THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION
AS IT IS PENDING COMMISSION REVIEW
United States of America
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
100 Alabama St. S.W
Building 1924 Room 2R90
Atlanta, GA 30303-3104
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SECRETARY OF LABOR, Complainant, |
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v. |
OSHRC Docket
No. |
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Respondent. |
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DECISION AND ORDER
COUNSEL:
Dane L. Steffenson, Attorney, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Complainant.
Angelo Filippi, Attorney, Kelley Kronenberg, Fort Lauderdale, FL, for Respondent.
JUDGE: John B. Gatto, United States Administrative Law Judge.
I. INTRODUCTION
In September 2016, the Department of
Labor’s Occupational Safety and Health Administration (OSHA) conducted a
fatality investigation involving an employee of Ceco
Concrete Construction, LLC (Ceco) at an apartment
building under construction in West Palm Beach, Florida (worksite), and subsequently
issued a four-item citation to Ceco for alleged violations
of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§
651–678, with proposed penalties of $50,700.00.[1] After Ceco timely
contested the citation, the Secretary of Labor (Secretary) filed a formal
complaint[2] with the Commission
charging Ceco with violating the Act and seeking an
order affirming the citation and proposed penalties. The Secretary subsequently withdrew Item 2
prior to trial, which reduced the Secretary’s total proposed penalty to
$38,025.00 (Pretrial Order, ¶ 11). A
bench trial was held in Miami, Florida.[3]
There is no dispute that jurisdiction
of this action is conferred upon the Commission by section 10(c) of the Act, 29
U.S.C. § 659(c), or that Ceco is an employer engaged
in a business affecting commerce within the meaning of section 3(5) of the Act,
29 U.S.C. § 652(5) (Compl. ¶¶ I-II; Answer ¶¶ I-II). After hearing and carefully considering all
the evidence and the arguments of counsel, the Court issues this Decision and
Order, which constitutes its final disposition of the proceedings.[4] For the reasons indicated infra, the Court VACATES Item
1 and AFFIRMS Items 3 and 4.
II.
BACKGROUND
Ceco was the formwork[5] contractor for an
apartment building under construction at the worksite where its scope of work
included installing and removing formwork, installing rebar, and placing
concrete for decks and columns. The
formwork consisted of aluminum legs connected by “windows” to form a table that
would fit between columns. Concrete was
poured on the formwork to create the decks.
Interior forms were assembled on the deck. Perimeter forms, or tables, were assembled
on the ground and reused on each floor (Tr. 278-280).
The
perimeter tables had four legs; each leg had a screw jack that allowed crews to
raise or lower it to level the table.
After the poured concrete hardened sufficiently, stripping crews removed
the formwork by lowering the table several inches to remove tie-down
straps. When the crew was ready on the
level above, the crane operator lifted the table an inch or two, using a
“C-picker” attached to the crane. The
crane operator then raised the table to the level above and set it down in the
spot located above where it was set below (Tr. 61-62, 281-282).
On
September 1, 2016, three Ceco employees were working
on the 16th level (the 15th story since the number 13 was
omitted in numbering the floors) of the planned 20 story building. Ceco Foreman Luis
Gutierrez and two of Ceco’s carpenters (the Decedent
and Martin Perez Mendez) were in the
process of installing a large piece of formwork designated as Table 27.[6] At approximately 1:30 p.m., after being
released by the C-picker of the crane that had hoisted it into place, Table 27
fell from the 16th level to the street below, dragging with it the Decedent
(Tr. 41-42, 64-65).
OSHA’s
West Palm Beach area office received notification of the accident and assigned
Compliance Safety and Health Officer Luis San Miguel to conduct a fatality
investigation of the incident. San
Miguel arrived at the construction site at approximately 4:30 p.m. the day of
the accident and held an opening conference with representatives of Kast, the
general contractor, and Ceco (Tr. 41-42). San Miguel interviewed employees (including
the foreman and laborer who had been working with the Decedent), the Decedent’s
next of kin who had arrived at the site, responding police officers, and the
medical examiner. San Miguel also reviewed
Ceco’s formwork plans, its Best Practices Manual, its safety plan, and its safety manual
(Tr. 49-51; see also Ex. J-1, Ex.
J-2, Ex. J-4, J-6, Ex. C-2). At
approximately 5:15 p.m., San Miguel went to the 16th level of the
building, accompanied by representatives of Kast and Ceco
and took photographs (Tr. 53).
San
Miguel returned the next day and went back to the 16th level, again
accompanied by Kast and Ceco representatives, as well
as Gutierrez and Mendez, who had been present the day before when Table 27
swept the Decedent off the building. San Miguel conducted further interviews with
the two employees while examining the worksite at that level (Tr. 103-105). Based on his investigation, San Miguel
recommended the Secretary cite Ceco for violating
four construction standards. The
Secretary did so on March 1, 2017. As
noted supra, only Items 1, 3, and 4
of the citation remain at issue.
III.
ANALYSIS
The fundamental objective
of the Act is to prevent occupational deaths and serious injuries. Whirlpool Corp. v. Marshall, 445 U.S. 1,
11 (1980). The Commission serves as a
“neutral arbiter” between the Secretary and cited employers. Cuyahoga Valley Ry. Co. v. United Transp.
Union, 474 U.S. 3, 7 (1985). Thus, Congress vested the Commission with the
“adjudicatory powers typically exercised by a court in the agency-review
context.” Martin v. Occupational Safety
and Health Review Comm'n (CF&I Steel Corp.), 499 U.S. 144, 151, 154
(1991).
The Court of Appeals for
the Eleventh Circuit where the action arose[7] has held, “the
Secretary will make out a prima facie case for the violation of an OSHA
standard by showing (1) that the regulation applied; (2) that it was violated;
(3) that an employee was exposed to the hazard that was created; and importantly,
(4) that the employer ‘knowingly disregarded’ the Act's requirements.” ComTran Grp., Inc. v. U.S.
Dep't of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).
A.
Item 1
The cited standard in
Item 1, 1926.502(d)(15), provides in relevant part
that “[a]nchorages used for attachment of personal fall arrest equipment shall be … capable
of supporting at least 5,000 pounds (22.2 kN) per
employee attached[.] 29 C.F.R.
§ 1926.502(d)(15). The Secretary alleges that Ceco violated the cited standard because on the day of the
fatality, Ceco’s employees allegedly “anchored their
fall protection arrest system to the bracings of the nearby formwork tables
without ascertaining the capacity of the bracings to withstand a force of 5,000
pounds.” (Compl. Ex. A at 6 of 11).
(1)
Whether Cited Regulation Applies to Cited Conditions
Section 1926.502(d)(15) is found under Subpart M—Fall Protection of the Construction
Standards, which sets forth the requirements for fall protection in
construction workplaces. As indicated supra, at the time of the fatality, Ceco was engaged in construction work activities involving
the placement of formwork at the worksite.
Therefore, the cited standard applies to the cited conditions.
(2)
Whether Requirements of Cited Regulation Were Violated
The
Secretary contends Gutierrez and Mendez anchored their self-retracting lifelines
to the frames of formwork tables adjacent to Table 27, which, according to the
Secretary’s expert, were not capable of supporting 5,000 pounds. Ceco disputes the
Secretary’s claim, arguing Gutierrez and Mendez were tied off to columns, which
the Secretary does not argue was inadequate to support 5,000 pounds. Thus, whether the requirements of the cited
standard were violated hinges on which of the parties’ contradictory scenarios
the Court credits.
Ceco had stretched red barricade tape some distance from
the perimeter of the 16th level.
Only the three Ceco employees setting the
tables were permitted past the tape. Ceco had also erected a wooden guardrail between the red
barricade tape and the edge of the 16th level. Anyone going past the guardrail was required
to use a personal fall arrest system (Tr. 55-56; see also Ex. J-6, Ex. C-8, p. 23).
Ceco’s
safety rules also require its employees working on perimeter tables to tie off
to approved anchorage points using self-retracting lifelines. Ceco installed over
100 embedded adapter straps on each level and at the bases of columns at the worksite. Ceco’s employees
could tie off directly to the columns or to the embedded adapter straps (Tr.
282-83, 301-02). Attached to the frame
of a table adjacent to Table 27 were red straps. Gutierrez told San Miguel the straps were
already attached to the table when it was raised from the 15th level
(Tr. 124).
San Miguel interviewed
Gutierrez and Mendez on September 1, 2016, the day of the accident, wrote down
their answers to his questions, and gave them the statements to read and
sign. Both told him they were tied off
to columns while working earlier that day on the 16th level, in
compliance with Ceco’s safety plan and the cited standard. The length of the self-retracting lifelines
they were using was 30 feet, and the self-retracting lifelines were hooked to
straps attached to the bottom of the columns. Both employees identified the columns on
either side of Table 27 at the edge of
level 16 as the ones they attached their self-retracting lifelines (Tr. 98-99, 128-30,
135-37; see also Ex. J-4, Ex. J-6).
San
Miguel returned to the site the next day at approximately 9:30 a.m., and went
back up to the 16th level, accompanied by Gutierrez and Mendez,
among other Ceco representatives. San Miguel testified he asked Gutierrez and Mendez
again what anchorage points they used.
They repeated to San Miguel they had been tied off to columns the day
before (Tr. 106). San Miguel again wrote
down the statements of the employees and had them sign the statements. Nothing in the statements reflects that San
Miguel had any questions about their stated anchorage points (Tr. 107).
San Miguel admitted that Gutierrez
and Mendez told him that after the accident occurred, each of them removed his
self-retracting lifeline “and left it up there at the scene.” (Tr. 123.) This is consistent with evidence gathered by Frederick
Fischer, a crime scene investigator for the City of West Palm Beach Police
Department, that arrived at the worksite on September 1, 2016, at approximately
2:10 p.m. “to document the scene as it appeared after the accident” (Tr. 72-73). He took photographs on the 16th
level at approximately 3:00 p.m., more than two hours before San Miguel arrived
on that level (Tr. 74). Police Photograph
14 shows two self-retracting lifeline devices lying on the floor. One of them is attached to a strap that
appears to be embedded in a column (this is not the column the employees
identified as one they were using at the time of the accident) (Ex. C-7, p.
14). San Miguel admitted at trial Photograph
14 shows physical evidence that employees were properly tied off to columns,
rather than improperly to the formwork frames. (Tr. 141-45.) However, he testified he did not observe the
two self-retracting lifelines lying on floor when he arrived on the 16th
level.
San
Miguel testified he observed red straps on the formwork frame that he thought Gutierrez
and Mendez had used to tie off. Kevin
Peterson is the regional safety director for Heico
Construction Group, and he is responsible for the safety programs of Ceco, a “sister company” of Heico
(Tr. 260-61). Peterson was asked if
thought it was unusual that a strap attached to a self-retracting lifeline was
hanging from a frame, which is not an approved anchorage point. He stated,
I don't find it
unusual. These straps are laying all over the job site. And as an example, somebody
walking through a stripping floor, that strap is no longer needed on those
elevations, they're already installed. They might hang it up. They might hang
it up somewhere. And we tell them repeatedly that – with [self-retracting
lifelines], don't throw them on the floor. I mean treat it -- I mean this is your
protection for your life and don't throw it on the floor, don't leave it out in
the rain. Take care of it. And so, you
know, I see retractables, I see straps, I see a lot of things hung
from tables, windows, boxes, including lunch boxes.
(Tr.
289.)
Mendez never wavered in
his statements to OSHA that he had tied off to a column the day of the
accident. Gutierrez was also consistent
in his two signed statements to OSHA and in his OSHA interview that he had tied
off to a column. The only evidence
indicating Gutierrez was improperly tied to the formwork frame is San Miguel’s
testimony that Gutierrez responded “Yes” when he said to him, “[Y]ou guys were anchored to those red straps on the brace of
the tables.” (Tr. 106-07.) According to San
Miguel, as they were preparing to exit the 16th level, San Miguel
and an emotional Gutierrez had another conversation. San Miguel stated Gutierrez and Mendez “were
still crying. I stood behind because, you know, I -- honestly, I felt for them. . . . And as soon
as we started walking towards the stairs Gutierrez walked with me. And at that point I asked [Gutierrez], you
know, that you guys were anchored to those red straps on the brace of the
tables and he told that, yes.” (Tr. 106-107.)
San Miguel testified this conversation took place in Spanish and no one
overheard it (Tr. 107). San Miguel
testified that he made a note to himself of this conversation when he got to
his car. (Tr. 108-109.) However, the
record does not reflect San Miguel ever asked
Gutierrez to amend his written statement to include this alleged
admission. Significantly, in February
of 2017, Gutierrez again stated at a second OSHA interview[8] that his self-retracting
lifeline was anchored to a concrete column and the other two employees were
also anchored to concrete columns. San
Miguel did not challenge Gutierrez on this point and San Miguel never brought
this purported contradictory statement to the attention of the other OSHA
personnel in attendance at the interview (Tr. 110-11).
Gutierrez did not testify at trial; thus the Court was not given an opportunity to make a credibility
determination based on his live testimony.
However, it is the Secretary’s burden to prove by a preponderance of the
evidence that Ceco failed to comply with the
requirements of the cited standard. There
are significant gaps in the evidence.
San Miguel did not go to the 16th level until approximately
5:15 p.m. on September 1, about 3 hours and 15 minutes after the 1:30
accident. Officer Fischer arrived at the
site at approximately 2:10 p.m. but did not start taking photographs on the 16th
level until around 3:00 p.m. (Tr. 74). It
is unknown what workers, if any, were on the 16th level
approximately 40 minutes after the accident occurred, or what they were doing. Gutierrez and Mendez told San Miguel they
were told to leave their equipment and go down to the street level after the
accident. Officer Fischer was uncertain
whether anyone moved the workers’ equipment between the time of the accident
and his arrival on the 16th level. (Tr. 77-78.)
The
Secretary’s claim that the red straps on the table framework next to Table 27
constitute “the only physical evidence” of where the employees were tied off is
not supported by the evidence. As
indicated supra, Gutierrez told San
Miguel the straps were already attached to the frame when it was lifted to the
16th floor. Peterson, the
regional safety director, provided a plausible explanation for their presence,
stating Ceco’s employees were instructed to hang up
the straps after using them. Police Photograph
14 shows two self-retracting lifeline devices on the 16th level, one of which is
attached to a strap embedded in a column.
None of the witnesses at trial were present on the 16th floor
between the time of the accident and the arrival of Officer Fischer. Officer Fischer testified people were still
on level 16 when he arrived at the site and it appeared some of the equipment
may have been moved.
Gutierrez
and Mendez signed statements in which they stated they were tied off to columns
on either side of Table 27 the day of the accident. Although San Miguel claims Gutierrez admitted
to him the next day that he and Mendez were tied off to the table framework, Gutierrez
sat for an interview attended by San Miguel and stated he was tied off to a
column. This statement was not refuted
or challenged at the interview. The Court
concludes the Secretary failed to establish a violation of the cited standard
by a preponderance of evidence and Item 1 must be therefore vacated.
B.
Item 3
The cited standard, 1926.703(a)(1),
provides:
Formwork shall be
designed, fabricated, erected, supported, braced and maintained so that it will
be capable of supporting without failure all vertical and lateral loads that
may reasonably be anticipated to be applied to the formwork. Formwork which is
designed, fabricated, erected, supported, braced and maintained in conformance
with the Appendix to this section will be deemed to meet the requirements of
this paragraph.
29 C.F.R. § 1926.703(a)(1). The Secretary alleges in Item 3 that Ceco violated this standard because “the formwork was not
designed to withstand vertical and lateral loads due to wind gust.” (Compl. Ex. A at 8 of 11).
For the reasons indicated infra,
the Court concludes the Secretary has met his burden of establishing a prima
facie case for the violation.
(1)
Whether Cited Regulation Applies to Cited Conditions
The cited standard is
found under Subpart Q—Concrete and
Masonry Construction of the Construction Standards, which “sets forth
requirements to protect all construction employees from the hazards associated
with concrete and masonry operations” on construction sites. 29 C.F.R. § 1926.700(a). There is no dispute Ceco
was engaged in construction work activities involving installing and removing
formwork, installing rebar, and placing concrete for decks and columns. The cited standard applies to the cited
conditions.
(2)
Whether Requirements of Cited Regulation Were Violated
The
Secretary argues that even though Ceco properly
included in its formwork design a method that would support lateral loads once the individual tables were tied
together, the company “failed to comply with this standard by failing to
design for lateral loads, including wind loads, while the individual formwork
tables were sitting prior to being tied in to the other tables.” (Sec’y’s Br.,
p. 12) (emphasis added). The Secretary further contends the shape of Table 27
was “sufficiently different than many
tables and [was made] in such a way that its center of gravity was
substantially different than most of the other tables, which required an
engineer to run a calculation to determine how different lateral loads would
affect the table and then design the table to withstand those loads.” (Id.)
The Commission has held
that in any
case brought against an employer under the cited standard,
the
Secretary has the burden to show that, more likely than not, the erected
formwork was not strong enough to support the reasonably anticipated load. The
cited employer can rebut by showing that, more likely than not, the erected
formwork was strong enough to support such a load. If deviations from
manufacturer's specifications are relied on, there must be evidence that they
affected the decking's actual performance or its load-bearing capacity, thereby
making it unable to support the reasonably anticipated load. Under the plain
language of the standard, it is not enough for the Secretary simply to presume
a violation because the deviations would add an element of uncertainty as to
the strength of the decking
Worcester Steel Erectors, Inc., 16 BNA 1409, 1419 (No.
89-1206, 1993).
Gopal Menon has worked as a
structural engineer with Engineering Services in OSHA’s Directorate of
Construction and was qualified as an expert in structural engineering (Pretrial Order ¶ 12, Attach. D). He holds a Master of Science degree with
specialization in solid mechanics and structures. Prior to this case, Menon had investigated at
least 25 structural collapses. OSHA
assigned him to investigate the collapse of Table 27. Menon visited the accident site and viewed
the wreckage of Table 27 on the street and the existing tables in place on the
16th level. He reviewed Ceco’s engineering plans and spoke with Carolina Kumanchik, the Design Engineer (Tr. 194-196).
Menon explained the
differences between Table 27 and the other tables. Other tables were balanced with smaller,
equally-sized cantilevers that were typically about 2 feet (Tr. 201-206). However, the top of Table 27 extended 6 feet
beyond the legs in one direction and only 2 feet beyond the legs in the other
direction, causing it to be eccentrically loaded. Menon opined Table 27 could “topple because
of [the excessive weight], if there is a lateral load. When there is a lateral load or if there is
some load on—an existing load, the load transferred. It would be more always on these posts,” nearest the cantilever
(Tr. 207).
Although Menon testified Ceco’s design specifications were adequate to withstand
concrete pours, he also opined there “was no design . . . for the individual
tables” to withstand any lateral load before
they were tied together (Tr. 214). In
her deposition testimony, Kumanchik agreed Table 27
was designed for lateral loads once it
was tied in with the other tables.
Table 27 “was designed to hold any concrete vertical and some wind
loads. And that also goes into seeing
that everything is in place, including the straps, and everything is tied
down. So getting everything as a whole,
it’s that the table was designed with taking everything into consideration, including the tie downs and everything.” (Kumanchik Deposition, p. 7) (emphasis added). However, Kumanchik
admitted she did not analyze or make any calculations related to lateral loads for
Table 27, believing straps would be enough to resist any lateral load (Id. at 13-14).
Aubrey Dunham, Ceco’s Senior Project Executive for the worksite, also
acknowledged Ceco had no design for Table 27 with
respect to lateral loads before it was tied in with the other tables. (Dunham Dep., pp. 4, 40-41). Ceco’s counsel also
conceded “there was no drawing [of a formwork design for Table 27] by the engineers
that did that. Because there was the Best
Practices. . . .
The Best Practices constitute a design for the anchorage of the table.” (Tr.
185-86.)[9] Nonetheless, Ceco
argues the Secretary failed to establish it was not in compliance with the
cited standard because he presented no evidence “the procedures in the Best
Practices Manual were insufficient to anchor the table against anticipated wind
loads.” (Resp’t’s Br., p. 18.)
Eric
Eder, Ceco’s Director of Engineering, testified Table
27 was a typical table with respect to its “size, the depth that it was, the
height, total height, the stability of it, the location,” and that cantilevered
corner tables were not unusual (Tr. 321, 325).
He testified the tables with the strapping were designed to
withstand sustained winds of 90 miles per hour and gusts of 115 miles per hour
(Tr. 330). Likewise, Ceco
Safety Director Peterson agreed that Table 27 was not “out of the ordinary.”
(Tr. 294).
Instructions
for setting corner panels (such as Table 27) appear in a yellow box on page 27
of Ceco’s Best Practices Manual (Ex. J-1). The note in the yellow box states:
Setting corner
panels: use form spike method or you must use the deck filler option to secure panel before removing
CH-3850 C-Picker. After C-Picker is
removed you MUST use ratchet straps
with ½” drop-in anchors and a shoulder eye bolt to secure all corner
panels. Form spike: Ultimate is 1180# tension, 2425# shear. ½” Drop-in:
Ultimate is 9000# tension, 6640# shear.
(Ex. J-1,
p. 27) (emphasis in original.)
Menon opined why these instructions were inadequate:
The table 27 needs
to be looked at because it has a six-foot cantilever. I don't know what design
-- we asked for the design for this --for the best practice document and this
is something they have for -- that CECO has for all the tables. So we cannot have
something which can be used for all tables apply to table 27. Unless, unless CECO practice says that this
can be used for tables with certain cantilevers, certain geometry. So I did not see any design associated with this best
practice document. And I requested CECO and we never received it.
(Tr.
218-19.)
The Court agrees with the Secretary
that although Ceco properly included in its formwork
design a method that would support lateral loads once the individual tables
were tied together, the company “failed to comply with this standard by failing
to design for lateral loads, including wind loads, while the individual
formwork tables were sitting prior to
being tied in to the other tables.” (Sec’y’s Br., p. 12.) (emphasis
added). Therefore, the Secretary has
established a violation of the cited standard.
(3)
Whether Employees Were Exposed to Hazard Created
Ceco does
not dispute this element of the Secretary’s case. (Pretrial Order, Attach. C,
Stip. 2) It is also
evident the three Ceco employees working on the 16th
level of Fern Street building were exposed to the hazard created by the
collapse of Table 27. Therefore, the
Secretary has established employees were exposed to the hazard created.
(4)
Whether Ceco Knowingly Disregarded Act’s Requirements
As indicated supra, part of the Secretary’s
prima facie case for the violation of an OSHA standard requires proof “that the
employer ‘knowingly disregarded’ the Act's requirements.” ComTran, 722 F.3d at 1307. As for the knowledge element, “[t]he
Secretary may prove that an employer had knowledge of a violation in one of two
ways—(1) by imputing the actual or constructive
knowledge of a supervisor or (2) by demonstrating constructive knowledge based
on the employer’s failure to implement an adequate safety program.” Samsson Constr., Incorp.
v. Sec'y, U.S. Dep't of Labor, 723 F. App'x 695,
697 (11th Cir. 2018) (citing ComTran, 722 F.3d at 1311). San Miguel conceded he found no deficiencies
in Ceco’s training in fall protection or its
enforcement of its work rules (Tr. 160-61).
Therefore, to establish the knowledge element, the Secretary must prove Ceco had knowledge of the violation by imputing the actual
or constructive knowledge of a supervisor.
Even though Ceco’s employees were setting the formwork in conformance
with its Best Practices Manual, which
Ceco considers its design document, Ceco knew its Best Practices Manual did not have a drawing
of a formwork design for Table 27 with respect to lateral loads before it was tied in with the other
tables. Foreman Gutierrez and his two
subordinate two carpenters (Mendez and the Decedent) were in the process of
installing formwork designated as Table 27 when the accident occurred. He directly observed the violative conduct of the
subordinate carpenters. His actual
knowledge is imputed to Ceco. ComTran, 722 F.3d at 1316.
Further, even if
Foreman Gutierrez was an “actual malfeasant,” his “rogue” conduct is imputed to
Ceco since, by
his roguish malfeasance, he exposed not only himself but also his subordinates
to the hazard. Samsson,
723 F. App'x at 698 (citing Quinlan v. Sec’y of Labor, 812 F.3d 832, 841 (11th Cir.
2016)). Therefore, the Secretary has
established Ceco’s knowledge of the violation.[10]
Characterization
of Violation
The Secretary
characterized the violation of the cited standard as serious. A serious
violation is established when there is “a substantial probability that death or
serious physical harm could result [from a violative condition] . . . unless
the employer did not, and could not with the exercise of reasonable diligence,
know of the presence of the violation.” 29 U.S.C. § 666(k). Here, an employee died because of the collapse
of Table 27. The violation is a serious
one.
C.
Item 4
The cited standard in
Item 4, section 1926.703(b)(6), provides that “[a]ll base plates, shore heads, extension devices, and adjustment
screws shall be in firm contact, and secured when necessary, with the
foundation and the form.” 29 C.F.R. §1926.703(b)(6). The Secretary alleges that Ceco violated this standard because “[b]ase
plates, shore heads, extension devices, and adjustment screws were not in firm
contact, and secured when necessary, with the foundation and the form.” (Compl. Ex. A at 9 of 11).
More specifically, the Secretary asserts “the anchorage of the table
form legs to the concrete floor was not properly secured with the required
bolts.” (Id.) For the reasons indicated infra, the Court concludes the Secretary has met his burden of
establishing a prima facie case for a violation.
(1)
Whether the Cited Regulation Applies to the Cited Conditions
Section 1926.703(b)(6) is
found under Subpart Q—Concrete and
Masonry Construction of the
construction standards, which “sets forth requirements to protect all
construction employees from the hazards associated with concrete and masonry
operations” on construction sites. 29 C.F.R. § 1926.700(a). Section 1926.703 is captioned Requirements for cast-in-place concrete. At the time of the fatality, Ceco was engaged in construction work activities involving
the placement of formwork at the worksite.
The cited standard applies to the cited conditions.
(2) Whether the Requirements of the Cited
Regulation Were Violated
Ceco’s Best Practices Manual requires its employees to
secure the formwork tables to the foundation:
Before
the C-Picker is removed, the panel must
be “fastened” to the floor using 3/16” form spikes and a washer pin or you must use the deck filler option (described on page 10). This will reduce the potential for accidental
displacement as the C-Picker is removed. (i.e., catching on the panel and
dragging closer to the edge).
(Ex. J-1, p. 27) (emphasis in original.) The Best Practices Manual does not indicate how many form spikes per base plate should be
used or how many base plates should be secured with form spikes. The Best Practices Manual also requires
formwork to be secured to the foundation to prevent movement from wind with a
ratchet strap[11]
over the top of the formwork and connected to base plates “with ½” drop-in or
cast-in anchors and a shoulder eye bolt,” and it instructs employees to “[c]onsult with engineering for approval to use other methods
for securing perimeter panels.” (Ex. J-1, p. 27.) The strap is held on each side of the table
by connecting it to a base plate screwed into the slab with two wedge bolts on
diagonal corners of the base plate (Tr. 287, 295).
On September 1, 2016, Ceco’s three-man crew used 
-inch
diameter bolts that were embedded 2 inches deep into the concrete. The substituted bolts had no anchors and went
directly into the concrete. The bolts
were reused from floor to floor. In some
cases, Ceco used spike nails or regular nails. The employees drove the spike nails only part
way into foundation to avoid hitting the post-tensioning cable in the slab (Ex.
C-8, pp. 30-34, 38; Tr. 85-86, 93-94).
As
the Secretary notes, Ceco “used nails instead of form
spikes, only put spike nails partially into the slab, substituted wedge screws
that could be used from floor to floor
with half the holding capacity of drop-in anchors with bolts, and in
some places substituted nails or form spikes for the drop-in anchors with a
tiny fraction of the holding capacity.” (Sec’y’s Br., pp. 16- 17) (citing Tr. 85-6, 93-4; Ex. C-8 at
29-38). Ceco’s
senior project executive, Aubrey Dunham, conceded the use of spike nails was
improper. “No, we should be using
bolts.” (Dunham Dep., p. 46.) San Miguel also testified Kumanchik
told him the use of spike nails was improper (Tr. 71).
Ceco
argues there is “no dispute that the base plates at issue were in firm contact
with the deck.” (Resp’t’s Br., p. 20.) However, as indicated supra, the cited standard requires that base plates “shall be in firm contact, and secured when necessary, with the foundation and the form.” 29 C.F.R. §1926.703(b)(6)
(emphasis added). According
to Ceco’s Best Practices Manual, the company
considered securing the base plates to the foundation to be necessary and
provided specific instructions to its employees to do so. Any deviation from the Best Practices Manual required approval from a Ceco engineer. Ceco’s employees deviated from the Best Practices Manual without consultation with an engineer. The Court concludes Ceco
violated the cited standard.
(3)
Whether Employees Were Exposed to the Hazard Created
The
three Ceco employees were working next to the edge of
the 16th level. Failure to
properly secure the base plates created a hazard of Table 27 moving and
striking employees or dragging them off the edge of the building. Here, the nails used in two of the four legs
and the bolts used to anchor the ratchet straps all pulled out of the slab when
Table 27 fell off the building. The
employees were exposed to the hazard.
(4)
Whether the Employer Knowingly Disregarded the Act’s Requirements
Foreman Gutierrez was working with
the two carpenters as they placed the tables and drove in the spike nails and
bolts. He directly observed the
violative conduct. His actual knowledge
is imputed to Ceco.
ComTran,
722 F.3d at 1316. Further, as indicated supra, even if Foreman Gutierrez was an
“actual malfeasant,” his “rogue” conduct is imputed to Ceco
since he exposed not only himself but
also his subordinates to the hazard. Samsson, 723 F. App'x at 698. Therefore, the Secretary has established Ceco’s knowledge of the violation.
Characterization
of Violation
The Secretary
characterized the violation as serious. As
indicated supra, a serious violation
is established when there is “a substantial probability that death or serious
physical harm could result [from a violative condition] . . . unless the
employer did not, and could not with the exercise of reasonable diligence, know
of the presence of the violation.” 29 U.S.C. § 666(k). Here, an employee died because of the collapse
of Table 27. The violation is also a serious
one.
IV.
PENALTY DETERMINATION
“In assessing penalties,
section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the Commission to
give due consideration to the gravity of the violation and the employer's size,
history of violation, and good faith.” N.
E. Precast, LLC; & Masonry Servs., Inc, 26 BNA OSHC 2275, 2282 (Nos.
13-1169 and13- 1170, 2018) (citation
omitted). “Gravity is a principal
factor in the penalty determination and is based on the number of employees
exposed, duration of exposure, likelihood of injury, and precautions taken
against injury.” Id. (citations omitted).
The Secretary and Ceco stipulated that on the day of the accident, Ceco employed approximately 1,800 people (Pretrial Order,
Attach. C, Stip. 3). Therefore, Ceco is not entitled to any penalty reduction based upon
size. The Secretary cited Ceco for OSHA violations within the previous five years
(Tr. 90-91). Therefore, Ceco is also not entitled to any penalty reduction based
upon history. Ceco
had a written safety program and the Court credits Ceco
with good faith.
However, the gravity of
the violations are high, and their severity outweighs
the other factors. An employee was
killed, and two other employees were exposed to the hazards created
by the collapse of Table 27. The likelihood of injury was high. “‘Gravity, unlike good faith, compliance
history and size, is relevant only to the violation being considered in a case
and therefore is usually of greater significance. The other factors are
concerned with the employer generally and are considered as modifying factors.’”
Natkin & Co. Mech. Contractors, 1 BNA OSHC
1204, 1205 n.3 (No. 401, 1973) (quoting
N. E. Precast, 26 BNA OSHC at 2282). Giving due consideration to the gravity of
the violation and Ceco’s size, history of violation,
and good faith, the Court finds the Secretary’s proposed penalty of $12, 675.00
for Items 3 and $12, 675.00 for Item 4 is appropriate. Accordingly,
V.
ORDER
IT
IS HEREBY ORDERED THAT Item 1 of the citation is VACATED and no penalty is assessed.
IT
IS FURTHER ORDERED THAT Item 3 of the citation is AFFIRMED and a penalty of $12, 675.00
is assessed.
IT
IS FURTHER ORDERED THAT Item 4 of the citation is AFFIRMED and a penalty of $12, 675.00
is assessed.
SO ORDERED.
/s/
John B. Gatto
John B. Gatto, First Judge
Dated: October 26, 2018
Atlanta,
GA