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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1924 Building - Room
2R90, 100 Alabama Street, S.W.
Atlanta, Georgia 30303-3104
THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW
Secretary of Labor, |
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Complainant |
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v. |
OSHRC Docket No.: 17-0190 |
Shelly & Sands, Inc., |
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Respondent. |
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Appearances:
Adam Lubow,
Esq., U.S. Department of Labor, Office of the Solicitor, Cleveland, Ohio
For the
Secretary
Corey
Crognale, Esq., Ice Miller, LLP
For the Respondent
BEFORE: Administrative
Law Judge Sharon D. Calhoun
DECISION AND ORDER
Shelly & Sands, Inc., (S&S)
contests a two-item Citation and Notification of Penalty (Citation) issued
November 2, 2016, by the Secretary. The
Secretary issued the Citation as a result of an inspection by the Occupational
Safety and Health Administration (OSHA) on August 9, 2016, of a bridge worksite
near Cambridge, Ohio. A compliance
safety and health officer (CSHO) observed a number of S&S employees engaged
in work activities he believed exposed them to fall hazards.
Item 1 of the Citation alleges a
repeat violation of 29 C.F.R. § 1926.453(b)(2)(iv) for permitting two employees
to climb over the guardrails of an elevated aerial lift. The Secretary proposes a penalty of
$68,591.00 for this item. Item 2 alleges
a repeat violation of 29 C.F.R. § 1926.501(b)(1) for permitting, in three
instances, employees to stand or walk on walking/working surfaces with
unprotected edges six feet or more above a lower level, without the use of fall
protection. The Secretary proposes a
penalty of $68,591.00 for this item.
S&S timely contested the
Citation. The Court held a hearing in
this matter on October 25 and 26, 2017, in Columbus, Ohio. The parties filed briefs on December 20, 2017.
S&S argues any violation of the
standards cited in Items 1 and 2 resulted from unpreventable employee
misconduct. S&S also argues the
Secretary failed to prove noncompliance with the terms of the standard cited in
Instance (b) of Item 2.
For the reasons discussed below, the
Court VACATES Item 1 and Instances
(a) and (b) of Item 2. The Court AFFIRMS Instance (c) of Item 2 and
assesses a penalty of $25,000.00 for that instance.
JURISDICTION AND COVERAGE
S&S timely contested the Citation
and Notification of Penalty on November 30, 2016. The parties stipulate the Commission has
jurisdiction over this action and S&S is a covered business under the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act) (Tr.
19). Based on the stipulations and the record evidence, the Court finds the
Commission has jurisdiction over this proceeding under § 10(c) of the Act and
S&S is a covered employer under § 3(5) of the Act.
STIPULATED FACTS
The parties stipulated the following:
1. On
August 9, 2016, Respondent was performing construction work at a worksite in
Cambridge, OH.
2.
The worksite was a bridge where CR-35 crossed over I-77.
3. The CR-35 bridge ran southwest to northeast,
while I-77 ran north-south.
4. Respondent was previously cited for a violation of 29 C.F.R.
1926.453(b)(2)(iv) in OSHA inspection number 1014739, citation 1, item 1, which
was affirmed as a final order on February 22, 2015.
5. Respondent was previously cited for a
violation of 29 C.F.R. 1926.501(b)(1) in OSHA inspection number 1014739,
citation 1, item 3, which was affirmed as a final order on February 22, 2015.
6. On August 9, 2016, CSHO Schnipke
commenced a program planned inspection initiated by a CSHO referral based on a
local emphasis program for fall hazards in construction.
(Exh. J-1, Attachment C—Stipulated
Facts)
The parties presented an additional stipulation at the
start of the hearing (Tr. 19-20). It
states,
On August 8, 2016, CSHO
Matthew Marcinko was driving northbound on I-77 and
passed under the CR-35 worksite. He
believed he saw a fall protection violation, but, admittedly, was travelling at
highway speed. Based on this belief,
CSHO Marcinko attempted to pull over and initiate an
inspection. He was unable to safety do
so. He then proceeded to the Columbus
Area OSHA office, and informed a supervisor of his purported observations. The supervisors sent CSHO Dustin Schnipke to the site the next day to initiate the
inspection. CSHO Marcinko
took no photos or videos of the CR-35 worksite.
(Exh. J-2)
CSHO SCHNIPKE’S INSPECTION
As
stipulated in Exhibit J-2, on August 8, 2016, after CSHO Marcinko
reported to his supervisor his perception that the S&S employees were not
using fall protection at the County Road 35 (CR-35) bridge, the supervisor
assigned CSHO Dustin Schnipke to inspect the
worksite. CSHO Schnipke
met with CSHO Marcinko to confirm the location of the
worksite (Exh. C-14; Tr. 33-35).
On August 9,
2016, CSHO Schnipke arrived at the worksite at
approximately 11:45 a.m. (Tr. 37). At
the hearing, he explained his approach to the worksite.
Once I found the job site, I actually rode
up and down the road -- up and down [Interstate] 77 and side roads to find a
good location where I could pull over and view the bridge. … I needed to see a fall hazard prior to
opening the inspection. … If I didn't
see a fall hazard, I would have not opened an inspection and possibly, I have
done in the past sometimes, just went up to the employees there and just stated
that someone did report to us that someone was seen exposed to a fall hazard
and review the fall protection requirements with them.
(Tr. 36)
CSHO Schnipke observed the bridge construction project was in
its early stages. S&S had removed
the road bed on the west side of the bridge and had installed a horizontal
lifeline. S&S was in the process of removing the CR-35 road bed from the
east end of the bridge and was installing a horizontal lifeline on that
side. The horizontal lifeline consisted
of stanchions attached to each of the bridge’s four I-beams with a wire rope
running through loops at the top of the stanchions (Tr. 38). Each S&S employee wore a harness with a
single lanyard attached, which he could clip to the completed lifeline with a
carabiner to provide fall protection (Tr. 53).
S&S had installed “false work” underneath the bridge,
which CSHO Schnipke explained “is basically plywood
that is installed beneath the bridge so when … the deck of the bridge is being
removed, debris does not fall into the road or the highway down below, down to
the traffic.” (Tr. 39) The false work
served a secondary function on the C-35 bridge worksite. “Also, on this project, the false work was
used as, employees were observed using it as a walking working surface as
well.” (Tr. 39)
CSHO Schnipke took photographs from his initial vantage point,
but did not observe any safety violations (Tr. 42). “Next, I actually drove, tried to find
another -- a better location I could - I could sit and I could view the bridge.
And then it appeared that work stopped or halted for some time, so I thought
that they went to lunch, the workers went to lunch, so I went to lunch.” (Tr.
42-43) After returning from lunch, CSHO Schnipke “went to another road on the east side but north
of the bridge that was a better vantage point to clearly observe activities on
the bridge.” (Tr. 43) While situated at
the new location, CSHO Schnipke observed two S&S
employees exit an elevated aerial lift by climbing over the lift’s guardrails
(Tr. 45-46). He photographed the
employees as they climbed over the guardrails (Exh.
C-13, pp. 17-20; Tr. 45-46). He then
watched as the two employees stood on one of the bridge’s I-beams and installed
lifeline stanchions and wires (Tr. 53).
They were not using fall protection while standing on the I-beam (Tr.
47-48).
Having observed what he believed
were safety violations, CSHO Schnipke drove to the west
side of the bridge and took additional photographs. He observed employees standing on the false
work without using fall protection (Tr. 59-60).
He then approached the employees on the bridge. They did not notice CSHO Schnipke
so, he stated, “I hollered at them to get their attention and said I was with
OSHA.” (Tr. 54) He asked one of the
employees to contact the person in charge.
The employee called foreman Sye Thompson, who
was sitting in a truck parked below the bridge on the shoulder of the northbound
lane of I-77, doing paperwork (Tr. 57-58).
When Mr. Thompson arrived on the worksite, he ordered the S&S
employees off the bridge. As they were
exiting the bridge, they unclipped their carabiners from the lifeline
approximately 9 feet before the end of the bridge (Tr. 91).
CSHO Schnipke questioned Mr. Thompson for approximately 10
minutes, and then Mr. Thompson stated he needed to call the safety director for
S&S (Tr. 68-71). CSHO Schnipke took statements from several S&S employees at
the worksite (Tr. 73). Based on his
recommendation, the Secretary issued the Citation and Notification of Penalty
in this case to S&S on November 2, 2016.[1]
THE CITATION
The Secretary’s Burden of Proof
“An employer is liable
for violating an OSHA safety standard if the Secretary of Labor can show the
following by a preponderance of the evidence: (1) the standard applies to the
cited conditions, (2) the requirements of the standard were not met, (3)
employees had access to the hazardous condition, and (4) the employer knew or
should have known of the hazardous condition with the exercise of reasonable
diligence.” R.P. Carbone Const. Co. v.
Occupational Safety & Health Review Comm'n, 166 F.3d 815, 818 (6th Cir.
1998).
Item 1: Alleged Repeat Violation of § 1926.453(b)(2(iv)
Item 1 of
the Citation alleges,
On or about August 9, 2016, at
the bridge construction site, employees climbed over the guardrails and out of
an elevated aerial lift to gain access to bridge beams while installing
components of horizontal lifeline systems, thereby exposing employees to an
approximately 20 foot fall hazard.
Section
1926.453(b)(2)(iv) provides:
Employees
shall always stand firmly on the floor of the basket, and shall not sit or
climb on the edge of the basket or use planks, ladders, or other devices for a
work position.
S&S does not dispute its
employees violated this standard.
S&S asserts the two employees who climbed over the guardrails of the
elevated aerial lift were engaged in unpreventable employee misconduct when they
did so.
(1)
Applicability of the Cited Standard
Section
1926.450(a), the definition section of Subpart
L--Scaffolds, provides: “The criteria for aerial lifts are set out
exclusively in § 1926.453.” It is undisputed S&S’s employees were operating
an aerial lift at the worksite. Section 1926.453(b)(2)(iv) applies to the cited
condition.
(2) Terms of § 1926.453(b)(2)(iv) Were Violated
CSHO Schnipke observed Employee #1 and Employee #2 exit the
aerial lift in which they were riding by climbing over the guardrails of the
lift onto the bridge deck, approximately 20 feet above the highway (Tr.
45-49). He took photographs of the
employees as they climbed over the guardrails (Exh.
C-13, pp. 17-20). S&S admitted its
employees “climbed over the guardrails and out of an elevated aerial lift to
gain access to bridge beams while installing components of horizontal lifeline
systems.” (Exh. C-18, p.2)
The
Secretary has established S&S failed to comply with the terms of the cited
standard.
(3) Employees Had Access to the Violative Condition
S&S admits Employees #1 and #2
were “exposed to an approximately 20 foot fall hazard.” (Exh.
C-18, p. 2) The Secretary has established the employees had access to the
violative condition.
(4) Employer Knowledge
Actual Knowledge
In the Sixth
Circuit, in which this case arose, a supervisor’s knowledge of a safety or
health violation may be imputed to the employer. “The knowledge of a supervisor or foreman, depending on the
structure of the company, can be imputed to the employer. See Danis–Shook Joint Venture XXV, 319 F.3d at 812 (observing that ‘the knowledge
of a supervisor may be imputed to the employer’ and ascribing the
foreman's knowledge of his own failure to wear protective gear to the defendant
company)[.]” Mountain States
Contractors, LLC v. Perez, 825 F.3d 274,
283–84 (6th Cir. 2016).
Here, Sye
Thompson, S&S’s foreman, was in his truck parked on the shoulder of the
highway running underneath the bridge at the time of the OSHA inspection. Nevertheless, the Secretary argues, Mr.
Thompson had actual knowledge of the violative conditions: “Thompson initially parked his Ford F-250
truck in the northbound lane of I-77. … As the day proceeded, he moved the
truck to the shoulder of I-77. .. When CSHO Schnipke
first arrived on the scene, [an S&S employee] pointed to Thompson sitting
in the truck. … From this vantage point, where he was at least twice during the
day, Thompson could see the activity on the bridge and would have observed the
cited violations in plain view.” (Secretary’s brief, p. 12) (citations to the
transcript omitted)
Mr. Thompson testified he was in charge of another worksite
approximately 5 miles away from the CR-35 bridge worksite. He spent part of his morning at that
worksite. He was also responsible for traffic
protection of vehicles passing under the bridge worksite. He coordinated with law enforcement personnel
and periodically cleared fallen debris from the highway. At other times, Mr. Thompson sat in his truck
and completed paper work (Tr. 242-43, 282).
He stated that when he was in his truck in the afternoon, at the time CSHO
Schnipke had an employee summon him to the bridge, he
could not see the work activity taking place on the bridge. “I could see that top of that hoe, I could
see the operator, but I couldn’t see what these—I mean, you might be able to
see the top of a hard hat, but not where I was.” (Tr. 283)
CSHO Schnipke did not view the bridge
from the vantage of Mr. Thompson’s truck, and conceded he had no evidence Mr.
Thompson had actual knowledge of the violative conduct (Tr. 121-22). The Court credits Mr. Thompson’s testimony he
could not see what the S&S employees were doing from the location of his
truck at the time of the OSHA inspection.
The Secretary also relies on written statements of two employees
taken by CSHO Schnipke at the time of the inspection
to establish actual knowledge. Employee #1 stated, “Sye
is my supervisor. He was around watching
us.” (Exh. C-20) Employee #4 stated, “Sye lifted up brackets for us[,]”
meaning Mr. Thompson used a forklift operated from a cab staged below the
bridge to raise the brackets to the bridge level (Exh.
C-22).[2] Neither of these statements proves Mr.
Thompson had actual knowledge of the violative conduct. Regardless of whether Mr. Thompson was
“around watching” the employees earlier in the day or operated a forklift at
some point to lift brackets to the bridge, it is undisputed that at the time
CSHO Schnipke observed the cited violative conduct,
the foreman was sitting in his truck and could not see what the members of his
crew were doing.
The Secretary has not established Mr. Thompson could have seen the
employees climb over the guardrails of the elevated aerial lift from where he
sat. He has failed to prove Mr. Thompson
had actual knowledge of the violative conduct.
Constructive Knowledge
The
Secretary also contends S&S had constructive knowledge of the violative
conduct, because Mr. Thompson should have known of the hazard with the exercise
of reasonable diligence. “In assessing
reasonable diligence, the Commission considers several factors, including an
employer’s obligations to implement adequate work rules and training programs,
adequately supervise employees, anticipate hazards, and take measures to
prevent violations from occurring. See [Burford’s Tree, Inc., 22 BNA OSHC 1948,
1950 (No. 07-1899, 2010), aff’d, 413
F. App’x 222 (11th Cir. 2011) (unpublished).] (citing Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1501
(No. 98-1192, 2001), aff’d, 319 F.3d
805 (6th Cir. 2003)).” S. J. Louis Construction, 25 BNA OSHC
1892, 1894 (No. 12-1045, 2016). The
Court finds, at the time of the OSHA inspection, S&S had implemented
adequate work rules and a training program, adequately supervised employees,
anticipated hazards, and took measures to prevent violations from
occurring. These factors are analyzed in
detail in the following section addressing S&S’s unpreventable employee
defense. An additional factor in this
instance is the duration of the violative conduct.
Mr. Thompson inspected the bridge
worksite the morning of August 9, 2016 (Tr. 255). After that, he cleared fallen
debris from the highway and went to check on another worksite. Upon his return to the vicinity of the bridge
worksite, he sat in his truck and completed paperwork. When Employee #1 was asked how long he
engaged in the violative activity at issue, he responded, “Climbing on the
handrail would just be momentarily, to get out of the lift and to get back into
the lift.” (Tr. 352) Employee #2 stated
his safety infraction lasted “a matter of seconds.” (Tr. 387) The relatively
short time it takes for employees to climb over the guardrails of an aerial
lift is a key factor in finding the Secretary failed to establish Mr. Thompson
should have known of the violative conduct.
“[T]he employer's duty is 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. Pennsylvania Pwr. & Light Co. v. OSHRC, 737 F.2d 350 (3d Cir.1984); see Jones
& Laughlin Steel Corp., 10 BNA OSHC
1778, 1982 CCH OSHD ¶ 26,128 (No. 76–2636, 1982).” Texas
A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91-3467, 1995) (emphasis in
original). The Commission has declined
to find constructive knowledge when the Secretary has failed to establish the
violative conduct persisted long enough for a reasonably diligent supervisor to
observe it.
[W]e find that there is insufficient
evidence to show that the condition was present for a long enough time that the
employer should have known about it. See Major
Constr. Corp., Inc., 20 BNA OSHC 2109, 2111,
2004-2009 CCH OSHD ¶ 32,860, p. 53,042 (No. 99-0943, 2005) (constructive
knowledge not established where violation might only have been capable of being
observed for a short period); see also Cranesville Block Co.,
23 BNA OSHC 1977, 1986, 2009-2012 CCH OSHD ¶ 33,227, p. 56,017 (No. 08-0316,
2012) (consolidated) (knowledge not established where violative condition was
in plain view but evidence did not establish how long it existed or that
supervisors were in area); Williams Enters., Inc., 10 BNA OSHC 1260, 1263, 1982 CCH OSHD ¶ 25,830, p. 32,306
(No. 16184, 1981) (knowledge not established absent evidence that violative
condition existed “for a sufficient period of time that [the employer] should.have.discovered.it”).
LJC Dismantling
Corp., 24 BNA OSHC 1478, 1481 (No. 08-1318,
2014).
Here, the record
establishes the violation occurred fleetingly and Mr. Thompson was not in a
position to observe it. The Secretary
has not established Mr. Thompson could have known of the violation with the
exercise of reasonable diligence. He has
failed to prove S&S had constructive knowledge of the violation.
Unpreventable Employee Misconduct Defense
Even if the Court found the
Secretary had proven S&S knew of the violative conduct, the company would
prevail with its affirmative defense of unpreventable employee misconduct. The Commission has recognized this defense when “the actions
of the employee were a departure from a uniformly and effectively communicated
and enforced work rule.” Archer-Western
Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991).
The Secretary and S&S analyzed
this defense under the Commission’s standard:
“To establish unpreventable employee misconduct, the employer must show
that it: (1) has established work rules designed to prevent the violation; (2)
has adequately communicated the rules to its employees; (3) has taken steps to
discover violations of the rules; and (4) has effectively enforced the rules
when violations were detected.” Rawson Contractors, Inc., 20 BNA OSHC
1078, 1081 (No. 99-0018, 2003). This
case arose in the Sixth Circuit. “Where
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 Sixth Circuit’s standard for
proving unpreventable employee misconduct is more stringent than that of the
Commission. “’In the Sixth Circuit, in order to
successfully assert this defense, an employer must show that it has a thorough
safety program, it has communicated and fully enforced the program, the conduct
of the employee was unforeseeable, and the safety program was effective in
theory and practice.’ Danis–Shook
Joint Venture XXV v. Sec'y of Labor, 319 F.3d 805, 812 (6th Cir. 2003).” All Erection & Crane Rental Corp. v. Occupational Safety &
Health Review Comm'n, 507 F. App'x 511, 516 (6th Cir. 2012). “[T]o be
effective, the safety program must be designed such that, if followed, it would
prevent the violations at issue. See National Engineering
& Contracting Co. v. U.S., Occupational Safety and Health Review Comm'n, 838 F.2d 815, 819 (6th Cir.1987) (affirming
rejection of unpreventable employee misconduct defense based on absence of work
rule designed to prevent violation).” Danis-Shook Joint Venture XXV v. Sec'y of Labor,
319 F.3d at 812. The record supports
finding S&S met the requirements of the unpreventable employee misconduct
defense as set forth by both the Commission and the Sixth Circuit.
Thorough Safety
Program
Gary Tuttle is S&S’s vice
president of safety and risk management (Tr. 160). He explained the structure of his department.
Safety department, right now we have a
position we call a safety representative in our various area offices. These
folks have other responsibilities outside of safety, but they assist us with
auditing and doing investigations, collecting the various documentation that's,
you know, that's necessary. There's five safety representatives. And then in
the safety department, as a full-time position, not including myself, I have
five safety personnel. Out of those five, one is a -- does
administrative work, and then the other
four are field safety personnel that would do various activities related to the
implementation of our program. And we -- one fellow does a lot of the industrial hygiene work for us and
assessments, as well as making sure we're complying with our respiratory
protection programs. They also do – that individual also does site audits and
training. Then I have two other individuals that, pretty much we'd split the
state, one on the east side of the state, one on the west side of the state.
They have responsibility to conduct training in the field, do site audits,
assist in planning and implementation of the safety program. So that's those
two. And then the last, the fifth safety
department employee, focuses primarily on the bridge work, and auditing, and
training, and assisting in planning and getting equipment as necessary to our
bridge division.
(Tr.
166-167)
In addition to S&S safety
department employees, the company contracts with outside safety consultants
(Tr. 167-168). Mr. Tuttle testified S&S employs only union carpenters, operators, cement finishers,
and laborers on its projects (Tr. 164-165).
S&S’s
safety program is documented in its Employee
Safety Handbook, which it provides to each of its employees (Exh. R-12; Tr. 170).
Mr. Tuttle stated he and his safety team review the handbook annually
and make “modifications based on regulatory changes, areas that we feel like we
need to focus on a little stronger, and distribute that to all our workers.”
(Tr. 169) The handbook contains a
section on “General Safety Guidelines” and a section on “Specific Safety
Guidelines,” which addresses safety rules for particular work activities,
including fall protection and the use of aerial lifts. The section on aerial lifts includes the
following rules:
-
Always keep feet on floor. Climbing or sitting on the handrail is
prohibited.
-
Use no additional means to gain height (i.e.
ladders, planks, standing on guardrail).
-
Operator shall be tied off to designated
location inside the lift at all times.
Restraint shall consist of a harness and Self Retracting Line (SLR).
(Exh. R-12, p. 25)
CSHO
Schnipke testified S&S’s safety program was
adequate (Tr. 119-120). The Secretary
concedes, “S&S did have established work rules with regard to aerial lifts
and fall protection.” (Secretary’s brief, p. 14) The Court finds S&S had a
thorough safety program in place at the time of the inspection, and it had
specific rules designed to prevent the violative conduct at issue.
Communication of
Safety Program
S&S provides a safety orientation to each of its new hires
under the direction of the jobsite foreman.
The orientation includes a review of the Employee Safety Handbook (Exh. R-12; Tr.
170). When employees are hired whose assigned tasks will
expose them to fall hazards, an S&S safety representative provides them
with specialized fall protection training.
Mr. Tuttle stated, “When we get a new hire that is going to be exposed
to a fall hazard, the foreman is to contact the safety department. The safety department will go to the site and
conduct a training, issue -- fall protection training, issue the fall
protection equipment, and instruct on the use of the equipment, the inspection
of the equipment, and the general elements of the fall protection program.”
(Tr. 169)
The foreman conducts weekly toolbox talks using prepared memos
provided by S&S. Mr. Tuttle testified the toolbox talks
are “designed to cover every section that is identified in our safety
handbook.” (Tr. 185). Employees
attending the toolbox talks must sign a sign-in sheet afterwards (Tr. 187). Foreman Thompson conducted toolbox talks on
February 22 and May 16, 2016, addressing the fall protection standard (Exh. R-10, pp. 3, 17; Tr. 185-187).
At the
beginning of a project, the foreman conducts a safety assessment to “identify
the specific hazards that the employees are going to deal with for various
tasks.” (Tr. 187) The foreman conducts the safety assessment in the presence of
the crew members, who sign the assessment form to show they participated in the
assessment (Tr. 189-190). Foreman
Thompson completed one for August 9, 2016, at 6:30 a.m. The assessment identifies possible hazards,
including falls. Under “Eliminate/Manage
Risks,” Mr. Thompson wrote, “Put up Proper Fall Protection, Wear Approved
Safety Harness.” In answer to the
question, “What is the most likely way you or a coworker could be injured
performing this job?,” Mr. Thompson wrote,
“Fall.” Responding to the question,
“What additional preventative actions have you taken to avoid this injury?,” Mr. Thompson wrote, “Fall Protection, Harness, Tie
Off.” (Exh. R-11, p. 10; Tr. 189)
Although the
Secretary concedes S&S “did have a training program to communicate these
rules to its employees, including annual training programs and weekly ‘toolbox
talks’ to briefly remind employees of specific work rules,” he contends
S&S’s safety program
was not entirely adequate. On
the morning of the inspection, August 9, 2016, Thompson actually gave a toolbox
talk on fall protection to all of his crew. …
One problem with the effectiveness of Thompson’s talks were their
repetition. Thompson gave the same series of weekly toolbox talks in a regular
rotation. … A safety director for S&S would prepare the talks over the
winter and simply photocopy pages for Thompson before starting a project. … As
Thompson had much of the same crew members working for him on many projects
over many years, they heard the exact same toolbox talks repeated many times. …
Sometimes Thompson would allow employees to simply read the talk to themselves
instead of listening to it. … [An employee] even testified that “a lot of us
know [the toolbox talks] -- we've been on the job quite a few times. We
actually know what this all means. We will look it over and then sign off on
it.” … This indicates a disregard for
the usefulness of the information conveyed in the toolbox talks. Thompson did
not quiz his crew on lessons learned from the toolbox talks, did not solicit
any feedback from them regarding the hazards, did not demonstrate proper safety
techniques, or do anything to make the toolbox talks interactive. … He simply
lectured them and had them sign to confirm their attendance. … These toolbox
talks did not adequately communicate the work rules, as clearly evidenced by
the number of violations that occurred the very day of the toolbox talk.
(Secretary’s brief, pp. 21-22) (citations to transcript
omitted)
The
Secretary seeks to impose obligations on S&S not required by the either the
Commission or the Sixth Circuit for establishing the unpreventable employee
misconduct defense. The Commission requires
the employer to prove it adequately communicated the work rules to its
employees. The Sixth Circuit requires
the employer to prove “it has communicated and fully enforced the program.” S&S has established it effectively
communicated the rules prohibiting climbing the guardrails of an aerial
lift. Each of the employees testified
they had received extensive training and were aware of the safety rules (Tr.
335-36, 377-79, 395-97, 419-23). Having
effectively communicated the safety rules, S&S was not required to quiz the
employees on the rules or solicit their feedback or make the toolbox talks
interactive.
The Court
finds S&S effectively communicated its safety program, including the safety
rules prohibiting employees from climbing the guardrails of the lift, to its
employees.
Enforcement of Safety Program
S&S has
a written disciplinary program. Mr.
Tuttle explained,
We have a progressive policy,
meaning that, you know, the first observation you'll be verbally warned. The
second observation of non-compliance with programs and policies you'll receive
a written warning. Third violation you would receive another written warning,
or suspension, or termination, depending upon the severity and the -- if it was
blatant disregard.
(Tr. 176-177)
Exhibit R-7
comprises copies of spreadsheets of safety notifications issued in 2014, 2015,
and 2016 (Tr. 194). Foremen and
representatives of S&S’s safety department issued approximately 115 verbal
and written warnings for safety rule violations during those three years (Exh. R-7). The exposed employees cited in this
proceeding each received written warnings (Exh. R-9;
Tr. 201). Mr. Thompson’s discipline was
more severe. Once S&S received the
Citation, S&S suspended him for four months without pay. He was required to take a refresher safety
course and meet with the owner, president, vice-president, and Mr. Tuttle
before being allowed to work again (Tr. 197-198). S&S also demoted Mr. Thompson, which
resulted in significant economic costs.
Thompson:
[W]hen they brought me back it wasn't a
supervisor -- I went and worked for another supervisor.
Q.: Is that at less pay?
Thompson:
Oh yeah. Lot less pay. … I lost my expense, my
vehicle, gas card, you know, money. You know, pride.
Q.: How much money?
Thompson: It probably $30,000, $40,000 difference for
the months that I missed.
(Tr. 288)
The Commission has found progressive
disciplinary policies and disciplinary records are adequate to establish
enforcement of an employer’s safety policy.
SJL's disciplinary
log shows that over the two-year period predating the OSHA inspection, SJL
warned and suspended employees on dozens of occasions for safety violations,
four of which were for confined space violations during 2009. Although, as the
Secretary points out, the log shows no disciplinary records related to confined
space issues following a 2009 verbal warning, the log shows that SJL
implemented a progressive disciplinary policy for safety violations. See Stahl
[Roofing Inc.,], 19 BNA OSHC [2179,] 2182 [(No. 00-1268, 2003)
(consolidated) (finding progressive discipline program sufficient to establish
adequate enforcement element of reasonable diligence). We find that, in light
of SJL's record of numerous safety-related disciplinary actions, the lack of
evidence that the Crew Leader or his crew members were disciplined shows simply
that they had not committed safety violations for which they would be subject
to discipline, rather than, as claimed by the Secretary, that discipline with
respect to this crew, or employees in general, was lax. See Am.
Eng'g, 23 BNA OSHC [2093,] 2097 [(No. 10-0359, 2012)]
(discipline adequate where employer had progressive disciplinary program and
had imposed extensive discipline for safety violations in year prior to incident); Thomas
Indus., 23 BNA OSHC [2082,] 2088-89 (No. 06-1542,
2012)] (discipline adequate where employer had disciplined employees for
violations of its safety program and disciplinary reports show that employees
involved in fall protection violation at issue had never been disciplined for
personally violating fall protection rules). On the contrary, the record shows
that when SJL discovered safety work rule violations, corrective informal
training was provided and other corrective measures, including disciplinary
actions, were taken. See Aquatek Sys.
Inc., 21 BNA OSHC 1400, 1402 (No. 03-1351, 2006)
(finding that verbal reprimand demonstrates employer enforced.safety.rules).
S. J. Louis Constr.
of Texas, 25 BNA OSHA 1892, 1900 (No. 12-1045, 2016).
The
Commission also has held, “[O]ne of the factors
considered in determining whether an employer effectively enforced its safety
rules are the efforts it took to monitor adherence to those safety rules by
supervisory employees.” L. E. Myers Co., 16 BNA OSHC 1037, 1042
(No. 90-945, 1993). Mr. Tuttle testified
safety department employee Robin Sichina monitored
Mr. Thompson’s supervision of the bridge worksite, located near Cambridge,
Ohio. Mr. Sichina
had inspected the bridge worksite the day before the inspection (Tr. 437).
Actually, Robin didn't
live -- doesn't live too far from those locations. Those are
in the Cambridge area, and Robin lives just outside of Cambridge.
So he was able to stop by. ... And I know on this particular bridge at
question, CR-35, even though they hadn't been working but for at -- I believe
just a few days; Robin had already stopped at that job, mainly because it was
so close, and it -- truly, we were, for lack of any other word, bird-dogging.
(Tr.
192-193)
The
Secretary faults the enforcement of S&S’s safety program based on his
perception foreman Thompson is too soft on the employees he supervises.
As every one of S&S’s employees
testified, Thompson is a really nice guy. …
All of the workers have worked for Thompson on many different projects,
many of them for years. … Most of the crew lives near Thompson, they socialize
outside of work, and their families know each other. … [Employee John] Bintliff is even married to Thompson’s sister. … In short,
Thompson is too close and too connected to his crew to effectively discipline
them. Thompson admitted that in his 22 years at S&S, 18 years as a foreman,
he has never disciplined anyone for a fall protection violation. … Other
S&S personnel have disciplined members of Thompson’s crew for fall
protection violations… and CSHO Schnipke observed
four separate violations in just a few minutes. Tuttle could not think of any
other supervisor who had worked for as long Thompson without having disciplined
workers. ... The fact that Thompson had not observed a fall protection
violation in 22 years of working on bridges is simply unbelievable. Instead, it
belies the fact that Thompson is too nice to effectively enforce the work
rules.
(Secretary’s
brief, pp. 16-17) (citations to transcript omitted)
The Secretary’s focus solely on Mr. Thompson’s administration of
discipline is too narrow and his contention Mr. Thompson overlooked instances
of safety violations is too speculative.
The affability of a supervisor is not a ground for finding failure to enforce
safety rules. Although it is not
unlikely in his 22 years working for S&S that Mr. Thompson had observed
members of his crew violate safety rules and failed formally to discipline
them, establishing adequate enforcement of a safety program does not require an
employer to prove its enforcement is perfect.
See S. J. Louis Corp., 25 BNA
OSHC at 1899 (“Thus, we find that these few errors do not amount, as the
Secretary suggests, to employee violations that are too numerous to find that
SJL’s safety ruler were effectively enforced.”).
Mr. Thompson had extensive training in OSHA’s safety
standards. He has completed the OSHA
30-hour course twice, as well as OSHA’s 10-hour course. He has received training in aerial lifts
operation, rigging, and crane standards, and attends S&S’s annual supervisor
training (Tr. 230-231). He was
well-qualified to supervise a work crew.
Based on the totality of the
evidence, including testimony and exhibits establishing S&S implemented
field monitoring and safety audits, a progressive disciplinary system, and
disciplinary measures, the Court finds S&S effectively enforced its safety
program.
Unforeseeability of Employee Misconduct
This
element, not required by the Commission to establish unpreventable employee
misconduct, applies to supervisory personnel.
The employees engaged in the violative conduct in this case were not
supervisors. Therefore, S&S is not
required to prove the violative conduct was unforeseeable. See
Dana Container, Inc., 25 BNA OSHC 1776, 1783 n. 15 (No. 09-1184, 2015), aff’d 847 F.3d 495 (7th Cir.
2017) (“[F]oreseeability is not an additional
element; rather, it is an issue proved or disproved by an analysis of the four
[unpreventable employee misconduct] elements, and only in the context of
imputing a supervisor's knowledge of his own misconduct to the employer in
circuits, such as the Third Circuit, which require a showing of
foreseeability.”).
Effectiveness of Safety Program
Finally, the
employer must prove its safety program “was
effective in theory and practice.” This
element correlates to the requirement by the Commission that the employer
establish it has taken steps to discover violations of its rules.
It is clear from the record that
S&S’s safety program was effective in theory. It has a fully staffed safety department, a
comprehensive written safety program, and a disciplinary system in place. The issue is whether the theoretical program
leads to practical results. See Precast
Servs., Inc., 17
BNA OSHC 1454, 1455 (No. 93-2971, 1995) (“To prove that its disciplinary system
is more than a ‘paper program,’ an employer must present evidence of having
actually administered the discipline outlined in its policy and procedures.”).
In S. J. Louis Construction, the Commission
found (in assessing the adequacy of the company’s safety program) the employer
took steps to discover violation based on its monitoring and auditing system.
With regard to
discovering violations of its work rules, SJL has a full-time safety director
and five field safety supervisors who conduct random and planned field safety
audits . . . See Stahl Roofing Inc., 19 BNA OSHC 2179, 2182 (No. 00-1268, 2003) (consolidated)
(safety director's unannounced visits as part of monitoring system deemed
adequate); N.Y. State Elec. & Gas Corp., 19 BNA OSHC 1227, 1231 (No. 91-2897, 2000) (same); Burford's
Tree, 22 BNA OSHC at 1950-51 (discussing audits as a
means to discover safety violations).
25 BNA OSHC at
1899.
S&S
also has a full-time safety director (Mr. Tuttle’s title is vice president of
safety and risk management) and a staff of approximately five full-time safety
department employees. The safety
employees conduct site auditing and training (Tr. 166-167). In a three year period, S&S issued
approximately 115 verbal and written warnings to employees who violated safety
rules (Exh. R-7).
The Court finds S&S’s safety program was effective in theory and
practice.
Having established the
elements of the unpreventable employee misconduct defense under both the
Commission and the Sixth Circuit, S&S has prevailed with its affirmative
defense with regard to the violation of § 1926.453(b)(2)(iv). Item 1 is vacated.
Item 2: Alleged Repeat Violation of § 1926.501(b)(1)
Item 2 of
the Citation alleges,
a. On or about August 9, 2016,
at the bridge construction site, on the Northeast side of the bridge, employees
installed components of horizontal lifeline systems while standing on bridge
beams without the use of fall protection, thereby exposing employees to an
approximately 20 foot fall hazard.
b. On or about August 9, 2016,
at the bridge construction site, on the West end of the bridge, employees
walked out approximately nine feet on a bridge beam without the use of fall
protection before reaching an attachment point to the horizontal lifeline
system, thereby exposing employees to an approximately nine foot fall hazard.
c. On or about August 9, 2016,
at the bridge construction site, over I-77 Southbound traffic, employees
installed walers while standing on false work that
had an unprotected side within approximately 12 feet without the use of fall
protection, thereby exposing employees to an approximately 17 foot fall hazard.
Section
1926.501(b)(1) provides:
Each
employee on a walking/working surface (horizontal and vertical surface) with an
unprotected side or edge which is 6 feet (1.8 m) or more above a lower level
shall be protected from falling by the use of guardrail systems, safety net
systems, or personal fall arrest systems.
(1)
Applicability of the Cited Standard
A “walking/working surface” is “any
surface, whether horizontal or vertical on which an employee walks or works,
including, but not limited to, floors, roofs, ramps, bridges, runways, formwork
and concrete reinforcing steel but not including ladders, vehicles, or
trailers, on which employees must be located in order
to perform their job duties.” 29 C.F.R § 1926.500(b). The standard defines
“unprotected side or edge” as “any side or edge (except at entrances to points
of access) of a walking/working surface, e.g., floor, roof, ramp, or runway
where there is no wall or guardrail system at least 39 inches (1.0 m) high. Id. The bridge beams and the false work
at the worksite were walking/working surfaces with unprotected edges within the
meaning of the cited standard. The Court concludes section 1926.501(b)(1)
applies to the cited conditions of each instance alleged by the Secretary.
INSTANCE (A)
(2) Terms of § 1926.501(b)(1) Were Violated
CSHO Schnipke observed Employees #1 and #2 standing on the
I-beams in the center of the bridge after they exited the aerial lift. As they were installing the lifeline
stanchions and wire, they stood and walked on a section of I-beam that lacked
any false work plywood flooring below.
The employees were not tied off (Exhs. C-13,
pp. 6, 17; Tr. 51). The I-beam was approximately 20 feet above the ground (Exh. C-18, p. 2).
S&S does not dispute Employees #1 and #2 failed to comply with the
requirements of § 1926.501(b)(1).
(3) Employees Had Access to the Violative Condition
S&S admits
its employees were exposed to a fall of 20 feet (Exh.
C-18, pp. 2-3).
(4) Employer Knowledge
As with the
aerial lift violation cited in Item 1, the Secretary contends Mr. Thompson had
actual knowledge of the violative conduct based on his presence in his truck
parked below the level of the bridge.
The Court, in keeping with the determination made in discussing Item 1,
credits Mr. Thompson’s testimony he could not see the employees as they worked
on the bridge from his vantage point (Tr. 283).
The
Secretary’s argument S&S had constructive knowledge of the violative
conduct because Mr. Thompson should have known of the hazard with the exercise
of reasonable diligence is similarly unavailing here. As the Court noted previously, at the time of
the OSHA inspection, S&S had implemented adequate work rules and a training
program, adequately supervised employees, anticipated hazards and took measures
to prevent violations from occurring.
As in Item 1, the short duration of
the violative activity weighs in favor of finding no constructive
knowledge. CSHO Schnipke
testified Employees #1 and #2 worked on the bridge at the cited location for
“approximately 10, 15 minutes.” (Tr. 53)
See Major Constr. Corp., Inc.,
20 BNA OSHC at 2111 (constructive knowledge not established where violation
might only have been capable of being observed for a short period.).
The record
establishes the violation was of short duration and Mr. Thompson was not in a
position to observe it. The Secretary
has not established Mr. Thompson could have known of the violation with the
exercise of reasonable diligence. He has
failed to prove S&S had constructive knowledge of the violation.
Unpreventable Employee Misconduct Defense
The Court finds that, even if the Secretary had established
the element of knowledge, S&S would prevail regarding Instance (a) on the
affirmative defense of unpreventable employee misconduct. As stated previously, in
order for an employer to prevail with this defense in the Sixth Circuit,
it must prove it has implemented “a thorough safety program, it has
communicated and fully enforced the program, the conduct of the employee was
unforeseeable, and the safety program was effective in theory and
practice.’ Danis–Shook
Joint Venture XXV v. Sec'y of Labor, 319 F.3d 805, 812 (6th Cir. 2003).” All Erection & Crane Rental Corp. v. Occupational Safety &
Health Review Comm'n, 507 F. App'x at 516. “[T]o be
effective, the safety program must be designed such that, if followed, it would
prevent the violations at issue. See National Engineering
& Contracting Co. v. U.S., Occupational Safety and Health Review Comm'n, 838 F.2d 815, 819 (6th Cir.1987) (affirming
rejection of unpreventable employee misconduct defense based on absence of work
rule designed to prevent violation).” Danis-Shook Joint Venture XXV v. Sec'y of Labor,
319 F.3d at 812.
For the reasons discussed in Item 1 addressing the unpreventable
employee misconduct defense, S&S has established it implemented a thorough
and effective (theoretically and practically) safety program that was enforced
(again, the foreseeability of a supervisor’s misconduct is not at issue). Because the employer must establish in each
instance it had a work rule designed to prevent the cited violation and
communicated it, the Court makes further findings on this issue.
S&S’s Employee Safety
Handbook addresses fall protection:
FALL
PROTECTION
Fall Protection is the means used for preventing a fall. The following are some examples of fall
protection devices:
-
guardrails
-
ladders
-
scaffolds/work
platforms
-
personnel lifts
-
fall arrest
equipment (anchors, harnesses, lanyards)
-
positioning
devices
Please Note: Areas that require fall arrest equipment
(i.e., open sides and edges) 6 feet or greater require additional
training. See equipment use manual.
When using any means of fall
protection certain guidelines must be observed.
The following information addresses these guidelines.
***
Whenever there is a possibility to free fall greater
than 6 feet, fall arrest equipment must be utilized. All employees that are working at heights
greater than 6’ shall be tied off 100% of the time or be protected by the use
of a handrail system. Check with your
supervisor or safety administrator for the proper equipment selection and
anchorage points. Always review the
manufacturer’s use manual for specific devices.
Anchorage
points must meet 5,000 lb. rating per employee for fall arrest.
(Exh. R-12, pp. 24, 26)
S&S has established it had work
rules designed to prevent the violation cited in Item 2. It also effectively communicated these work
rules. It provides a safety orientation
to each of its new hires. If the
employees will be exposed to fall hazards, S&S’s safety department sends a
representative to the worksite to conduct fall protection training (Tr. 169).
The
Court determines S&S has established the unpreventable employee misconduct
defense, under the requirements of both the Sixth Circuit and the Commission,
with respect to Instance (a) of Item 2.
INSTANCE (B)
(2) The Secretary Failed to Prove Terms of § 1926.501(b)(1) Were Violated
CSHO Schnipke
observed employees detach the carabiners of their lanyards from the horizontal
lifeline as they exited the bridge during the OSHA inspection (Exh. C-1, p.7). He
contends the distance from the walking/working surface at that point was 9 feet
above the ground of the embankment below.
He did not measure the distance, but rather calculated it based on his
observations and measurements listed on a drawing of the bridge. He stated, “[Nine] feet out with a 45-degree
angle is a 9-feet drop. I was unable to get directly up against the bridge due
to the steep slope and the -- and there was also some rubble there as well.”
(Tr. 92)
Mr.
Thompson testified he had measured the distance from the bridge to the ground
beneath where the last stanchion was located (where employees would have to
disconnect their lanyards). He stated
the distance from the top of the bridge to the ground below was less than 6
feet, starting from the last stanchion to the end of the bridge. Mr. Thompson did not document this
measurement (Tr. 271-272).
The Secretary explains how CSHO Schnipke arrived at his conclusion the employees at issue
were exposed to a fall of 9 feet.
As he did not want to expose himself or
others to a possible fall hazard, CSHO Schnipke did
not make a vertical measurement of the height above the ground at the
attachment point. Tr. at 143. He also
did not want to expose himself to a fall hazard climbing down the bridge’s
embankment to measure the height from underneath. Tr. at 92. To indirectly determine the height
at the attachment point, CSHO Schnipke first measured
the distance between the west end of the bridge and the first stanchion as
between five and six feet. Tr. at 65.
This can be seen in Ex. C13, Pg. 63, particularly the digital version. Tr. at 325; Ex. C13, Pg. 63. He then measured
the distance between a series of metal brackets that were also attached to the
I-beams. Tr. at 65; Ex. C13, Pg. 63. These brackets were approximately 30
inches apart from one another. Tr. at 67; Ex. C13, Pg. 63. Looking at a still
of the video, Ex. C16, he was then able to determine that employees were
detaching from the lifeline between the second and third brackets after the
first stanchion on the I-beam, counting a bracket that was directly at that
stanchion. Tr. at 67; Ex. C13 Pg. 79. This meant that employees were
disconnecting approximately three feet after the first stanchion. Tr. at 67. Adding the distances before and after the
first stanchion, CSHO Schnipke determined that the
attachment point was at least nine feet from the end of the bridge. Tr. at 151. As an alternate calculation, he
determined that the employees were disconnecting between the fourth and fifth
brackets from the west end of the bridge, counting a bracket that was directly
at the end. Tr. at 67. With brackets 30
inches apart, this also results in approximately nine feet from the end of the
bridge to the attachment point. Id. CSHO Schnipke
then examined the construction diagrams of the bridge, which depicted the angle
of the embankment under the west end as 45 degrees. Tr. at 91-92. With that angle, the attachment
point nine feet out on the bridge would be nine feet above the ground. Tr. at 92.
(Secretary’s
brief, pp. 21-22)
S&S takes issue with CSHO Schnipke’s calculations.
The company contends he “engaged in a computation in which he made
unverified assumptions that a typical embankment slope is forty-five degrees
and then deemed employee exposure to a 9’ fall.
… CO Schnipke acknowledged that there was [a]
substantial amount of concrete debris underneath the center bridge beams and
that such debris would reduce the distance of the fall hazard. However, CO Schnipke
failed to incorporate this height reduction into his computation.” (S&S’s
brief, pp. 22-23)
The record indicates the bridge
drawing CSHO Schnipke consulted does not reflect the
siting of the existing bridge in the physical terrain of the worksite.
Q.:
Now, this bridge, it shows this -- at the end, the concrete abutment and
then there are concrete piers in the middle of the bridge, and the I-beams of
36 inches runs the entire length of the bridge. Now, as far as your
understanding, you were unaware as to whether or not those I-beams merely sat
on the end abutment of the bridge and sat directly on the concrete piers, or
they would've sat on a bridge seat or beam seat, correct?
CSHO Schnipke: That's correct. I'm not familiar with the
construction of the end of the bridge.
***
Q.:
Now, in Exhibit Page No. 9, at the west end of the bridge where the
first stanchion is located, I believe you see two individuals, one worker
wearing an orange hat, hard hat; another
worker wearing a white hard hat. That's the west end, correct?
CSHO Schnipke: That's
correct, yes. That's the west end.
Q.:
And the first stanchion is the area where you identified as there being
a fall hazard when the workers would unhook their lanyard and walk to the apron
or walk off the beams.
CSHO Schnipke: That's
correct.
Q.:
And you had indicated in your computations that the distance from the
first stanchion or where they were unhooking down to the ground was
approximately 8, 9 feet.
CSHO Schnipke: Correct.
Q.:
Okay. In your computations, I did not hear you referencing this concrete
abutment that's underneath the I-beam, as depicted in photograph No. 9 of
Respondent's Exhibit 18, correct?
CSHO Schnipke: No, I did not reference an abutment.
(Tr.
118-119)
CSHO Schnipke
also conceded the debris underneath the area of the bridge where he asserts the
employees were exposed to a 9-foot fall would affect the distance.
Q.:
With respect to your computation as to the fall hazard, the height of
the fall hazard on that west end of the bridge, you did not factor into that
computation the debris that had built up underneath that first stanchion on the
west end of the bridge, correct?
CSHO Schnipke: That's
correct. The -- it was just based on the ground level.
Q.:
And the ground level meaning under the plans referencing the embankment,
the 45-degree slope.
CSHO Schnipke: That's
correct.
Q.:
So, in other words, when we're talking about in your computation of the
9 feet, you have the 45-degree embankment and then your computation, the area
where they were tying off is 9 feet from the end of the bridge, correct?
CSHO Schnipke: That's
correct.
Q.:
And one thing that it's safe to say that would reduce the height of this
fall hazard would be whether there was any debris, any concrete debris that had
accumulated in that area, correct?
CSHO Schnipke: Accumulation of anything would raise the --
yeah, if anyone would fall, they would fall on the debris.
Q.: And which would, in other words, lessen the
distance of your fall hazard?
CSHO Schnipke: If they
would fall onto the debris, that's correct.
Q.:
So for the sake of example, in other words, if there were -- you had the
embankment and there was 5 feet of debris, there would be a fall hazard of 4
feet, according to your computations?
CSHO Schnipke: Correct, if he had landed on the debris.
(Tr.
146-148)
Counsel for the Secretary asked CSHO
Schnipke to look at a photograph showing the side of
the bridge (Exh. C-13, p. 67). He then asked him if he could “see enough
debris underneath the bridge that would change your estimation that there was
at least a 9-foot fall?,” to which CSHO Schnipke replied, “[N]ot at the
point where they would be disconnected.” (Tr. 151) Viewing the same photograph, the Court cannot
agree the estimation of a 9-foot fall is established. It is not possible to conclude accurately the
distance from the top of the bridge to the area below by looking at the
photograph.
Section
1926.501(b)(1) requires employers ensure that each employee on a walking/working surface with an unprotected
side or edge which is 6 feet or more above a lower level use some form of fall
protection. The distance of 6 feet is
specified in the standard and is part of the Secretary’s burden of proof. Here, the Secretary has failed to establish
by a preponderance of the evidence that the fall distance was greater than 6
feet. The bridge drawing CSHO Schnipke used to calculate the fall distance does not
represent the area under the bridge as it existed at the time of the OSHA
inspection.
The
Secretary has failed to prove the S&S violated the terms of §
1926.501(b)(1). Instance (b) of Item 2
is vacated.
INSTANCE (C)
(2) Terms of § 1926.501(b)(1) Were Violated
CSHO Schnipke observed two employees
standing on the false work installing walers. They were not using fall protection and were
exposed to a fall of 17 feet. S&S
admits the employees “installed walers while standing
on false work without being tied off.” (Exh. C-18,
Pg. 3: Tr. 102).
(3) Employees Had Access to the Violative Condition
S&S
admits its employees were exposed to a fall of 17 feet (Exh.
C-18, pp. 3).
(4) Employer Knowledge
It has been established foreman Thompson was not on the
bridge at the time of the OSHA inspection and he could not see the S&S
employees on the bridge as he sat in his truck.
The Secretary has not established actual knowledge with regard to
Instance (c).
The Secretary has, however, established constructive
knowledge of the violative conduct in this instance. Mr. Tuttle correctly noted false work is not
an exception to § 1926.501(b)(1).
“[I]t's considered a walking/working surface that they've got to either
guard with a guardrail or be tied off with personal fall arrest.” (Tr. 200) For reasons unknown, Mr. Thompson believed
fall protection was not required when employees were using false work as a
platform. When CSHO Schnipke
asked him at the worksite why the employees standing on the false work were not
tied off, Mr. Thompson replied, “Because they’re on false work.” (Tr. 127)[3]
The
Secretary had previously cited S&S for a violation of § 1926.501(b)(1) in
2014, when Mr. Thompson had been observed standing on false work without using
fall protection (Tr. 327). Mr. Thompson
testified that, at the time of the 2014 citation, he believed fall protection
was not required when standing on false work.
“Well at the time I thought that it was a working platform, which it
wasn't. We evidently had to have a cable run through it to be hooked off.” (Tr. 236-237)
This mistaken belief was adopted by
Mr. Thompson’s crew members. Employee #
2 testified he believed he was permitted to exit the aerial lift to the bridge
without using fall protection if false work was installed below the bridge (Tr.
389-390). Employee #3, one of the
exposed employees cited for standing on the false work without fall protection
in this case, testified he was not tied off because “I did not feel there was a
possibility of me falling.” (Tr. 408)
Employee #4, the other exposed employee, testified he was not tied off
while standing on the false work the day of the OSHA inspection (Tr. 429). When asked why he was not tied off, he
responded, “I personally thought that there was no threat of a fall in that
area.” (Tr. 431)
The misconception among several crew
members about the need for fall protection when on or over false work indicates
the employer failed to adequately communicate this specific application of the
fall protection rule to Mr. Thompson’s crew.
Mr. Thompson previously had been cited for standing on false work
without the use of fall protection. As
supervisor, he had an obligation to ensure his crew members recognized there
was no exception to § 1926.501(b)(1) for false work. With the exercise of reasonable diligence, he
could have effectively communicated this information to his crew members, a
measure which could have prevented the violation. The Court concludes S&S had constructive
knowledge of the violation of § 1926.501(b)(1).
Unpreventable Employee Misconduct Defense
The
Court determines S&S failed to establish the defense of unpreventable
employee misconduct with respect to Instance (c). Under both the Commission and the Sixth
Circuit, the employer must establish the effective communication of a work rule
designed to prevent the violative conduct.
S&S established it has a rule requiring the use of fall protection
for employees exposed to falls of 6 feet or more. For some reason, however, Mr. Thompson and
his crew members believed there was an exception to the rule when standing on
false work. S&S’s failure to communicate
effectively to its employees that there is no exception for false work when it
comes to fall protection forecloses establishing its affirmative defense.
The
Secretary has established a violation of § 1926.501(b)(1) with
regard to Instance (c).
REPEAT CHARACTERIZATION
The Secretary characterized Instance
(c) of Item 2 as a repeat violation. Under § 17(a), 29 U.S.C. § 666(a), a
violation may be characterized as repeat where there is a “Commission final
order against the same employer for a substantially similar violation.” See Potlatch Corp., 7 BNA OSHC 1061,
1063, (No. 16183, 1979).
OSHA cited S&S for a violation of
the same standard, § 1926.501(b)(1), resulting from an inspection in 2014 (Exh. J-1, Attachment C—Stipulated Facts). Page 6 of Exhibit
C-6 is a copy of a citation and notification of penalty issued to S&S on
January 21, 2015. Pages 8 and 9 of Exhibit C-6 are copies of the Informal
Settlement Agreement the parties signed on February 11, 2015. The citation was affirmed as a final order on
February 22, 2015 (Exh. J-1, Attachment C—Stipulated
Facts).
The Court finds S&S’s violation
of § 1926.501(b)(1), as set out in Instance (c) of Item 2 of the Citation, is
properly characterized as repeat.
PENALTY DETERMINATION
The Commission is the final arbiter
of penalties in all contested cases. “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
Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a
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.” Siemens Energy and
Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).
During its high season, S&S
employs as many as 1,500 employees (Tr. 164).
OSHA had issued citations to S&S five times since 2001, most
recently, prior to the citation at issue, in 2014 (Tr. 74-75). The Court does not credit S&S with good
faith because it is a repeat violation.
The gravity of the violation is
high. Two employees were standing on the
false work without fall protection for an unknown period of time (they exited
the bridge because Mr. Thompson called them off once he arrived on the bridge
worksite). The likelihood of injury had
they fallen 17 feet to the highway below is great. Based on these factors, the Court assesses a
penalty of $25,000.00 for Instance (c) of Item 2 of the Citation.
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:
1.
Item 1 of Citation No. 1, alleging a repeat violation of §
1926.453(b)(2)(iv), is VACATED and
no penalty is assessed; and
2.
Instances (a) and (b) of Item 2 of Citation No. 1, alleging a repeat
violation of § 1926.501(b)(1), are VACATED
and no penalty is assessed; and
3. Instance (c) of Item 2 of Citation No. 1,
alleging a repeat violation of § 1926.501(b)(1), is AFFIRMED, and a penalty of $25,000.00 is assessed.
SO ORDERED.
/s/
Judge
Sharon D. Calhoun
1924 Building, Suite 2R90
Date: March 30, 2018 100 Alabama Street, S.W.
Atlanta, Georgia 30303-3104
Phone: (404) 562-1640 Fax:
(404) 562-1650
[1] S&S devotes several pages of
its brief impugning CSHO Schnipke’s competence and knowledge of bridge
construction (S&S’s brief, pp. 15-18).
The Court disagrees with S&S’s assessment. CSHO Schnipke’s testimony demonstrated he
conducted a thorough, well-documented inspection. His testimony was clear, detailed, and forthright.
[2]At the hearing, Employee #4
testified he was mistaken when he told CSHO Schnipke that Mr. Thompson had
lifted the bracket, claiming it was an operator named Jordan (Tr. 445-46).
[3] Mr. Thompson initially denied he
made this statement (Tr. 286). His
demeanor when questioned regarding false work became nervous and uneasy (Tr.
311-315). He conceded he did discuss the
use of false work with CSHO Schnipke (Tr. 315).
The Court credits CSHO Schnipke’s testimony that Mr. Thompson made this
statement the day of the inspection, indicating he believed fall protection was
not required for employees standing on false work.