Some personal identifiers have been redacted for privacy
purposes
United States of
America
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
1924
Building - Room 2R90, 100 Alabama Street, S.W.
Atlanta,
Georgia 30303-3104
|
Secretary of Labor, |
|
|
Complainant |
|
|
v. |
OSHRC
Docket No.: 17-0455 |
|
Century
Communities d/b/a Century Communities of GA, LLC, |
|
|
Respondent. |
|
Attorneys and Law Firms:
Lydia J. Chastain, Esquire, U.S. Department of Labor, Office
of the Solicitor, Atlanta, Georgia,
for
Complainant
Edwin
G. Foulke, Esquire; Michelli Rivera, Esquire; Collin Warren, Esquire and Angie Yeremiah, Esquire, Fisher & Phillips LLP, for
Respondent
JUDGE: Administrative Law Judge Heather A. Joys
DECISION
AND ORDER
Century Communities, Inc., dba Century
Communities of GA, LLC (Century), a general contractor, contests a one-item
Citation and Notification of Penalty issued February 16, 2017, by the
Secretary. The Secretary issued the
Citation following a fatality investigation by the Occupational Safety and
Health Administration in response to a residential construction site accident
that killed one worker and seriously injured another. The accident occurred when a crane operator
brought the boom of the crane too close to energized overhead power lines,
causing an electrical arc. The Secretary
cited Century, as the controlling employer, for a serious violation of 29
C.F.R. § 1926.1408(a)(2) for failing to protect employees from electrical shock
hazards. The Secretary proposes a
penalty of $12,675.00.
Century timely contested the Citation. I held a hearing in this matter on February 22
and 23, 2018, in Atlanta, Georgia. The
parties filed briefs on April 30, 2018. Century
argues the Secretary failed to establish the company’s employees had access to
the hazardous condition or the company knew of the violative conduct.
For
the reasons that follow, I AFFIRM the
cited item and assess a penalty of $12,675.00.
JURISDICTION
AND COVERAGE
Century timely contested the Citation and
Notification of Penalty on March 14, 2017. The parties agree the Commission has
jurisdiction over this action and Century is a covered business under the Act
(Complaint, ¶¶ I and II; Answer, ¶ 3; Exh. J-1, p. 11, ¶¶ A, B, and C). Based
on the stipulations and the record evidence, I find the Commission has
jurisdiction over this proceeding under § 10(c) of the Act and Century is a
covered employer under § 3(5) of the Act.
BACKGROUND
Stipulations
The Secretary and Century stipulated
to a Statement of Agreed Facts, which
“will require no proof at the hearing.” (Exh. J-1, p. 6) Summarized, the
relevant agreed facts establish the following (Exh. J-1, pp. 6-11, ¶¶ C through
XX):
Century acted as developer and
construction manager of a residential subdivision called Moss Creek Estates in
Alpharetta, Georgia. Century had general
supervisory authority over the subdivision worksite, including the power to
correct identified safety or health hazards, either by acting on its own or
requiring subcontractors to correct them.
For this project Century employed three construction managers (Andy
Gaddis, James McGinnis, and Daniel Schlosberg) and a finishing manager, Mike
Harden. The construction managers
inspected each of the active home site lots to which they were assigned at
least twice a day.
Moss Creek Estates comprises 61
residential lots. By October 12, 2016,
Century and its subcontractors had completed approximately 47 of the lots. The remaining lots were either still under
construction or vacant. Century assigned
construction manager Andy Gaddis to oversee Lot 51, but Century authorized all
its construction managers to identify and correct perceived safety hazards on
any of the lots within the subdivision.
Century contracted with JLNC, Inc.,
owned by Jeff Nelson, to perform crane services at the Moss Creek Estates. Century engaged E&N Construction Group,
LLC, (E&N) as the framing contractor for the project. In turn, E&N, which was owned by foreman
and competent person Ezequiel Pulido, contracted with JP General Construction,
LLC, (JPGC) to perform framing services at the worksite. Jesus Palma was the owner of JPGC, and he
acted as supervisor and competent person at the worksite.
The construction plan for all of the
houses built in the Moss Creek Estates subdivision required the use of a crane
to lift and position the trusses during the framing phase of the
construction. Unlike the other lots, overhead
electrical lines crossed over portions of Lots 50 and 51. The overhead electrical lines were rated at
approximately 119.15kV.
Century construction manager Andy
Gaddis ordered the wood framing and truss materials for construction of the
house on Lot 51. On or before October
10, 2016, the framing and truss materials were delivered and placed to the
front far left (looking from the street towards the site for the house) of Lot
51.
On October 12, 2016, JLNC crane
operator Jonathon Shadwick arrived at Lot 51 with a Manitex Hydraulic Boom
Truck Crane. Shadwick was an experienced
crane operator and a competent person.
He had authority to stop operation of the crane if he had a concern for
safety. He arrived at Lot 51 at
approximately 7:00 a.m. and set up the crane for operation, including deploying
the outriggers and stabilizers.
All of Century’s construction and
finishing managers were at the Moss Creek Estates worksite the morning of
October 12, 2016. James McGinnis arrived
before 6:45 a.m. Mike Hardin arrived at
approximately 7:00 a.m. and Andy Gaddis arrived between 7:00 and 7:20 a.m. Daniel
Schlosberg arrived between 7:30 and 7:45 a.m.
Also present was E&N owner Ezequiel Pulido, who was onsite to
supervise the work performed by the JPGC employees.
JPGC owner Jesus Palma arrived at
approximately 8:20 a.m. with five employees to install trusses on the house
under construction on Lot 51. Four JPGC
employees began working inside on different levels of the house. Shadwick worked with the Decedent and
Employee #1 on the ground outside the house to lift the small trusses (known as
Little Fingers) on the left side of the crane (viewed from the street). These lifts were completed without incident.
Shadwick then moved the crane boom
to the right side of the crane near the area where some of the large trusses
were located. The large trusses
originally had been delivered to the street and then moved to the far left side
of Lot 51. They were later moved to the
far right side of Lot 51 and placed underneath the overhead power lines. The Decedent and Employee #1 were working on
the ground preparing to connect the chain and wire slings to the large trusses
on the ground.
At approximately 8:52 a.m., Shadwick
began operating the crane to lift one of the large trusses. As the boom moved to lift the truss, the
hoist cable or the boom came within 20 feet of the overhead power lines. This proximity resulted in the electrocution
of the Decedent and serious electrical shock to Employee #1.
Several employees called 911 at
approximately 8:53 a.m. Emergency
medical personnel arrived and eventually airlifted the Decedent and Employee #1
to Grady Memorial Center. The Decedent
died more than two weeks later, on October 28, 2016.
After OSHA’s Atlanta East Area
Office received notification of the accident on October 12, 2016, CSHO Maurice
Starks was assigned to conduct a fatality investigation at the worksite. He was assisted by CSHO Joel Batiz, who
provided Spanish interpretation as needed during employee interviews.
Withdrawn
Stipulation and Deposition of Jonathon Shadwick
The parties filed their Joint Prehearing Statement, which
includes the Statement of Agreed Facts,
on February 7, 2018. On February 20,
2018, two days before the scheduled hearing, Century moved to amend the Joint Prehearing Statement, seeking to
remove ¶ YY from the Statement of Agreed
Facts. Paragraph YY states,
“Respondent is no longer asserting the affirmative defense of unpreventable
employee misconduct.” (Exh. J-1, p.11) Century had asserted unpreventable
employee misconduct (UEM) as its “Third Defense” in its answer.
At the hearing, counsel for Century
stated it had newly discovered evidence indicating Jonathon Shadwick, the crane
operator, may have engaged in employee misconduct (Tr. 11). The Secretary’s counsel objected based on
prejudice (she had not seen the newly discovered evidence (Tr. 10-11)) and
because, as she stated, Mr. Shadwick “was not an employee of Century
Communities, and I struggle to see how his misconduct could be relevant to the
employee misconduct defense in this case.” (Tr. 13) I granted Century’s motion
to amend the Joint Prehearing Statement
by deleting ¶ YY, and I allowed the company to reassert the UEM defense (Tr. 13-14).
The newly discovered evidence came
to Century in the form of a deposition of Jonathon Shadwick, taken January 29,
2018, for a separate civil proceeding (Tr. 12).
I informed Secretary’s counsel she would have the opportunity to review
the deposition before Mr. Shadwick testified (Tr. 13). Century’s counsel had subpoenaed Mr. Shadwick
as a witness at the hearing, but Mr. Shadwick failed to honor the subpoena (Tr.
413). At the end of the hearing, Century’s
counsel moved to admit the deposition in lieu of Mr. Shadwick’s testimony and
“reserve[d] the right to enforce the subpoena.” (Tr. 418) I held the record open to allow the parties
to brief the admissibility of the deposition (Tr. 418). Subsequently, the Secretary responded he “consents
to the admission of Mr. Shadwick’s deposition transcript, [so] there is no need
for the Commission to enforce the subject subpoena.” (Response to Respondent’s Motion to Enforce the Subpoena to Appear for
Jonathon Shadwick, p.1) On March 28,
2018, I issued an order admitting Mr. Shadwick’s deposition and closing the
record. Consequently, the deposition of
Jonathon Shadwick is part of the record in this proceeding. Century did not pursue the UEM defense during
the hearing and does not address the defense in its brief. I deem Century’s UEM defense waived.
Deposition
Testimony of Jonathon Shadwick
Mr. Shadwick testified he received
an assignment the evening of October 11, 2016, via text message from JLNC owner
Jeff Nelson, to bring a crane to Lot 51 at the Moss Creek Estates the next
morning. Mr. Shadwick had never worked
at Moss Creek Estates before, but he had operated cranes numerous times for
Century. He stated, “[P]retty much all
[JLNC’s] work came from Century.” (Deposition,
p. 48). Usually, Mr. Shadwick was
accompanied on his assignments by a JLNC employee he identified as Angel. “[H]e would basically be my negotiator and my
rigger.” (Id. at 40) Angel speaks Spanish, which Mr. Shadwick does
not, so Angel acted as translator when Mr. Shadwick was working with
Spanish-speaking crews. Angel did not
accompany Mr. Shadwick on October 12, 2016, due to the illness of his
child. Mr. Shadwick undertook the Moss
Creek Estates assignment alone (Id. at
41-42).
JLNC required crane operators to arrive at
the yard where the cranes were kept by 6:15 a.m. the day of an assignment. Mr. Shadwick arrived at the yard at 6:15 a.m.
on October 12, 2016, to pick up the crane and arrived at Lot 51 between 6:30
and 6:45 a.m.[1] He backed into the driveway for the house
under construction and parked. It was
dark when he arrived. He waited until
about 7:30 to start setting up the crane in anticipation of the framing crew
arriving at 8:00 a.m. (Id. at 44-46, 51, 54-55).[2]
Before setting up, Mr. Shadwick
exited the crane and walked around the site.
He noted the overhead power lines and determined in order to avoid the
lines, he “wasn’t going to work on the right side of the house.” (Id. at. 59) Mr. Shadwick observed he had parked “directly
under the line,” so he backed the crane up to where he thought it “was okay” (Id. at 57) Mr. Shadwick knew he was required to ensure
no part of the crane was closer than 20 feet to an energized power line. He did not measure the distance from the
overhead power line to the crane, but just “eyeballed it.” (Id. at 100)
Shortly after arriving at Lot 51, he
saw one other man in the area, whom he took to be a member of the framing
crew. They spoke briefly and the man
left (Id. at 52-53, 67). After Mr. Shadwick had set up the crane, but
before the accident, he saw a man walking past wearing a hard hat and a polo
shirt bearing the Century logo. Mr.
Shadwick had seen Century employees on other jobs wearing the same kind of
logoed shirt (Id. at 68-70). Mr. Shadwick had not seen him before and did
know his name. He described the man has
having “short hair, white guy.” (Id. at
69) They did not interact. Mr. Shadwick saw him again at Lot 51 after
the accident (Id. at 70).
Mr. Shadwick described the moment
the crane’s boom either made contact with the overhead power line or caused an
electrical arc flash. Two of JPGC’s
employees, the Decedent and Employee #1, were walking toward a truss to the right
of the house and Mr. Shadwick followed them with the boom. As he did so, the boom came within 20 feet of
the overhead power line (Id. at
82). He heard an explosion and
“everything went black and there was a blue ball in front of me. And it hit and—it hit. I looked up and it, boom, hit again.” (Id. at 82) Mr. Shadwick jumped off the crane and ran
over to the two crew members, then ran across the street and called 911 (Id. at 84).
Q.: What condition were the two workers in that
were injured?
Mr. Shadwick: Horrible.
They were on fire.
Q.: Literally?
Mr. Shadwick: Yeah.
Q.: Both of them were on fire?
Mr. Shadwick: They were.
Q.: Were they on fire for just kind of a split
second or a flash or—
Mr. Shadwick: They were on fire.
Q.: On fire burning?
. . .
Mr. Shadwick: Yes.
(Id.
at 84)
He stated no one from Century warned
him about setting up the crane too close to the overhead power lines the day of
the accident or held a safety meeting with him (Id. at 104). Had a Century
representative told him to reposition the crane, he “would have seen them as
the ultimate authority.” (Id. at 104)
Testimony of Century
Managers
James McGinnis
James McGinnis is a construction manager for Century (Tr.
367). He testified he tried to visit his
assigned lots at the Moss Creek Estates twice a day, and would inspect for
safety hazards during his visits (Tr. 367-368).
He scheduled subcontractors for his lots and he knew that once the
trusses were delivered, the framers would install them with the help of a crane
in a day or two. Either Mr. McGinnis or
E&N framing contractor Ezequiel Pulido would call JLNC to send out a crane
when the framers were ready to install the trusses (Tr. 371).
Mr. McGinnis was the construction manager for Lot 50,
over which the energized power lines also crossed (Exh. C-12; Tr. 374). He did not know the voltage of the overhead
power lines crossing over Lots 50 and 51, and at the time of the accident he
was not aware of the minimum safe distance that should be maintained between
energized power lines and cranes (Tr. 372-373).
Mr. McGinnis arrived at approximately 6:45 a.m. the day
of the accident, driving a black Chevy Silverado. He drove past Lots 50 and 51 on his way to
visit Lots 43 and 45. He did not see the
crane. At the time of the accident, he
was in the house on Lot 49 with a house inspector. Mr. McGinnis stated he could not see the
crane set up on Lot 51 from the sidewalk on his way to the house on Lot 49 (Tr.
376-77, 382).
Daniel Schlosberg
Daniel Schlosberg is a Century construction manager. He was working as a finish manager to assist
Mr. McGinnis at the Moss Creek Estates.
He was authorized to identify and correct safety hazards at the worksite
(Tr. 387-388). He was aware of the
overhead power lines crossing Lots 50 and 51 at the worksite. He did not know the voltage. Mr. Schlosberg arrived at the Moss Creek
Estates between 7:30 and 7:45 a.m. the day of the accident (Tr. 389). When asked if he had seen the crane parked at
Lot 51, Mr. Schlosberg responded, “I wasn’t paying attention to a crane.” (Tr.
391)
Michael Harden
Michael is a finish manager for Century. He stated he was working with Andy Gaddis the
morning of the accident, on Lots 16 and 17, from where Lot 51 was not visible (Tr.
400-01).
Andy Gaddis
Andy Gaddis is a construction manager for Century who was assigned
Lot 51. He visited each of his assigned
lots twice a day, once in the morning and once in the afternoon. He estimated that on a normal day, to get to
his assigned lots he drove by Lot 51 eight to ten times (Tr. 282). Mr. Gaddis drove a blue Toyota Tacoma truck
while working at the Moss Creek Estates (Tr. 281, 305, 334). He agreed he is responsible for recognizing
potential hazards on contracts before work starts, including the site-specific
hazard of the presence of overhead energized power lines (Tr. 284). He stated he did not see the crane at Lot 51
the morning of the accident (Tr. 338-39).
Mr. Gaddis agreed he is responsible for scheduling the
subcontractors on his assigned lots.
Framers usually take five to seven days to frame the house, and between
the fifth and seventh day, the trusses should be delivered. Once the trusses are delivered, the framers
install them within a few days (Tr. 289).
Mr. Gaddis scheduled the delivery of the trusses to Lot 51 (Tr.
290). He inspected Lot 51 the afternoon
before the accident and saw the trusses were onsite (Tr. 301).
Mr. Gaddis did not know the voltage of the overhead power lines
(Tr. 295). He believed “the crane would
be safe if it stayed 10 feet away from the power line,” rather than the 20 feet
required by Table A of § 1926.1048(a)(2) (Tr. 295). He did not discuss the overhead power lines
with E&N before construction on the house started (Tr. 298). He intended for the trusses to be delivered to
an area to the left of the house so the crane operator could lift them without
approaching the overhead power lines (Exh. C-34; Tr. 303-04). He instructed the delivery company he wanted
the trusses placed as “far left as they could get them on the lot. . . [s]o that the trusses would be away from the
high cable lines as far as possible when they did the lift. That way I was anticipating the crane guys
[sic] to actually operate the crane from the left side of the house.” (Tr. 344)
He did not communicate this plan to E&N, JPGC, or JLNC (Tr. 299-300). When
asked why he did not tell them of his plan, Mr. Gaddis stated, “I had no
knowledge that the crane was coming.” (Tr. 304-05) He did not ask Mr. Pulido
when he expected the crane operator to arrive or ask to be notified when he did
(Tr. 360).
Testimony of Safety
Consultant Robert Masterson
Robert Masterson is a safety consultant hired by Century in 2016
“[t]o help them focus their safety program and improve on the areas out on the
job site.” (Tr. 405) Mr. Masterson
“coached” area managers and site supervisors on safe work practices (Tr.
405). He made onsite visits to Moss
Creek Estates (Tr. 407).
He testified bringing a crane onto a site with overhead energized
power lines is “a site-specific hazard, absolutely,” and he would check to make
sure the crane was a safe distance from the line (Tr. 409).
Q.: So working too close to a power line is a
big mistake?
Mr. Masterson:
Yes.
Q.: And
something that you would look for in your safety inspections?
Mr. Masterson:
Yes.
Q.:
Something you would expect Century Communities would look for in their
safety inspections?
Mr.
Masterson: Yes.
(Tr. 410)
Testimony of
Subcontractor Employees[3]
Ezequiel Pulido
Ezequiel Pulido owned E&N, which Century had hired as
the framing contractor.[4] E&N hired approximately ten different
subcontractors to perform the framing on the houses at the Moss Creek
Estates. E&N hired JLNC for crane
services “because they were the crane [company] that Century had designated to
lift the trusses on the house.” (Tr. 235)
The day of the accident, the JPGC framing crew and the JLNC crane
operator were the only subcontractors on site, other than Mr. Pulido (Tr. 213,
227).
Century construction managers did not meet with Mr. Pulido for
preconstruction safety meetings prior to starting new houses at the Moss Creek
Estates. Sometimes he would meet a
construction manager to go over the house plans, but other times “they would
put [the plans] on the permit box that went with that house.” (Tr. 223) Neither Mr. Gaddis nor anyone else from
Century had discussed the overhead power lines crossing Lots 50 and 51 with Mr.
Pulido (Tr. 214).
Mr. Pulido arrived at the worksite around 8:10 a.m. the
day of the accident. He drove past Lot
51 and saw the JLNC crew and the crane set up in the driveway (Tr. 215,
217-19). When asked if he had any
concerns regarding the proximity of the crane to the overhead power lines, Mr.
Pulido stated, “The thing is that I hadn’t noticed the cables. I’d gone by there, but I had not noticed the
lines. . . [The power lines] were there,
but it’s kind of like I didn’t notice them.” (Tr. 220)
Employee #1
Employee #1 is the JPGC employee who was seriously
injured the day of the accident. No one
from Century or JPGC spoke with the framing crew about the overhead power lines
crossing Lot 51. He was not aware of the
minimum safe distance required for cranes operating near power lines (Tr.
263). He did not notice the power lines
prior to the accident (Tr. 273).
On October 12, 2016, before the accident occurred,
Employee #1 spoke with a Century construction manager who stopped by in his
blue truck as the JPGC crew was working.
“A builder passed by, and he just told us if everything was okay, if we
needed something or stuff like that. I
just told him we were okay, but he never got out or [said] something to all the
guys or stuff like that.” (Tr. 267)
“[H]e just stopped by and just asking if everything was okay. And I just told him, yes, you know,
everything’s okay.” (Tr. 269)
Employee #1 had seen him at the Moss Creek Estates before (Tr. 267). When asked what vehicle the man was driving, Employee #1 responded, “I remember it was a blue car, a blue truck.” (Tr. 267) Employee #1 knew he was “a builder” because he was wearing a Century logoed shirt (Tr. 269).[5]
Employee #2
Employee #2 worked as a carpenter for JPGC. [redacted] (Tr. 243). No one from Century or JPGC discussed the
overhead power lines crossing Lots 50 and 51 with JPGC before the
accident. Employee #2 did not know the
minimum safe distance to keep between the crane and the power lines (Tr. 246).
The day of the accident, JPGC’s crew all arrived at the
worksite in the same vehicle. They were
supposed to be at the site at 8:00 a.m., but were running late and did not
arrive until 8:25 or 8:30. They knew the
crane was scheduled to be at Lot 51 (Tr. 247).
Employee #2’s assignment was to stand on the third floor of the house
under construction in order to position the trusses being lifted by the
crane. He described the moment the
accident occurred.
[A]nd then suddenly we heard like thunder. And I was the first
one to look around to see what was going on.
And that’s where I saw [redacted], that he was on fire. He was getting burnt standing up. He was burning, standing up. And that’s where I screamed, “[redacted].” And I came down the best I could to try to
help him and then I went downstairs. . . And I went down that way to try to
help [redacted] who was already burning with fire.
(Tr. 249-50)
Employee #2 noticed the overhead power lines crossing Lot
51. He did not know the voltage of the
lines, but was aware “when the cables are that high up, they’re usually pretty
high voltage.” (Tr. 255) He did not
check to see how close the crane was to the overhead lines the day of the
accident. “Since we arrived late, the
truth is that we didn’t even think about that.” (Tr. 256)
THE
CITATION
Item
1: Alleged Serious Violation of § 1926.1408(a)(2)
Alleged
Violation Description
Item 1 of the Citation alleges,
On or about 10/12/2016 at the Moss
Creek Estates lot 51, Alpharetta, GA:
Century Communities, Inc. dba Century Communities of GA, LLC[,] the
Controlling employer who has general supervisory authority over the worksite,
including the power to correct safety and health violations itself or require
others to correct them; failed to
protect the employees engaged in truss connecting and lifting from the
electrical hazards by de-energizing and/or ensuring that no part of the crane,
rigging, and lifting equipment got closer than 20 feet from the live overhead
power lines rated at about 119.15kV. One
employee was fatally injured and another employee was seriously injured from
the crane coming closer than 20 feet or without de-energizing the overhead
power lines in the area.
Cited Standard
Section 1926.1408(a)(2) provides:
Before beginning equipment operations, the employer must:
…
Determine if any part of the equipment, load line or load
(including rigging and lifting accessories), if operated up to the equipment's
maximum working radius in the work zone, could get closer than 20 feet to a
power line. If so, the employer must meet the requirements in Option (1),
Option (2), or Option (3) of this section, as follows:
Option
(1)--Deenergize and ground.
Confirm from the utility owner/operator that the power line has been
deenergized and visibly grounded at the worksite.
Option
(2)--20 foot clearance. Ensure that no part of the equipment, load
line, or load (including rigging and lifting accessories), gets closer than 20
feet to the power line by implementing the measures specified in paragraph (b)
of this section.
Option
(3)--Table A clearance.[6]
DISCUSSION
The
Secretary’s Burden of Proof
The Secretary has the burden of
establishing the employer violated the cited standard. “To prove a violation of
an OSHA standard, the Secretary must show by a preponderance of the evidence
that (1) the cited standard applies; (2) the employer failed to comply with the
terms of the cited standard; (3) employees had access to the violative
condition; and (4) the cited employer either knew or could have known with the
exercise of reasonable diligence of the violative condition.” JPC
Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).
Century concedes the first two elements of
the Secretary’s case. It “does not
contest that 29 C.F.R. 1926.1408(a)(2) of the Occupational Safety and Health
Act of 1970 applies to the cited condition or that the requirements of the
standard were not met.” (Century’s brief, p. 201, n. 10) Century contends the
Secretary failed to establish employees had access to the violative condition
because Century’s own employees were not exposed, and because Century, as the
controlling employer, had exercised reasonable care to prevent and detect
safety violations at the worksite.
Century also argues the Secretary failed to establish Century knew or
could have known of the violative condition.
For ease of analysis, I will address the element of employer knowledge
first.
Century’s
Knowledge of the Violative Condition
[T]he Secretary
can prove employer knowledge of the violation in one of two ways. 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. See Georgia Elec. Co. v.
Marshall, 595 F.2d 309, 321 (5th Cir.1979); New York State Elec. & Gas Corp., 88 F.3d at 105; see also Secretary of Labor v. Access Equip.
Sys., Inc., 18 O.S.H. Cas. (BNA) 1718, at *9 (1999). An example of actual
knowledge is where a supervisor directly sees a subordinate's misconduct. See, e.g., Secretary of Labor v. Kansas
Power & Light Co., 5 O.S.H. Cas. (BNA) 1202, at *3 (1977) (holding that
because the supervisor directly saw the violative conduct without stating any
objection, “his knowledge and approval of the work methods employed will be
imputed to respondent”).
ComTran Grp., Inc. v.
U.S. Dep't of Labor, 722 F.3d 1304, 1307–08 (11th Cir. 2013).
The morning of the accident, four Century
managers were at the Moss Creek Estates site.
Mr. Pulido of E&N was also present at the site, as were JLNC crane
operator Jonathon Shadwick and JPGC’s crew.
No other subcontractor employees were present (Tr. 227).[7] Mr. Shadwick testified that, after he had
positioned and set up the crane the morning of the accident, he saw a man
walking past Lot 51 wearing a Century polo shirt (Deposition, pp. 69-70). Mr.
Shadwick testified setting up the crane “probably took me pretty close to
8:00.” (Id. at 55) At that point, the sun had risen and the
proximity of the crane to the overhead power lines was in plain view. The JPGC crew arrived approximately half an hour
later. Between 8:30 a.m. and 8:53, when
the accident occurred, Employee #1 spoke with a man in a blue truck who was
wearing a Century shirt. Employee #1 was
standing in the yard of Lot 51. He
testified the rest of the crew was “already on the house. . .
The boom [of the crane] was already extended and everything.”(Tr. 269) Several trusses were lying directly under the
overhead power lines, which were in plain view.
It is not possible based on the
record to determine whether the Century manager Mr. Shadwick saw walking by Lot
51 at approximately 8:00 a.m. was the same Century manager Employee #1 spoke
with later. It is possible, however, to
determine the most likely identity of the construction manager who spoke with
Employee #1.
Mr. Gaddis drove a blue Toyota Tacoma
truck the day of the accident. Other
than JPGC’s vehicle and the crane, the only other vehicles mentioned in the
record at the worksite that day are Mr. McGinnis’s black Chevy Silverado and a
white Silverado observed by some of the JPGC employees (Tr. 191-93,
376-77). Employee #1 twice stated the
Century construction manager he spoke with was driving a blue truck (Tr. 267,
271-72). Although appearing nervous, he
was straightforward and unwavering in his testimony. His testimony was candid; he sounded
unrehearsed. I find him a thoroughly
credible witness and give great weight to his testimony.
Mr. Gaddis arrived in his blue truck at
the Moss Creek Estates between 7:00 and 7:20 a.m. the day of the accident (Tr.
281, 305, 334). He was the construction
manager assigned to Lot 51. He had observed
the trusses that had been delivered to the lot when he had inspected it the
previous afternoon (the trusses had been delivered at least by October 10, 2016,
two days before the accident). Based on
the framing that had already been completed on the house and the delivery of
the trusses, Mr. Gaddis knew the arrival of the crane was imminent. As the construction manager in charge of Lot
51, he is the most likely manager to stop by Lot 51 and ask the framing
employees “if
everything was okay, if [they] needed something.” (Tr. 267)
Mr. Gaddis denied driving past Lot
51 the day of the accident (Tr. 334). Mr.
Gaddis was Century’s representative at the hearing and was present in the courtroom
when Employee #1 was questioned about the manager he saw.
Q.: What did he look like?
Employee #1: I don’t remember. Like since the accident, I’ve just kind of
had problems, you know, remembering since then.
Q.: Would you recognize him if you saw him again?
Employee #1: Maybe.
Q.: Do you see him in this room?
Employee #1:
No.
(Tr.
268)
Despite Employee #1’s inability to
identify Mr. Gaddis at the hearing and Mr. Gaddis’s denials, the record
supports a finding it is more likely than not that the Century manager with
whom Employee #1 spoke was Andy Gaddis.
Employee #1 spoke with the Century manager “less than a minute or two”
the morning of the accident (Tr. 270).
The Century manager was in a truck, stopped in the street, as Employee
#1 paused in his work to speak with him.
The Century manager did not get out of the truck. A few minutes later, Employee #1 experienced
a horrific accident and sustained serious injuries. I do not find it significant he was unable to
identify the Century manager under these circumstances.
Mr. Gaddis testified repeatedly he
did not go past Lot 51 the morning of October 12, 2016, and he “had no
knowledge that the crane was coming.” (Tr. 304-05) I find Mr. Gaddis’s testimony conflicting and
self-serving. The Secretary’s counsel impeached
him numerous times when he made statements inconsistent with his deposition
testimony (Tr. 297-302). He testified he
had discussed the presence of the overhead power lines on Lot 51 in
preconstruction safety meetings with the subcontractors (Tr. 296). This statement was contradicted by Mr.
Pulido, Mr. Shadwick, the JPGC employees, and Mr. Gaddis’s own deposition
testimony (Tr. 297-98). He stated he had
communicated his plan for safe installation of the trusses to the
subcontractors; Mr. Pulido, the JPGC employees, and Mr. Shadwick testified no
one from Century ever addressed the issue of the overhead power lines with
them. Mr. Pulido, owner of E&N, was
not even aware the power lines were there (Tr. 220). When confronted with his deposition testimony
answering “No” to the question, “Did you on that day or any time prior to that
day discuss with [Mr. Pulido] or any of the other subcontractors your plan for
safely installing the trusses?,” Mr. Gaddis stated he “must have been confused”
regarding a written plan versus a verbal plan (Tr. 301). I find Mr. Gaddis’s testimony to be
unreliable and untrustworthy. I give it
no weight.
Although I find the Secretary has
established by a preponderance of the evidence that Mr. Gaddis was the Century
construction manager who stopped and spoke with Employee #1, his identity is
not crucial to the Secretary’s case. Century’s
construction managers have the authority to correct a safety hazard even if
they are not assigned to a particular lot (Tr. 285). The only Century employees at the Moss Creek
Estates the day of the accident were James McGinnis, Daniel Schlosberg, Michael
Harden, and Andy Gaddis. All were
supervisory employees. Mr. Shadwick
testified he saw a man walk by wearing a Century shirt around 8:00 a.m., when
the crane was set up in proximity to the overhead power lines, with several
trusses lying directly below the lines.
Employee #1 testified he spoke with a man wearing a Century shirt
between 8:25 and 8:53 a.m., when the boom of the crane was extended. Whether Mr. Shadwick and Employee #1 saw the
same Century manager or two different ones, the Secretary has established at
least one Century supervisory employee had actual knowledge the JLNC crane was
positioned so that parts “of the equipment, load line or load (including rigging and
lifting accessories), if operated up to the equipment's maximum working radius
in the work zone, could get closer than 20 feet to a power line.” As a supervisor, his actual knowledge is
imputed to Century.[8]
Access
to the Violative Condition
The
tragic facts of this case establish the employees present at Lot 51 the morning
of October 12, 2016, had access to the violative condition created by the
proximity of the crane boom to the energized overhead wires. Century’s initial argument, however, is “the
citation should be vacated because the evidence presented at trial showed that
no Century Community employees were exposed to the hazard.” (Century’s brief, p. 22) This argument ignores the Commission’s
multi-employer worksite doctrine, which holds, “[A]n employer owes a duty under
§ 5(a)(2) of the Act not only to its own employees but to other employees at
the worksite when the employer creates and/or controls the cited
condition.” Summit Contractors, Inc., 23
BNA OSHC 1196, 1205 (No. 05-0839, 2010).[9] “[A]n employer's duty to exercise reasonable
care where
its own employees are not exposed to the hazard ‘is less than what is required
of an employer with respect to protecting its own employees,’ such that a
general contractor need not inspect the worksite as frequently as an employer
whose own employees are exposed to the hazard. See Summit
Contractors Inc., 22 BNA OSHC 1777, 1781 (No. 03-1622, 2009)
(citing OSHA's Multi-Employer Citation Policy, OSHA Instruction CPL 02-00-124 §
X.E.2 (Dec. 10, 1999)).” Evergreen Constr. Co., 26 BNA OSHC 1615, 1618 (No. 12-2385, 2017).
A controlling employer is one “who has general supervisory
authority over the worksite, including the power to correct safety and health
violations itself or require others to correct them. Control can be established
by contract or, in the absence of explicit contractual provisions, by the
exercise of control in practice.” OSHA's Multi-Employer
Citation Policy, OSHA Instruction CPL 02-00-124 (Dec. 10, 1999) (CPL). Here, the parties stipulate Century had
“general supervisory authority over the Worksite, including the power to
correct identified safety and/or health hazards itself or require others to
correct them.” (Exh. J-1; p. 6, ¶ H) I find Century was a controlling employer,
and it owed a duty “to other employees at the worksite,” including the
employees present on Lot 51 on October 12, 2016, because Century controlled the
cited condition.
Century next argues that, as a
controlling employer, it met the standard of “reasonable care” set out in the
CPL.
A controlling employer must exercise reasonable
care to prevent and detect violations on the site. The extent of the measures
that a controlling employer must implement to satisfy this duty of reasonable
care is less than what is required of an employer with respect to protecting
its own employees. This means that the controlling employer is not normally
required to inspect for hazards as frequently or to have the same level of
knowledge of the applicable standards or of trade expertise as the employer it
has hired.
The CPL lists the pertinent factors in
determining reasonable care.
Factors that affect how frequently and closely a controlling
employer must inspect to meet its standard of reasonable care include:
Century addresses each factor of the reasonable
care standard (Century’s brief, pp. 31-35) and concludes it “met all reasonable
care requirements set forth in the multi-employer doctrine and the citation
cannot stand.” (Id. at 35) These factors, however, are relevant in
determining whether the controlling employer exercised “reasonable care to
prevent and detect violations on the site.”
Reasonable care is not an issue in this case because, as established in
the previous section addressing employer knowledge, Century had actual
knowledge the crane was positioned so that it could be operated closer than 20
feet to the overhead power lines, creating a hazardous condition. The frequency of the inspections is not at
issue because the Secretary has established Century had actually detected the
violative condition, yet did nothing to prevent it.[10]
Century argues it reasonably relied on JLNC, as
the supplier of the crane and its operator, to set up and operate the crane
safely, citing Sasser Electric and
Manufacturing Co., 11 BNA OSHC 2133, 2136 (No. 82-178, 1984) (“[W]hen some
of the work is performed by a specialist, and employer is justified in relying
upon the specialist to protect against hazards related to the specialist’s
expertise so long as the reliance is reasonable and the employer has no reason
to foresee that the work will be performed unsafely.”). Sasser is
inapposite here.[11] Century’s reliance on JLNC was not reasonable
because Century had every reason to foresee the crane operation would not be
performed safely—the Century construction manager could plainly see the crane
was set up too close to the overhead power lines and several trusses were lying
directly under the lines. Sasser “does not apply when an employer
has reason, by way of expertise, control, and time, to foresee a danger to its
employees.” Fabi Construction Co., Inc.
v. Secretary of Labor, 508 F.3d 1077, 1083 (D.C. Cir. 2007). Century’s construction manager could foresee
the danger to the subcontractors’ employees of the crane’s boom or cable
contacting the energized power lines or coming close enough to create an
electrical arc flash.
I find the employees working on Lot 51 the
morning of October 12, 2016, had access to the violative condition of the crane
coming within 20 feet of the energized power lines. Century, as controlling employer, owed the
subcontractors’ employees a duty of care.
Conclusion
Century
stipulated the cited standard applies to the cited condition and the standard
was violated. The Secretary has
established Century had actual knowledge of the violation and the employees of
two of its subcontractors, to whom Century owed a duty of care, had access to
the violative condition. The Secretary
has proven Century committed a violation of § 1926.1408(a)(2).
CHARACTERIZATION
OF THE VIOLATION
The Secretary characterized
the violation of § 1926.1408(a)(2) as serious. A serious violation is
established when there is “a substantial probability that death or serious
physical harm could result [from a violative condition] . . . 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). Here, one employee died
and another was seriously injured as a result of the crane coming within 20
feet of the energized power lines. The
violation is serious.
PENALTY
DETERMINATION
“In assessing penalties, section 17(j) of the
OSH Act, 29 U.S.C. § 666(j), requires the Commission to give due consideration
to the gravity of the violation and the employer's size, history of violation,
and good faith.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2142 (No.
04-0475, 2007). “Gravity is a principal factor in the penalty determination and
is based on the number of employees exposed, duration of exposure, likelihood
of injury, and precautions taken against injury.” Siemens Energy &
Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005) (citation
omitted).
N. E. Precast, LLC;
& Masonry Servs., Inc, 26 BNA OSHC 2275, 2282 (Nos. 13-1169 and13-1170, 2018).
The Secretary and Century stipulate Century “employs
approximately 500 employees.” (Exh. J-1, p. 6, ¶ C) Century
has a history of violations of OSHA standards (Tr. 113). A written safety and health program is often
grounds for crediting an employer with good faith. In this instance, the relevant work rule is
incorrect and confusing as previously found.
I give no credit for good faith.
The gravity of the violation is high and its severity
outweighs the other factors. "'Gravity, unlike good faith, compliance history
and size, is relevant only to the violation being considered in a case and
therefore is usually of greater significance. The other factors are concerned with the
employer generally and are considered as modifying factors.''' Natkin
& Co. Mech. Contractors, 1 BNA OSHC
1204, 1205 n.3 (No. 401, 1973).” Id.
One employee was killed, one was
seriously injured, and the four other JPGC employees and Mr. Shadwick were
exposed to hazards of electrocution and fire.
The duration of exposure was approximately half an hour (from when the
JPGC employees arrived at the site until the accident occurred). The likelihood of injury was high. Century took no precautions against
injury. Based on these factors, I assess
a penalty of $12, 675.00.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the
findings of fact and conclusions of law in accordance with Fed. R. Civ. P.
52(a).
ORDER
Based on the foregoing
decision, it is hereby ORDERED:
Item 1 of the Citation, alleging a serious
violation of § 1926.1408(a)(2), is AFFIRMED,
and a penalty of $12,675.00 is assessed.
SO
ORDERED. /s/
Date: July 16, 2018 HEATHER A. JOYS
Administrative Law Judge
Atlanta, Georgia
[1] This testimony conflicts with the
parties’ stipulation that Mr. Shadwick arrived at the worksite at approximately
7:00 a.m. (Exh. J-1, p. 8, ¶ BB). The
discrepancy does not affect the outcome of this decision.
[2]
I take
judicial notice sunrise occurred at 7:40 a.m. on October 12, 2016, in
Alpharetta, Georgia, according to the National Oceanic and Atmospheric
Administration. See https://www.esrl.noaa.gov/gmd/grad/solcalc/sunrise.html.
[3] The three subcontractor employee
witnesses testified with the assistance of an interpreter.
[4] At the time of the hearing, Mr.
Pulido owned a new company under a different name (Tr. 225).
[5]
In its brief, Century twice
states Employee #1 could not remember whether his conversation with the Century
construction manager occurred before or after the accident (Century’s brief,
pp. 16, 24). Century bases this
contention on Employee #1’s testimony regarding the timing of the
conversation:
Q.: When was this [conversation]?
Employee #1: Like after the accident happened.
Q.: It was after the accident happened?
Employee #1: Like before, before.
(Tr.
269)
It
was evident at the hearing that Employee #1, who at that point was not using
the interpreter but was testifying in English, his second language, had
initially misspoken, and he quickly corrected himself. This was made even clearer when he was asked
where the rest of the JPGC crew was when the conversation occurred. He responded, “They were already on the
house. .
. The boom [of the crane] was already extended and everything.”(Tr.
269) I find the conversation between
Employee #1 and the Century construction manager occurred before the
accident. I base this finding on the
unequivocal testimony of Employee #1. I
also base this finding on the fact that after the accident, Employee #1 was on
fire, and the casual conversation to which he attested (“[H]e just stopped by
and just asking if everything was okay.
And I just told him yes, you know, everything’s okay.” (Tr. 269)) would
not take place in the real world under these circumstances.
[6] TABLE A—MINIMUM CLEARANCE DISTANCES
|
Voltage |
Minimum clearance distance |
|
up to 50 |
10 (as established by
the utility owner/operator or registered professional engineer who is a
qualified person with respect to electrical power transmission and
distribution). |
Note: The value that follows "to" is
up to and includes that value. For example, over 50 to 200 means up to and
including 200kV.
[7] The only other person identified in the record as being at the Moss Creek Estates the morning of October 12, 2016, is a home inspector meeting with Century construction manager James McGinnis.
[8] I would also find
the Secretary established Century had constructive knowledge of the violative
condition. Mr. Gaddis conceded he was
responsible “for informing superintendents of site-specific safety requirements
and verifying that this information is passed on to subcontractors before
they’re allowed to start work,” and he agreed the presence of overhead power
lines over a construction worksite is a site-specific hazard (Tr. 284). He was aware of the presence of the overhead
power lines crossing Lot 51 (Tr. 290-91).
He was aware the trusses had been delivered to Lot 51 and thus realized
the crane would be arriving soon. Had he been reasonably diligent, he would
have asked Mr. Pulido whether he had scheduled the crane and he would have
stopped by Lot 51 the morning of October 12, 2016.
[9]
Chairman
MacDougall has, on several occasions, most recently in Evergreen
Constr. Co., 26 BNA OSHC 1615, 617,
n. 2 (No. 12-2385, 2017),
“expressed
concerns about whether the Secretary has the authority to cite an employer for
a violation when its own employees are not exposed to the hazard.” I am bound by current Commission precedent on
this issue which holds,
[When] (1) a
contractor that has either created a hazard or controls a hazardous condition
and (2) the only employees having access to the hazard are those of different contractors
engaged in the common undertaking[, w]e consider such a contractor to have a
duty under section 5(a)(2) of the Act to comply fully with the standards.
Anning-Johnson Co., 4
BNA OSHC 1193, 1199 (Nos. 3694 and 4409, 1976); See also McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 n.3
(No. 97-1918, 2000) (“[T]he Commission and the Courts have previously held
general contractors liable under the multi-employer worksite doctrine,
notwithstanding the fact that none of their own employees were exposed and
notwithstanding the fact that the standards under which the general contractors
were cited did not, by their terms, impose a specific duty on the general
contractor.” Citing Universal Constr. Co. v. OSHRC , 182 F.3d 726 (10th Cir.
1999); R.P. Carbone Constr. Co. v. OSHRC,
166 F.3d 815, 819-20 (6th Cir. 1998); Centex-Rooney
Constr. Co., 16 BNA OSHC 2127 (No.
92-0851, 1994); Gil Haugan d/b/a Haugan Constr. Co., 7 BNA OSHC 2004 (No.
76-1512, 1979); Knutson Constr. Co., 4 BNA OSHC 1759 (No. 765, 1976), aff'd,
566 F.2d 596 (8th Cir. 1977).).
[10]
In its brief, Century argues it had a written safety and health program and
engaged Safety Consultant Robert Masterson to coach supervisors and make onsite
visits (Century’s brief, pp. 16-18).
Century’s Safety Manual provides
an incorrect and confusing rule regarding cranes and overhead power lines.
A distance of at least ten feet shall be
maintained between any part of any operating crane, its load or attachments or
any overhead power line. When lines
rated over 50 kV are encountered, minimum clearance between the lines and any
part of the crane or load shall be ten feet plus 0.4 inch for each 1 kV over 50
kV, or twice the length of the line insulator but never less than ten feet.
(Exh. C-21, p. 99).
As CSHO Starks
testified, both the minimum safe distance for power lines when the voltage is
unknown and the equation for determining the minimum safe distance when the
voltage is known in Century’s Safety
Manual are incorrect (Tr. 82-85); see § 1926.1408(a)(2). I find Century's
safety rule addressing the proximity of cranes to overhead power lines is
inadequate and contrary to the requirements of the cited standard.
[11] By its own terms, Sasser limits its holding to situations
in which a single employer hires another employer for a specific service, and
the hiring employer’s employees are exposed to a hazard. “We do not consider an employer’s duty when
its own employees are not exposed to the hazard or when it is engaged in work
at a multi-employer worksite, but limit our concern to the situation here under
review.” Id. at n. 4.