United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457

Appearances:  

Seema Nanda, Solicitor

Jeffrey S. Rogoff, Regional Solicitor

Nicole Lancia, Esq.

Office of the Regional Solicitor

United States Department of Labor

201 Varick Street, Rm. 983

New York, NY 10014

For the Complainant

Aaron R. Gelb, Esq.

Conn Maciel Carey LLP

53 W. Jackson Blvd., Ste. 1328

Chicago, IL 60604

For the Respondent

Before:   Keith E. Bell, Administrative Law Judge

DECISION AND ORDER

  This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 451 (the Act). On October 13, 2021, the Occupational Safety and Health Administration (OSHA) conducted an inspection of a worksite located at 1199 East 53rd Street, Brooklyn, N.Y. (worksite). As a result, on February 10, 2022, OSHA issued a Citation and Notification of Penalty (Citation) to Link General Contracting Corporation (Respondent), that alleged two violations of the Act. Citation 1 includes two (2) items and is classified as “serious”. This case is a simplified proceeding under the Occupational Safety and Health Review Commission Rules of Procedure Rule 202. 29 C.F.R. § 2200.202. Accordingly, no complaint or answer was filed. Respondent initially asserted the unpreventable employee misconduct (UEM) defense during the pre-hearing conference held pursuant to Rule 207 of the Commission Rules of Procedure. 29 C.F.R. § 2200.207(b). By consent of the parties, a virtual hearing was held on August 30th through 31st, 2022. In that hearing, Counsel for Respondent withdrew the UEM defense. Tr. 180. For the reasons that follow, Citation 1, Items 1and 2 are AFFIRMED.

Jurisdiction

  The evidence supports a finding that the Act applies, and the Commission has jurisdiction over this proceeding pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c). At the hearing, the parties entered the following stipulations into the record: (1) Respondent is and at all times mentioned hereinafter was engaged in construction work1; Respondent is an employer engaged in business affecting commerce within the meaning of §§ 3(3) and 3(5) of the Act; and Respondent is an employer within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). Tr. 9-10.

Stipulated Facts2

Tr. 7-9.

Background

  Respondent, Link General Contracting Corp. is a contractor doing business in New York and specializing in masonry and façade work. The owner of record is Mr. Lou Kaziu. CX-1. The worksite consists of a series of buildings in the same complex with various types of work being done. Tr. 177.

OSHA Inspection

  OSHA Compliance Officer (CO) Mahendra Taramal works for the Manhattan Area Office. Tr. 17. He conducted an inspection of Respondent’s worksite on October 13, 2021, based on a random assignment from a local emphasis program bargaining list. Tr. 20. CO Taramal began his inspection at approximately 12:30 p.m. and it lasted for about an hour. After he observed employees on the top-tier of a scaffold who were performing construction work, he initiated the inspection. The employees were doing façade repair on the balcony areas and front face of the building. Tr. 21.

  Upon arrival at the worksite, CO Taramal made observations of employees working, took a picture, and made contact with Jorge Chavarria who identified himself as the site foreman. Together, they walked up to the top-tier of the scaffold where CO Taramal conducted a visual walkaround inspection, took more pictures, and interviewed employees3 present on site. Tr. 22.

  Pursuant to the parties’ stipulation of facts: (1) the employees used the working platforms of a scaffold to perform façade repair work on the fifth and sixth floor balconies; and (2) the employees, while working from the scaffold, wore fall protection harnesses with lanyards that were not connected to anchor points. Tr. 8.

Scaffold

   The worksite had a support scaffold with a “bicycle” platform to allow access to facilitate the erection of cast-in-place concrete forms around the balconies. Tr. 162. A bicycle platform is part of a scaffold included by the manufacturer to accommodate employees and materials. Tr. 29.

The scaffold also had a walkthrough frame attached and stairs to allow access to the main decks. Tr. 163.

Discussion

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 employer either knew or could have known with the exercise of reasonable diligence of the violative condition. JPC Grp., Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). A preponderance of the evidence is “that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by a proponent are more probably true than false.” Astra Pharma. Prods., 9 BNA OSHC 2126, 2131, n. 17 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

Alleged Violation of 29 C.F.R. § 1926.451(e)(1)

  Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.451(e) (1) which states:

Access: When scaffold platforms are more than 2 feet (0.6 m) above or below a point of access, portable ladders, hook on ladders, attachable ladders, stair towers (scaffold stairways/towers), stairway-type ladders (such as ladder stands), ramps, walkways, integral prefabricated scaffold access, or direct access from another scaffold, structure, personnel hoist, or similar surface shall be used. Crossbraces shall not be used as a means of access.

Standard Applies

As an initial matter, the parties stipulated that the work being conducted at the work site by Respondent’s employees on October 13, 2022, was covered by 29 C.F.R. § 1926.451. Citation 1, Item1 alleges that on or about October 13, 2021, employees climbed the crossbraces and scaffold frames to access the working platforms. CX-1. The cited standard applies.

Employer Failed to Comply

  CO Taramal testified that he observed an employee move from the top level of the scaffold platform down to the bicycle platform below by placing his right foot on the form work of the sixth-floor balcony and his left foot on the diagonal metal cross brace. Tr. 30-31, GX-3. CO Taramal further stated that he estimated a distance of more than 2 feet between the top-tier of the scaffold and the bicycle platform. Tr. 32. More specifically, CO Taramal estimated the distance between the two platforms to be approximately three (3) feet. Although CO Taramal did not measure the distance between the platforms, he made a visual observation and based his estimation on: (1) the height of an employee who was standing on the bicycle platform; and (2) the number of bricks he counted (12-14) in the building’s brick façade and determined that each brick was approximately 2 ½” top to bottom (thick). CO Taramal testified that he usually takes measurements when safe to do so; however, in this instance, he relied on visual observations and things relative to his own height. Tr. 95. The Commission acknowledges that estimates can be reliable evidence. A. L. Baumgartner Constr., 16 BNA OSHC 1995, 2001 (No. 92-1022, 1994) (A witness’ estimations of a dimension based on observations only, and even based on an observation from a distance away are admissible and can be dispositive in the absence of rebuttal). Here, Respondent produced two witnesses whose testimony contradicted CO Taramal’s estimation of the distance between the two platforms. Robert DeMarco, a safety consultant who worked for Respondent, testified that the distance between the top-tier of the scaffold and the bicycle platform was under 24”. Tr. 178. He based his determination of the distance on: (1) measurements he asked to be taken sometime after the inspection; and (2) his own visual observations of the bricks. Tr. 192-93. He testified that the bricks were 2x6. Israel Yee4, an employee of Respondent, measured the distance between the two platforms and found it to be 2 feet. Tr. 231-32. To resolve the conflict in testimony regarding the distance between the top-tier of the scaffold and the bicycle platform, the Court reviewed the photograph of the employee standing on the bicycle platform with his hand resting on the top-tier of the scaffold. GX-6. The top-tier of the scaffold platform is above the employee’s waistline. Additionally, the Court finds that there are at least 12 bricks between the two platforms.5 Relying on Mr. DeMarco’s testimony that the bricks only measured 2” (thick) would make the distance between the platforms exactly 24inches or 2 feet. However, the photographs show that there is mortar between the bricks that would add to the height of the bricks between the two platforms and thereby increase the distance. CO Taramal testified that he did not include the mortar in his measurements despite the fact that it would have added to the height. Tr. 240. The Court finds that the weight of the evidence supports CO Taramal’s estimation of the distance between the top-tier of the scaffold and the bicycle platform.

  CO Taramal testified that he did not see employees using any other access points to traverse between the top-tier of the scaffold and the bicycle platform. Tr. 33. Additionally, the CO did not observe any portable ladders on site. Tr. 32. During his interview with the site foreman, Jorge Chavarria, CO Taramal learned that the work process he observed was normal. Tr. 33. The Secretary has established that Respondent failed to comply with the cited standard.

Employee Exposure

  The Commission has held that, to establish employee exposure, the Secretary must prove that it was reasonably predictable, either by inadvertence or otherwise, that employees have been, are, or will be in the zone of danger. A.E. Staley Mfr. Co., 19 BNA OSHC 1207 (No. 91-0637, 2000) (consolidated) aff'd, 295 F.3d 1341 (D.C. Cir. 2002). Employees may come within the zone of danger “while in the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 812 (3d Cir. 1985) (“ ‘access,’ not exposure to danger is the proper test”). The CO’s testimony that he observed an employee moving from the top-tier of the scaffold by stepping on the cross brace demonstrate employee exposure. The Court finds that the photographic evidence supports the CO’s testimony. GX-3, 4. Employee exposure is established.

Employer Knowledge

  To establish constructive knowledge, the Secretary must show that the employer, with the exercise of reasonable diligence, could have known of a hazardous condition. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). It has been held that an employer has a duty “to take reasonably diligent measures to inspect its worksite and discover hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard.” Texas A.C.A., Inc., 17 BNA OSHC 1048, 1051 (No. 91-3467, 1995) (emphasis in original). The Commission has held that an employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Constr. Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994). “An employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer.” Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537 (No. 86-630, 1992) (consolidated). Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (an “employee who is empowered to direct that corrective measures be taken is a supervisory employee;”; formal title of employee is not controlling, but rather substance of employee's duties). In this case, there is conflicting testimony over the identity of the site foreman. CO Taramal testified that, upon arrival, he made contact with Jorge Chavarria who identified himself as the site foreman and accompanied him during the walkaround inspection. Tr. 22. To the contrary, Respondent’s witness, Israel Yee, testified that he was the site foreman who was also present the day of the inspection. Tr. 224. Owner, Lou Kaziu told CO Taramal that he left Jorge Chavarria in charge. Tr. 93. The weight of the evidence supports a finding that Jorge Chavarria was the foreman/person in charge of the worksite on the day of the inspection. However, even if the Court found Mr. Yee to be the foreman, the testimony reflects that both were present for the inspection.

Here, CO Taramal observed the violative condition during his walkaround inspection because it was in plain sight. With an exercise of reasonable diligence, Foreman Chavarria (or Yee) could have known of the hazardous condition. The Commission has held that factors indicative of reasonable diligence include adequate supervision of employees, and the formulation and implementation of adequate training programs and work rules to ensure that work is safe. Pride Oil-Well Svc., 15 BNA OSHC 1809, 1815 (No. 87-692, 1992). (emphasis added) CO Taramal testified that he sent a letter to request information, to include a copy of Respondent’s safety and health program, from Respondent/Owner, Lou Kaziu. RX-1A. However, he did not receive a response. During the hearing, Respondent did not offer a copy of its safety program. RX-1, pg. 009. The Court finds the absence of evidence that Respondent had a safety program to be indicative that there was a lack of reasonable diligence. Employer knowledge of the hazardous condition cited is established.

The Secretary has proven, by a preponderance of the evidence, that Respondent violated 29 C.F.R. § 1926.451(e)(1).

Serious Classification

To prove a violation was “serious” under section 17(d) of the Act, 29 U.S.C. § 666(d), the Secretary must show there was a substantial probability that death or serious physical harm could have resulted from the cited condition and that the employer knew or should have known of the condition; the likelihood of an accident occurring is not required. Spancrete Ne., Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991). CO Taramal testified that he issued Citation 1, Item 1 because the work process he observed exposed employees to fall hazards. Tr. 62. Based on his experience, CO Taramal testified that a fall from the top-tier of the scaffold to the shed below would be a distance of approximately five (5) stories or 50 feet. Tr. 124. Robert DeMarco testified that the distance from the top of the scaffold to the top of the sidewalk shed below was 40 feet. The Court finds that 40 or 50 feet are both a considerable distance to fall. According to CO Taramal, a fall from the top of the scaffold could result in death. Tr. 65. The Secretary has met his burden of proof to establish that the violation alleged in Citation 1, Item 1 is properly classified as serious.

Alleged Violation of 29 C.F.R. § 1926.451(g)(1)(vii)6

  Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.451(g)(1)(vii) which states:

For all scaffolds not otherwise specified in paragraphs (g)(1)(i) through (g)(1)(vi) of this section, each employee shall be protected by the use of personal fall arrest systems or guardrail systems meeting the requirements of paragraph (g)(4) of this section.

  29 C.F.R. 1926.451(g)(1) addresses fall protection and provides:

Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from falling to that lower level. Paragraphs (g)(1) (i) through (vii) of this section establish the types of fall protection to be provided to the employees on each type of scaffold.

Standard Applies

  Citation 1, Item 2 alleges that on or about October 13, 2021, employees worked on a scaffold that was not equipped with guardrails and employees were exposed to a fall of 12 feet. CX-1. The cited standard applies.

Employer Failed to Comply

  CO Taramal testified that he observed a missing guardrail on the left-side of the top-tier of the scaffold that exposed employees to a fall of approximately 50 feet/five stories above the top of the sidewalk shed. Tr. 39, 42, 135; GX-3, 4. Additionally, he testified that there was a gap between the bicycle platform and the balcony that also exposed employees to a fall. Tr. 42; GX-12. CO Taramal further testified that the gap between the 5th floor balcony railing and the bicycle platform was approximately 1 to 1 ½ feet. Tr. 48. Again, he did not take actual measurements but made estimates based on his observations. Tr. 43. According to CO Taramal, a fall between the gap is a distance of approximately 12 feet and could occur based on employees’ maneuvers back and forth between the bicycle platform and the balcony. Tr. 53. CO Taramal observed that employees traversed between the bicycle platform and the balcony by holding on to the edge of the bicycle platform and the rail of the balcony instead of relying on a fall protection system using a harness and lanyard. Tr. 54. Notably, the employees working from the scaffold wore fall protection harnesses with lanyards that were not connected to anchor points. Tr. 8. The correct use of the harness and lanyard to protect an employee from fall hazards on this worksite required the user to attach it to an anchor point on the building or another system. Tr. 46. CO Taramal did not observe any anchor points and, according to Forman Chavarria, there were no anchor points. Tr. 45, 50.

  Respondent argues that the exception to this standard, 29 C.F.R. § 1926.451(b)(3), applies and the Secretary has not adduced evidence to establish non-compliance with this exception. Resp’t Br. 7-8. 29 C.F.R. § 1926.451(b)(3) provides:

Except as provided in paragraphs (b)(3) (i) and (ii) of this section, the front edge of all platforms shall not be more than 14 inches (36 cm) from the face of the work, unless guardrail systems are erected along the front edge and/or personal fall arrest systems are used in accordance with paragraph (g) of this section to protect employees from falling.

The Secretary acknowledges that, if applicable, § 1926.451(b)(3) is an exception to the cited standard requiring fall protection when employees are exposed to a fall of greater than 10 feet. Sec’y Br. 23.7 Also, the Secretary correctly points out that Respondent has the burden of proof when it asserts an exception. See Triumph Constr. Corp. v. Sec’y of Labor, 885 F.3d 95, 98 (2d Cir. 2018) (Holding that the ALJ properly placed the burden of proof on respondent to demonstrate that its site fell within an exception to cited standard.) Here, Respondent offers no evidence that the balcony edge was the “face of the work” of this construction project at the time of the inspection, neither does it offer its own measurement of the distance between the bicycle platform and the balcony edge. Respondent’s assertion that § 1926.451(b)(3) applies is rejected. The Secretary has established that Respondent failed to comply with the cited standard.

Employee Exposure

  CO Taramal testified that he observed two employees standing on the bicycle platform. Tr. 26. He also testified that employees accessed the unguarded area at the top of the scaffold as part of their normal work process. Tr. 64. CO Taramal observed an employee going from the top-tier of the scaffold to the bicycle platform and over to the balcony. Tr. 118. The Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible. Fabricated Metal Prods., Inc. 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997); Phoenix Roofing, 17 BNA OSHC 1076,1079 (No. 90-2148, 1995) aff’d, 79 F.3d 1146 (5th Cir. 1996) ; Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “‘reasonably predictable’ that an employee would come into contact with the unguarded belt and pulley either while attempting to reposition the fan, or inadvertently while passing nearby”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001). Based on CO’s observations (and Foreman Chavarria’s statement that what CO Taramal observed was the normal work process) of employees working on and accessing the top-tier of the scaffold where the guardrail was missing and moving back and forth between the fifth-floor balcony and the bicycle platform, it was reasonably predictable that employees would be in the zone of danger at this worksite. Employee exposure is established.

Employer Knowledge

     CO Taramal testified, and the parties stipulated, that the employees were wearing fall protection harnesses with lanyards. He further testified that the harnesses were provided by Respondent. Tr. 66. The Court finds that Respondent’s provision of harnesses and lanyards reflects an awareness of the fall hazards present on this worksite. Additionally, the Court finds that, as with the hazardous condition in Citation 1, Item 1, the condition cited here was plainly visible to CO Taramal and therefore visible to or discoverable by Respondent’s on-site supervisor (Chavarria or Yee) with an exercise of reasonable diligence. Employer knowledge is established.

  The Secretary has proven, by a preponderance of the evidence, that Respondent violated 29 C.F.R. §1926.451(g)(1)(vii).

Serious Characterization

  CO Taramal testified that a fall by an employee traversing the gap between the bicycle platform and the fifth-floor balcony could have resulted in broken bones, permanent disability, or death. Tr. 65.   The Secretary’s characterization of this violation as “serious” is established.

Penalty Determination

  The Commission, as the final arbiter of penalties, must give due consideration to the gravity of the violation and to the employer's size, history and good faith. J.A. Jones Constr. Co., 15 BNA OSHC at 2213-14. These factors are not necessarily accorded equal weight, and gravity is generally the most important factor. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a violation depends upon such matters as the number of employees exposed, duration of exposure, precautions taken against injury, and the likelihood that an injury would result. J.A. Jones, 15 BNA OSHC at 2213-14. Respondent does not dispute the proposed penalties.

  Regarding the proposed penalties, CO Taramal testified that severity is rated “high” based on the injuries that could have resulted. Probability is rated “greater” because the exposure was part of the normal work process that the CO observed for an hour before he began his walkaround. Tr. 68. Gravity is rated “high”. Tr. 69. These classifications apply to both violations. A 70% discount was given on both items for the size of this employer which was determined to be “small”. The size determination was made from speaking to Mr. Lou Kaziu who is the owner of Link General. There was no “good faith” reduction given due to the high severity, greater probability, and high gravity. Tr. 74-75. No reduction was given for prior history because this employer had no inspection within the previous 5 years. Tr. 75. The evidence supports a finding that the penalties, as proposed, are appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  The foregoing constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

  Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

/s/ Keith E. Bell

                                                                        Keith E. Bell

                                                                        Judge, OSRC

Dated: January 17, 2023

Washington, D.C.

1 See Clarence M. Jones d/b/a C. Jones Co., 11 BNA OSHC 1529, 1530 (No. 77-3676, 1983) (holding that there is an interstate market in construction materials and services and therefore construction work affects interstate commerce).

2 At the start of the hearing, the parties stipulated certain facts which the undersigned admitted into the record.

3 There were three employees besides Foreman Jorge Chavarria on site and all preferred to speak Spanish. Tr. 50. CO Taramal was able to communicate with them with the assistance of CO Santiago who speaks English and Spanish and participated in the inspection in the role of an interpreter. Tr. 51, 249.

4 Mr. Yee testified that he was present at the worksite on the day of the inspection and spoke to COs Taramal and Santiago. Tr. 224. He also testified that he was the foreman. Tr. 224. On rebuttal, CO Taramal testified that he did not recall seeing or speaking to Mr. Yee neither did he remember seeing Mr. Yee speak to CO Santiago. Tr. 234-35. He also testified that Mr. Jorge Chavarria identified himself as the foreman on site. Tr. 235.

5 CO Taramal testified that he counted 13 bricks between the top-tier of the scaffold and the bicycle platform. Tr. 241.

6 On cross-examination, CO Taramal agreed with Respondent’s Counsel that the abatement measure for Citation 1. Item 1 would also abate item 2. Tr. 149. The CO’s concurrence that the abatement measure would work for both citation items raises a question regarding the duplicative nature of the two violations cited. Respondent also makes this argument in its post-hearing brief. Resp’t Br. 14-15. In North Eastern Precast, LLC, the Commission reaffirmed its own precedent that violations are duplicative where the abatement of one violation necessarily results in the abatement of the other or requires the same abatement conduct. Ne. Precast, 26 BNA OSHC 2275, 2279 (No. 13-1169, 2018) (consolidated) aff’d, 733 F. App’x 70 (2d Cir. 2019) (Unpublished). Abatement means action by an employer to comply with a cited standard or regulation or to eliminate a recognized hazard identified by OSHA during an inspection. 29 C.F.R. § 1903.19(b)(1). Here, each of the cited standards sets forth the acceptable means of compliance which do not overlap. 29 C.F.R. § 1926.451(e)(1) prescribes ladders, ramps, stairways, walkways etc. as acceptable means of access while 29 C.F.R. § 1926.451(g)(1)(vii) requires the use of personal fall arrest systems or guardrails. The Court finds that the ladders used to abate the violation cited in Citation 1, Item 1 would not abate the violation cited in Citation 1, Item 2 based on the language of the cited standards and the work processes observed. Accordingly, Respondent’s argument that Citation 1, Item 2 is duplicative and should be vacated is rejected.

.

7 According to the Secretary, OSHA issued an interpretive letter on December 11, 2001, that sets forth the applicability of this exception.