United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457  

SECRETARY OF LABOR,

Complainant,

 

v.

OSHRC DOCKET NO. 13-0777

TOWER MAINTENANCE CORP.,

Respondent.

 

DECISION ON REMAND

  This case is on remand from the Commission for clarification of the Judge’s decision regarding Citation 2, Item 2, characterized as Serious Repeat. This citation item was amended twice prehearing by the Secretary, with the most recent amendment alleging alternative violations of several standards and alternative alleged violation descriptions. The Commission seeks clarification of the Judge’s decision regarding which cited standards under Citation 2, Item 2, the Secretary ultimately alleged in the first instance and which cited standards were alleged in the alternative. The Commission then has ordered that the Judge vacate the cited standards that are found to have been alleged in the alternative for Citation 2, Item 2.

  In accordance with the Commission’s Remand Order, regarding Citation 2, Item 2, I find that the Secretary alleged in the first instance violations of two provisions under the electric power generation, transmission, and distribution standard, 29 C.F.R. §§ 1910.269(a)(2)(i) (training for employees) and 1910.269(a)(2)(ii)(additional training for qualified employees). I base this finding on the Secretary’s motion to amend the complaint and on the Secretary’s post-hearing brief. Further, regarding Citation 2, Item 2, I find that the Secretary alleged, in the alternative, violations of a general personal protective equipment standard, 29 C.F.R. §§ 1910.132(f) (training for employees using personal protective equipment (PPE)), and violations of the general electrical standards found in subpart S, 29 C.F.R. §§ 1910.332(b)(1) (training for employees; electrical standard), and 1910.332(b)(2)(additional training for “unqualified persons;” electrical standard).

  Thus, the Citation 2, Item 2 Serious Repeat violations of standards 29 C.F.R. §§ 1910.269(a)(2)(i) and 1910.269(a)(2)(ii), alleged by the Secretary in the first instance, are Affirmed. As instructed by the Commission,1 the Citation 2, Item 2 Serious Repeat violations of standards 29 C.F.R. §§ 1910.132(f),2 1910.332(b)(1), and 1910.332(b)(2), alleged by the Secretary in the alternative, are Vacated. Tower Maint. Corp., 25 BNA OSHC 2146, 2147 (No. 13-0777, 2016).

Discussion

I find that the Secretary mistakenly reversed the order of the Citation 2, Item 2 allegations, plead primarily and in the alternative, in the amended complaint. The order of the alleged violations, as stated in the Secretary’s motion to amend the complaint and in the order of the alleged violations reiterated in the Secretary’s post hearing brief, reveals that the Secretary pleads primarily to a violation of the training provisions in § 1910.269 the electric power generation, transmission, and distribution standard.

[B]ecause Tower Maintenance was performing work more specifically covered by [§] 1910.269 – namely, maintenance work on a transmission tower that required the use of “qualified employees – and because the language of [§] 1910.269 also encompasses the training requirements of Subpart S, the Secretary cites primarily to a violation of the training requirements in [§] 1910.269.

 

(Sec’y Post-Hr’g Br. at 61). See Tower Maint. Corp., slip op. at pp. 5-6, 8 n.10. This finding of inadvertent error of the order of the alternative pleading on the part of the Secretary for Citation 2, Item 2 in the amended complaint joins the other inadvertent error included in the amended complaint, as noted in the original Decision and Order. See Tower Maint. Corp., slip op. at pp. 61-62 and 61 n.54 (repeat predicate discussion regarding the fall protection violation).3

Consequently, for Citation 2, Item 2, I find that the Secretary alleged in the first instance violations of 29 C.F.R. §§ 1910.269(a)(2)(i) and 1910.269(a)(2)(ii), and in the second instance, violations of 29 C.F.R. §§ 1910.132(f), 1910.332(b)(1), and 1910.332(b)(2).

SUPPLEMENTAL ORDER

 

Accordingly, for the reasons stated in the original Decision and Order, clarified and supplemented by the reasons stated herein, it is Ordered that:

Regarding Item 2 of Citation 2, the alleged Serious Repeat violations of standards 29 C.F.R. §§ 1910.269(a)(2)(i) and 1910.269(a)(2)(ii), both alleged in the first instance, are Affirmed. A repeat violation of standard 29 C.F.R. §§ 1910.269(a)(2)(i) is AFFIRMED. A serious violation of 29 C.F.R. § 1910.269(a)(2)(ii) is AFFIRMED. For this citation item, a total penalty of $14,000 is ASSESSED.

Further, regarding Item 2 of Citation 2, the alleged Serious Repeat violations of standards 29 C.F.R. §§ 1910.132(f), 1910.332(b)(1), and 1910.332(b)(2), all alleged in the alternative, are VACATED.

 

 

 

Dated: June 7, 2017          Carol A. Baumerich

Washington, D.C.           Carol A. Baumerich

Judge, OSHRC


"

 

 

1 “Where, as here, the Secretary makes an alternative allegation, only one of his allegations can prevail, i.e. the alternative allegation is moot if the first provision alleged is found to apply.” Tower Maint. Corp., 25 BNA OSHC 2146, 2147 (No. 13-0777, 2016).

2 As stated in the original Decision and Order, I also find that standard 29 C.F.R. § 1910.132(f) does not apply at all in this case, because standard 29 C.F.R. § 1910.269(a)(2)(i) covers the requirement of fall protection training as it applies to “unqualified” persons as well as “qualified.” See Tower Maint. Corp., slip op. at p. 66 n.57.

3 If, assuming arguendo, the order of the Citation 2, Item 2 allegations, plead primarily and in the alternative, as stated in the Secretary’s post hearing brief, was found to be a further amendment of this citation item, I would find this further amendment appropriate under Federal Rule of Civil Procedure 15 (“Amended and Supplemental Pleadings”). Morrison-Knudsen Co. / Yonkers Contracting Co., 16 BNA OSHC 1105, 1112-1114 (No. 88-572, 1993); Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973). All of the standards plead in the amended complaint for Citation 2 Item 2 were known to Respondent prehearing. Further, Respondent would not be prejudiced by such further clarifying amendment. Respondent had the opportunity and did fully litigate all of the factual and legal issues raised by all of the alleged violations in the amended complaint for Citation 2, Item 2.