section provides for an alternative fall protection measure.” 29
C.F.R. § 1926.501(b)(13) (emphasis added).
The record establishes that Respondent’s employees were working engaged
in residential construction on a roof approximately 8 feet, 4 inches from the
ground. (Ex. C-7; Ex. C-8.) However, Respondent
argues paragraph 1926.501(b)(13) did not apply because “[a]nother provision in
paragraph (b) of the cited standard did provide for an alternative fall
protection measure.” (Resp’t’s Br. 7.)
The Secretary
interprets paragraph (b)(13) to mean “workers engaged in residential
construction six (6) feet or more above lower levels must be protected by
conventional fall protection … or other
fall protection measures allowed elsewhere in 1926.501(b).” OSHA Instruction STD 03-11-002, Compliance Guidance
for Residential Construction (June 16, 2011) (emphasis added). Therefore, the Secretary argues
paragraph “(b)(13) does not mandate the exclusive use of a personal fall arrest
system – it also provides for ‘alternative fall protection measures.’” (Sec’y’s
Br. 23) (citation omitted).
The
Secretary's reasonable interpretations of his own regulations are entitled to
deference in enforcement proceedings. Martin
v. Occupational Safety & Health Review Comm'n (“C.F. & I. Steel Corp.”), 111 S.Ct. 1171, 1179 (1991). The
Secretary's interpretation of section 1926.501(b)(13) is reasonable and is not
inconsistent with either the terms or the purpose of the regulation. Moreover, the interpretation of a standard by
the promulgating agency is controlling unless “clearly erroneous or
inconsistent with the regulation itself.” Udall
v. Tallman, 87 S.Ct. 792, 801 (1965).
The Secretary’s interpretation is not clearly erroneous or inconsistent
with the regulation itself and is therefore controlling. Thus, the Court concludes paragraph (b)(13)
applied to the cited condition.
2.
Cited Standard Was Violated
Paragraph (b)(10)
provides that with low-slope roofs that are 50-feet or less in width, “the use
of a safety monitoring system alone [i.e. without the warning line system] is
permitted.” 29 C.F.R. § 1926.501(b)(10).
A low-slope roof is “a roof having a slope less than or equal to 4 in 12
(vertical to horizontal).” 29 C.F.R. § 1926.500(b). Lightner admitted the roof was a 4 in 12
pitch. (Tr. 21.) Lightner
also admitted and the Secretary
stipulated the roof at issue was less than 50 feet wide. (Tr. 182-184.) Therefore, Respondent was permitted to comply
with paragraph (b)(13) by providing “other fall protection” under paragraph (b)(10)
using a safety monitoring system alone.
A “safety-monitoring
system” is “a safety system in which a competent person is responsible for
recognizing and warning employees of fall hazards.”[12]
29 C.F.R. § 1926.500(b). Respondent
argues it “attempted to utilize this [alternative] protective measure in the
form of a safety monitor,” by designating West to be the safety monitor for [redacted]
and Alderman. (Resp’t’s Br. 4, 8; Tr. 56.)
However, a safety monitor is required to “be on the same walking/working
surface and within visual sighting distance of the employee being monitored[.]”
29 C.F.R. § 1926.502(h)(1)(iii). Here, West was on the ground and was not “on
the same walking/working surface and within visual sighting distance of the
employee being monitored.” Therefore, Respondent
did not properly provide an alternative fall protection measure.
As
the Secretary notes in his Compliance Guidance, “[i]f an employer is engaged in
residential construction, but does not provide guardrail systems, safety net
systems, personal fall arrest systems, or other fall protection allowed under
1926.501(b), a citation for violating 1926.501(b)(13) should be issued[.]”[13] OSHA Instruction STD
03-11-002, Compliance Guidance for Residential Construction (June 16, 2011)
(emphasis added). (emphasis added). The fact that an employer has taken a
required step to reduce injury in the event of an accident does not mean that
there has been no violation of a mandatory safety standard. Mineral Indus. & Heavy Constr. Grp. v. Occupational
Safety & Health Review Comm'n, 639 F.2d 1289, 1294 (5th Cir. 1981). The Secretary has established a violation of paragraph
(b)(13).
3. Employee
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). The Commission’s longstanding “reasonably predictable”
test for hazard exposure requires the Secretary to “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
id.). See also Rockwell Intl. Corp.,
9 BNA OSHC 1092 (No. 12470, 1980); Gilles
& Cotting, 3 BNA OSHC 2002 (No. 504, 1976).
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)). 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. Here, both [redacted]’s and Alderman’s proximity
to the unprotected sides and edges of the roof made it reasonably predictable
that they would enter these zones of danger by slipping or falling. The Secretary has established exposure to the
hazardous condition.
4.
Employer Knowledge
“The knowledge element of the prima facie case can be shown in one of
two ways.” Eller-Ito Stevedoring, 567
F. App'x at 803 (citing ComTran at
1307). “First, where the Secretary shows that a supervisor had either actual or
constructive knowledge of the violation, such knowledge is generally imputed to
the employer.” Id. (citing ComTran at 1307–08). “In the
alternative, the Secretary can show knowledge based upon the employer's failure
to implement an adequate safety program, with the rationale being that—in the
absence of such a program—the misconduct was reasonably foreseeable.” Id. at 803-04 (citing ComTran at 1308).
However, in the Eleventh Circuit, a “supervisor's ‘rogue conduct’ generally
cannot be imputed to the employer in that situation. Rather, ‘employer knowledge must be
established, not vicariously through the violator's knowledge, but by either
the employer's actual knowledge, or by its constructive knowledge based on the
fact that the employer could, under the circumstances of the case, foresee the
unsafe conduct of the supervisor [that is, with evidence of lax safety
standards].’” ComTran at 1316 (citation
omitted).
Here, although [redacted] was Respondent’s supervisory foreman at the worksite,
and his conduct cannot generally be imputed to the company, Wilson was aware of
and affirmed [redacted]’s rogue conduct.
Therefore, Respondent had actual knowledge of the violative conduct. Further, [redacted] had either actual or
constructive knowledge that a subordinate employee was on the roof with him and
was aware that neither of them were using any personal
fall arrest systems. Under these
circumstances, the employer also had constructive knowledge since the employer
could, under the circumstances of the case, foresee the unsafe employee conduct. Therefore, the Secretary has established the
knowledge element.
Characterization
In the Eleventh Circuit, a willful violation is, “in its simplest form,
‘an intentional disregard of, or plain indifference to, OSHA requirements.’” S. Pan Servs. v. U.S. Dep't of Labor, 685
F. App'x 692, 696 (11th Cir. 2017) (quoting
Fluor Daniel v. Occupational Safety & Health Review Comm'n, 295 F.3d
1232, 1239 (11th Cir. 2002)). “This generally requires that a party possessed a
‘heightened awareness’ of the applicable OSHA regulation,” which has been found
when a company has been previously cited for the same violation. Lanzo Const. Co. v. Occupational Safety
& Health Review Comm'n., 150 F. App'x 983, 986 (11th Cir. 2005) (citing
Revoli Constr. Co., 19 BNA OSHC 1682, 1685-86
(No. 00-0315, 2001)).
“[A]n employer may defend against a showing of willfulness by producing
evidence tending to show that it acted in good faith with respect to the requirements of the standard at issue.” K.M. Davis Contracting, Inc., 26 BNA
OSHC 1633 (No. 12-0643, 2017) (quoting Lanzo Constr. Co., 20
BNA OSHC 1641, 1648 (No. 97-1821, 2004), aff'd, 150 F. App'x 983 (11th Cir. 2005) (unpublished) (emphasis in original)). “‘The [employer's] good faith effort’ must
... have been made in an ‘effort to comply with the cited provision.” Id. (quoting Jim
Boyd Constr., Inc., 26 BNA OSHC 1109, 1112 (No. 11-2559,
2016)).
Here, although there is evidence Respondent knew of an applicable
standard or provision prohibiting the conduct or condition, there is no
evidence it consciously disregarded the standard or had a “heightened awareness”
of that standard. Rather, Respondent
attempted to comply with the standard, albeit
incorrectly, by providing a safety monitor. Therefore, Respondent made a good faith effort
to comply with the cited provision.
Thus, the Court concludes the violation was not a willful one.
While
not willful, the violation was certainly serious within the meaning of section
17(k) of the Act. Under the Act, “a
serious violation shall be deemed to exist in a place of employment if there is
a substantial probability that death or serious physical harm could result from
a condition which exists … unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.” 29
U.S.C. § 666(k). If the
possible injury addressed by a regulation is death or serious physical harm, a
violation of the regulation is serious. Mosser Construction, 23 BNA
1044, 1047 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA 2072, 2077 (No.
88-523, 1993).
The
Secretary need not show that there was a substantial probability that an
accident would occur; he need only show that if an accident occurred,
serious physical harm could result. See Sec’y of Labor v. Phelps
Dodge Corp. v. Occupational Safety & Health
Review Comm'n, 725 F.2d 1237, 1240 (9th Cir. 1984). However, the Act imposes liability “only if
the employer knew, or ‘with the exercise of reasonable diligence, [should have
known] of the presence of the violation.’” Florida
Lemark Corp. v. Sec'y, U.S. Dep't of Labor, 634 F. App'x 681, 687 (11th
Cir. 2015) (quotation omitted).
Here,
there
was a substantial probability that death or serious physical harm could result
from falling off the roof and [redacted] did suffer such harm. As indicated supra, Respondent also had both actual and constructive knowledge
of the presence of the violation. Therefore,
Citation 1 was a serious violation.
B.
Citation 2
Citation 2 alleged an “other-than-serious” violation
of 29 C.F.R. § 1926.503(a)(1), OSHA’s
standard on fall protection training requirements, with no proposed
penalty. The citation asserts Respondent
“did not provide a training program for each employee potentially exposed to
fall hazards to enable each employee to recognize the hazards of falling and
the procedures to be followed in order to minimize these hazards[.]” (Compl.,
Ex. B.) More specifically, the citation
asserts “[o]n or about March 29, 2016, employees performing roofing operations
were not trained to recognize, control or minimize fall hazards while working
from elevation.” (Id.)
1.
Cited Standard Applies
Section 1926.503(a)(1) mandates that the employer “shall provide a training
program for each employee who might be exposed to fall hazards. The program shall enable each employee to
recognize the hazards of falling and shall train each employee in the
procedures to be followed in order to minimize these hazards.” 29 C.F.R.
§ 1926.503(a)(1). Respondent’s
employees were exposed to a fall hazard when they climbed onto the 8’4”
residential roof and attempted to repair a piece of siding. The cited standard applies.
2.
Cited Standard Was Violated
To prove a violation
of a training standard, the Secretary “must show that the cited employer failed
to provide the instructions that a reasonably prudent employer would have given
in the same circumstances.” N & N
Contractors, Inc., 18 BNA OSHC 2121, 2122 (No. 96-0606, 2000). Respondent can rebut the allegation “by
showing it has provided the type of training at issue ....” Id. at 2126 (quoting AMSCO, 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997) aff'd, 255 F.3d 133 (4th Cir. 2001)). When rebutted, “the burden shifts to the
Secretary to show some deficiency in the training provided.” Id.
[redacted] and
Alderman were engaged in residential construction more than 6 feet above a
lower level. Thus, the cited standard
required those employees be trained to “recognize the hazards of falling” and “the
procedures to be followed to minimize these hazards.” Wilson admitted his
company did not provide training on fall protection to his employees at the
worksite. (Tr. 137-138.) Therefore, Respondent
violated the cited standard.
3. Employee
Exposure to Hazard
The existence of a
hazard is not always an element of the Secretary’s burden of proof for showing
violation of an OSHA standard. Bunge Corp. v. Sec'y of
Labor, 638 F.2d 831, 835 (5th Cir. 1981). It is only “[w]hen the standard incorporates
hazard as an element of the violation [that] the Secretary must show hazard in
addition to condition or practice the standard keys the violation to hazard[.]”
Id.
As to exposure, it is established because Respondent’s employees engaged
in roofing work without first receiving required training. Bardav, Inc., 24 BNA OSHC 2105, 2115 (No. 10-1055, 2014). See
also Compass Envtl., 23 BNA OSHC 1132, 1136 n.5 (No. 06-1036, 2010) (“[The
employer] incorrectly focused on the unforeseeability of the events that
occurred on the day of the accident rather than the ... lack of training about
a known hazard.”); Gen. Motors Corp.,
22 BNA OSHC 1019, 1030 (No. 91-2834E, 2007)(consolidated) (finding it unreasonable
to require that employee be exposed to a hazard before requiring that he be
trained to recognize and avoid that hazard). Accordingly, the Secretary has
established exposure.
4.
Employer Knowledge
Wilson knew that his employees were going to walk onto the roof without
fall protection and without training on the procedures to be followed to
minimize the hazard. (Tr. 150, 137-138.) Therefore, “knowledge is established,
especially as [Respondent] does not dispute that it provided no training to the
exposed employees.” Bardav, 24 BNA at
2115. See generally Pressure Concrete Constr., 15 BNA OSHC 2011, 2018
(No. 90-2668, 1992) (“[t]he fact that [the company] failed to train [employees]
in the recognition and avoidance of dangerous conditions establishes that it
had at least constructive knowledge of the inadequacy of its training
program.”). Knowledge has been
established.
IV. PENALTY DETERMINATION
“Regarding penalty, the Act
requires that “due consideration” be given to the employer's size, the gravity
of the violation, the good faith of the employer, and any prior history of
violations.” Briones Util. Co., 26
BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing
29 U.S.C. § 666(j); Jim Boyd, 26 BNA
OSHC at 1117; Capform, Inc., 19 BNA
OSHC 1374, 1378 (No. 99-0322, 2001), aff'd,
34 F. App'x 152 (5th Cir. 2002) (unpublished)). Under the Act, any employer may be assessed up
to $7,000 per violation for serious and other-than-serious violations. 29
U.S.C. §§ 666(a), (c), (d).[14]
The Commission is empowered to “assess all civil penalties” provided in
this section, “giving due consideration to the appropriateness of the penalty
with respect to the size of the business of the employer being charged, the
gravity of the violation, the good faith of the employer, and the history of
previous violations.” 29 U.S.C. § 666(j).
These factors are not necessarily accorded equal weight[. J.A. Jones Constr., 15 BNA OSHC 2201,
2216 (No. 87-2059, 1993) (citation
omitted). “The gravity of the
violation is the ‘principal factor in a penalty determination and is based on
the number of employees exposed, duration of exposure, likelihood of injury,
and precautions taken against injury.’”
Jim Boyd, 26 BNA OSHC at 1114 (quoting Siemens
Energy & Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005)).
Lightner testified that Citation 1 merited a “high” gravity rating based
on the probability of an injury. (Tr. 77).
The Court agrees with Lightner’s assessment. He also assigned a “greater probability”
rating because of the duration of the exposure. (Tr. 78.) The Court agrees with Lightner’s “greater
probability” assessment. It is true there
were only two employees on the roof exposed to the hazard of falling, and the
duration of the exposure was limited since Respondent was not hired to do
roofing work and engaged in the roofing activity incident to a request from
Fabian Construction at the end of the project.
“However, an employer will not be credited for the fact that only one
employee was exposed to a hazard where only one employee is required to perform
the work and the size of the work area itself limits the opportunity for
employee exposure.” Agra Erectors, Inc.,
19 BNA OSHC 1063, 1066 (No. 98-0866, 2000) (citation omitted). As to the precautions taken against injury, the
only precaution Respondent took was to have a monitor on the ground. As to the likelihood that any injury would
result, it was high based on the probability of an injury. Based upon these factors, the Court finds an
appropriate gravity-based penalty is $7,000.
Given there was no evidence of any previous inspections of Respondent’s
worksites prior to the citations at issue, the Court agrees with the Secretary
that Respondent was not entitled to a reduction based upon history. At trial Respondent appeared to argue it was entitled to a
good faith reduction because according to Respondent, it had repeated
interactions with OSHA at an “On Top of the World Communities” housing development
in Ocala, Florida, and had never received a citation or been the subject of an
investigation there. (Tr. 177.) However, Respondent’s admission it had
not been the subject of an inspection at the On Top of the World development supports
the Court’s conclusion it is not
entitled to a reduction based upon history.[15]
With respect to good faith, Lightner testified he did not recommend any
reduction for good faith since the violation was willful. Even though the Court has concluded the
proper classification is a serious violation, rather than a willful one, the
Court agrees with Lightner that Respondent is not entitled to a good faith
reduction since it did not implement an effective fall protection safety system.[16] See
e.g. Daniel Crowe Roof Repair, 23 BNA OSHC 2001, 2017 (No. 10-2090, 2011) (where
Commission Judge Dennis Phillips held a company's failure to provide its
roofers with any form of fall protection or training demonstrates that it is
not entitled to any credit for good faith in the penalty assessment.). Although not binding precedent,[17] the
Court agrees with Judge Phillips and concludes Respondent’s failure to provide
its roofers with any form of fall protection or training demonstrates that it
is not entitled to any credit for good faith.
With respect to the size of the business, which had approximately 20
employees, Lightner initially[18] recommended
a 60% reduction for size, which was reduced to 30% by the Area Director to
create a “deterrent effect.” (Sec’y’s Br. 30.)
Based upon the evidence, the Court concludes a deterrent effect was
neither proper nor justified and finds a 60% reduction for size is
appropriate.
Giving due consideration to the size of the business, the gravity of the
violation, good faith, and history, the Court finds, based upon the record, the
appropriate civil penalty for Citation 1 is $2,800. The Court agrees with the Secretary’s proposal
not to asses a civil penalty for Citation 2’s “other-than-serious” violation. Accordingly,
V. ORDER
IT IS HEREBY ORDERED THAT Citation 1 is AFFIRMED as a serious violation and Respondent is assessed and
directed to pay to the Secretary a civil penalty of $2,800,
and Citation 2 is AFFIRMED as an other-than-serious violation without
a penalty assessment.
SO ORDERED.
/s/
JOHN
B. GATTO, Judge
Dated: February 28, 2018
Atlanta,
GA
[1] The Secretary of Labor has assigned
responsibility for enforcement of the Act to OSHA and has delegated his
authority under the Act to the Assistant Secretary for Occupational Safety and
Health, who heads OSHA. See Order No. 4–2010 (75 FR 55355), as superseded in
relevant part by 1–2012 (77 FR 3912). The Assistant Secretary has redelegated
his authority to OSHA’s Area Directors to issue citations and proposed
penalties. See 29 C.F.R. §§
1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably
herein.
[2] The Act contemplates various grades
of violations of the statute and its attendant regulations— “willful”;
“repeated”; “serious”; and those “determined not to be of a serious nature”
(the Commission refers to the latter as “other-than-serious”). 29 U.S.C. § 666.
A serious violation is defined in the Act; the other grades are not. See 29
U.S.C. § 666(k).
[3] Attached to the Complaint and
adopted by reference were the two citations at issue. (Compl., Ex. A, Ex.
B.) Commission Rule 30(d) provides that
“[s]tatements in a pleading may be adopted by reference in a different part of
the same pleading or in another pleading or in any motion. A copy of any
written instrument which is an exhibit to a pleading is a part thereof for all
purposes.” 29 C.F.R § 2200.30(d).
[4] The issuance of this decision and
order was delayed until the court reporter filed the certified electronic
copies of the trial exhibits on February 5, 2018.
[5] The 6/12 steep sloped roof on this
one-story home was limited to the gable. Mr. [redacted] and Mr. Alderman did
not access or walk on the 6/12 roof, and this area of the roof was clearly
delineated. (Tr. 37, 40.)
[6] The Secretary asserts [redacted]
made the repair because he “didn’t want to lose his job.” (Compl’t’s Proposed
Findings at ¶ 30) (citing Tr.
47:18-19, 222:10-25 -23:1). However, the cited testimony does not support this
assertion.
[7] Wilson and [redacted] believed a
“safety monitor” could perform the function from a stationary position on the
ground and still comply with OSHA’s rules. (Tr. 181.) [redacted] referred to the monitoring
position as a “ground guy” and believed a monitor assigned to the position was
responsible for breaking one’s fall. (Tr. 245.)
[8]
The parties stipulated in the amended pretrial order that Alderman was standing
on the ground acting as a safety monitor while handing pieces of siding to
West, who was on the roof. (Am.
Pretrial Order, Ex. C., p. 13.) The
testimony shows that West was the safety monitor and Alderman was on the
roof. (See Tr. 149.) Nonetheless, the Court’s analysis and
disposition of this case would be the same regardless of which employee was the
safety monitor on the ground and which employee, in addition to [redacted], was
on the roof.
[9] As indicated supra, the Secretary of Labor delegated his authority under the Act
to the Assistant Secretary of Labor for Occupational Safety and Health. The
Assistant Secretary has promulgated occupational safety and health standards, see
e.g., 29 C.F.R. Parts 1910 and 1926.
[10] This case arose in Ocklawaha,
Florida, and according to the Florida Division of Corporation’s online records,
the company’s principal address is in Ocala, Florida, both in the Eleventh
Circuit. Both parties may appeal the final order in this case to the Eleventh
Circuit Court of Appeals, and Jody Wilson may also appeal to the District of
Columbia Circuit. See 29 U.S.C.
§660(a) & (b). The Commission has held that “[w]here it is highly probable
that a case will be appealed to a particular circuit, the Commission generally
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).
The Court applies the precedent of the Eleventh Circuit in deciding the case.
[11]
The Eleventh Circuit was created when the Fifth Circuit split on October 1,
1981. Immediately after the split, the Eleventh Circuit stated in Bonner v.
City of Prichard, Alabama, 661 F. 2d 1206 (11th Cir. 1981), that any
opinion issued by the Fifth Circuit before the close of business on September
30, 1981 is binding precedent on the Eleventh Circuit.
[12] Safety monitoring systems and their use shall comply with
the following provisions:
(1) The employer shall designate a competent
person to monitor the safety of other employees and the employer shall ensure
that the safety monitor complies with the following requirements:
(i) The safety monitor shall be competent to
recognize fall hazards;
(ii) The safety monitor shall warn the employee
when it appears that the employee is unaware of a fall hazard or is acting in
an unsafe manner;
(iii) The safety monitor shall be on the same
walking/working surface and within visual sighting distance of the employee
being monitored;
(iv) The safety monitor shall be close enough to
communicate orally with the employee; and
(v) The safety monitor shall not have other
responsibilities which could take the monitor's attention from the monitoring
function.
(2) Mechanical equipment shall not be used or
stored in areas where safety monitoring systems are being used to monitor
employees engaged in roofing operations on low-slope roofs.
(3) No employee, other than an employee engaged
in roofing work [on low-sloped roofs] or an employee covered by a fall
protection plan, shall be allowed in an area where an employee is being
protected by a safety monitoring system.
(4) Each employee working in a controlled access
zone shall be directed to comply promptly with fall hazard warnings from safety
monitors.
29 C.F.R. §1926.502 (h).
[13] An exception under
paragraph (b)(13) exists if Jody Wilson can demonstrate the infeasibility of
these protective measures or the existence of a greater hazard. However, the
Commission has repeatedly held that the party claiming the benefit of an
exception to the requirements of a standard has the burden of proof of its
claim. Kaspar Wire Works, Inc., 18
BNA OSHC 2178, 2194 (No. 90-2775, 2000), aff'd,
268 F.3d 1123 (D.C. Cir. 2001); Westvaco Corp.,
16 BNA OSHC 1374, 1377-78 (No. 90-1341, 1993).
Here, Jody Wilson offered no evidence to establish the infeasibility of
these protective measures or the existence of a greater hazard.
[14] In 2015, Congress passed the Federal
Civil Penalties Inflation Adjustment Act Improvements Act, which directs
agencies to adjust their penalties for inflation each year and requires
agencies to publish “catch up” rules to make up for lost time since the last
adjustments. The Secretary has increased
the relevant penalties annually. See
83 FR 7 (2018); 82 FR 5373 (2017); 81 FR 43430, 43432 (2016). However, the adjusted civil penalty amounts
are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after
November 2, 2015, the date of enactment of the Inflation Adjustment Act. (81 FR
at 43431.) Here, the penalties were
assessed on June 16, 2016. Therefore,
the increased penalties do not apply.
[15] To perfect the record, and “to be
fair to the company about whether or not there were any previous inspections
within the last five years,” the Court ordered the record to stay open after trial
and directed the Secretary to submit any evidence regarding investigations OSHA
may have conducted at the On Top of the World worksite. (Tr. 265.) Subsequently, OSHA’s Jacksonville Area
Director, Brian Sturtecky, submitted a declaration stating that Ocala, Florida,
is part of the Jacksonville Area Office’s territory, that he had been the Area
Director since 2011, and that he had never heard of the On Top of the World
development and was not aware of any OSHA inspections of that development since
he has been the Area Director. (Id. ¶¶
2, 5, 6.)
[16] See Aviation
Constructors, 18 BNA OSHC at 1922 (“While we find that [the
employer] did not make good faith efforts to comply with respect to the
particular provision of the standard at issue here, we nevertheless conclude
that [the] overall circumstances should be taken into consideration in
assessment of an appropriate penalty [for a willful violation].”); Manganas Painting Co.,
Inc., 21
BNA OSHC 2043, 2055 (Nos. 95-0103, 2007) (consolidated) (good faith can be
mitigating factor in determining penalty for willful violation), rev'd in part on other
grounds, 540 F.3d 519 (6th Cir. 2008).
[17]Although they may be persuasive,
unreviewed administrative law judge decisions do not constitute binding
precedent. KS Energy Serv. Inc., 23 BNA OSHC 1483 (No. 09-1272, 2011); Leone
Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976).
[18] Lightner testified he
made a mistake in his initial recommendation and should have applied a 30%
reduction based upon Respondent’s size. (Tr. 78-79.) However, under OSHA's
2012 Interim Administrative Penalty Policy in effect at the time of the penalty
assessment (https://www.osha.gov/dep/enforcement/admin_penalty_mar2012.html), a
60% reduction applied for an employer with 1-25 employees. The Court takes judicial notice of this
policy. See Fed. R. Evid. 201.