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

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

Washington, DC 20036-3457

 

 

SECRETARY OF LABOR, 

 

 

 

                Complainant,

 

 

 

v.

 

 

OSHRC DOCKET NO. 12-2142

MEADOWS CONSTRUCTION COMPANY, LLC,

 

 

 

                Respondent.

 

 

 

Appearances:              Kevin E. Sullivan, Esquire

                                    U.S. Department of Labor, Office of the Solicitor, Boston, Massachusetts

                                    For the Secretary

 

                                    Stephen P. Kolberg, Esquire

                                    Kolberg & Schneider, PC, Boston, Massachusetts                                                                            For the Respondent

 

Before:                                    Dennis L. Phillips

                                    Administrative Law Judge

 

                                                        DECISION AND ORDER

 

This proceeding is before the Occupational Safety and Health Review Commission (“the Commission” or “OSHRC”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (“the Act”). On July 10, 2012, upon being notified by email of alleged safety violations by a third party, unidentified complainant (“informer”), the Occupational Safety and Health Administration (“OSHA”) inspected a multi-employer worksite at 158 Rogers Street, Lowell, Massachusetts, 01852 (“worksite”) where Meadows Construction Company, LLC (“Respondent” or “Meadows”) was performing roofing work on a public school building. Footnote As a result of the inspection, OSHA issued Respondent one six-item serious Citation and one two-item repeat Citation, alleging one violation of the Act’s general duty clause as well as several violations of OSHA’s construction standards, and proposing a total penalty of $32,800. Footnote Respondent filed a timely notice of contest, bringing this matter before the Commission.

After the Secretary filed his initial complaint in November 2012 and Respondent filed its answer, the Secretary filed an unopposed motion in March 2013 to amend the complaint with regard to the standard cited in Repeat Citation 2, Item 2, and also to amend the complaint to reflect Respondent’s operation of its general construction business as a limited liability company (“LLC”) (“First Motion to Amend”). Footnote The First Motion to Amend was granted, the Secretary filed a second complaint and Respondent filed a second answer. Subsequently in June 2013, the Secretary filed another motion to amend the complaint, this time with regard to the alleged general duty clause violation in Serious Citation 1 Item 1, alleging in the alternative a violation of a specific standard (“Second Motion to Amend”). Footnote The Second Motion to Amend was granted, and the Secretary filed a third complaint and Respondent filed a third answer. In all of its answers, Respondent set out the same 14 affirmative defenses. Footnote The hearing in this case took place on July 16 and 17, 2013, in Boston, Massachusetts. Both parties have filed post-hearing briefs and Respondent filed a reply brief.

Jurisdiction

Respondent stipulates that it was a general contractor engaged in interstate commerce at the Lowell worksite. (Resp’t Br. at 1; Answer at ¶¶ 2-3.) Based upon the record, the Court finds that Respondent, at all relevant times, was engaged in a business affecting commerce and was an employer within the meaning of §§ 3(3), 3(5) of the Act, 29 U.S.C. §§ 652(3), 652(5). The Court concludes that the Commission has jurisdiction over the parties and the subject matter in this case. (Answer at ¶ 1, where Respondent admits to jurisdiction.)

 

 

Background

      Meadows is a construction company that provides general contracting and subcontracting services for state, public, and federal housing projects. (Tr. at 386.) In July 2012, Meadows had a contract with the city of Lowell, Massachusetts, and was the general contractor replacing the slate roof at Moody Elementary School, which was occupied with teachers and administrators preparing for the upcoming school year. Footnote (Tr. at 77, 392-93; Ex. CX-1 at 2.) At this time, Meadows employed 50-60 people divided among several worksites. (Tr. at 441.) According to Meadows, only two of its supervisory employees and one of its owners were on the Lowell worksite on the day of the OSHA inspection. These individuals were: Michael Meadows, Respondent’s joint owner, Footnote his son, Jared Meadows, one of the company’s supervisors, Footnote and Gilson Oliveira, a Meadows foreman. Footnote (Tr. at 359-360, 375, 377, 382, 386, 389, 392; Exs. CX-1 at 2, R-G, at 5.) The rest of the workers on the worksite, according to Respondent, were subcontractors to Meadows, and were contracted under the “Massachusetts file sub-bid law,” which filtered the possible subcontractors that Meadows could choose from when awarding its subcontracts. (Tr. at 77-80; Exs. R-D, R-E, R-F.) Netco Management employee, Harold “Bud” Black, contracted by the city as Lowell’s “Clerk of Works,” would regularly be present on the worksite to observe the work being performed on behalf of the city. (Tr. at 80-81, 317.) Mr. Black was usually present at the worksite for four hours per day, but the record does not establish that he was on the worksite on the day of the OSHA inspection. Footnote (Tr. at 318.)

            Compliance Officer (“CO”) Donald Naim Footnote and Safety and Health Assistant Adam Henson Footnote arrived at the worksite in the early afternoon around 1:00 p.m., and parked on an unidentified street west of the building. (Tr. at 95, 338.) They walked to the entrance to the worksite and along the way observed workers on the roof of the school building and on an adjacent yellow-in-color, Caterpillar TH83 telehandler’s (telehandler) platform without fall protection. Footnote (Tr. at 123-128, 225, 229, 275, 282, 290, 296, 407; Ex. CX-23.) The building was four stories high, and 100 feet long by 60 feet wide. (Tr. at 125.) The building’s roof had numerous dormers attached to it, and portions of it were steep-sloped and portions were low-sloped. Footnote (Tr. at 125.) The workers who were on the roof and the telehandler’s platform were approximately 60 feet above the ground. (Tr. at 126.) At the time of the OSHA inspection, the workers were accessing the roof from the platform of the telehandler, which was located on the north side of the building. (Tr. at 266; Ex. CX-52.) On the west side of the building, in an alcove, a single power cable was attached to the building about 20 feet below the roof line. (Tr. at 178, 413; Ex. CX-41.) Also near the west alcove was a blue-in-color, Genie telescopic boom lift – Model S-65 (telescopic boom lift) - that Respondent rented from NES Rentals. Footnote (Exs. CX-3, CX-12, at 2, CX-41, CX-49, R-L, at 3, R-M, at 8.) Footnote

            The OSHA inspectors entered the worksite on the east side of the building that was “fairly close” to the telehandler that was around the corner on the north side. (Tr. at 132, 291.) CO Naim held up his credentials and asked to meet with those in charge. (Tr. at 127-128.) CO Naim testified that “every employee that I saw, I asked who was in charge and I was pointed to Michael Meadows and Jared Meadows.” (Tr. at 128.) Michael Meadows and Jared Meadows met with the OSHA inspectors by the telehandler. Footnote (Tr. at 292, 401.) CO Naim testified that Michael Meadows and Jared Meadows also told him that “they were in charge.” (Tr. at 130, 197-198.) He testified that Michael Meadows told him that “I’m responsible for all the employees on the site.” (Tr. at 198, 224, 251.)

            When entering the worksite and during their meeting with Michael and Jared Meadows, CO Naim and Henson observed workers using an unguarded power table saw near the entrance to the worksite on the school building’s east side. (Tr. at 132, 145, 283-285.) CO Naim then toured the worksite with Jared Meadows and foreman Gilson Oliveira. Footnote (Tr. at 131-132.) During this time, CO Naim noted that the power table saw was plugged into an extension cord that did not have ground fault circuit interrupter (“GFCI”) protection, and that a separate relocatable power tap, which was not intended for use at construction sites, was on the worksite and two items, one of which was an extension cord that ran up to the roof of the building, were plugged into it. Footnote (Tr. at 170-173, 204-207.) Mr. Henson observed workers on the ground stepping through debris that had protruding screws. Footnote (Tr. at 275-276, 281.)

Threshold Issues

Respondent’s Request for Reconsideration of the Court’s Denial of its Motion for Summary Judgment

 

      In its post-hearing brief, Respondent asserts “that a post-trial reconsideration of Meadows’ motion [for summary judgment] is warranted” because the Secretary disclosed for the first time at trial that Mr. Henson was not an OSHA compliance officer on July 10, 2012. (Resp’t. Br. at 2-3.) In its reply brief, Respondent alleges that the Secretary “clearly and intentionally” used “chicanery” to “deceive this Court” as to Mr. Henson’s status at the time of the OSHA inspection. Respondent argues that such chicanery should result in the dismissal of the amended complaint and all citations. (Resp't. Reply Br. at 9-10.)  

      A motion for reconsideration does “not necessarily fall within any specific Federal Rule” and, therefore, in such motions the movant “rel[ies] on ‘the inherent power of the rendering district court to afford such relief from interlocutory judgments ... as justice requires.” Footnote See Greene v. Union Mut. Life Ins. Co., 764 F.2d 19, 22 (1st Cir.1985) (citation omitted); Bowater Inc., No. Civ. 03-227-B-C, 2005 WL 3021979, at *1 (D. Me. Nov. 10, 2005). A motion for reconsideration should not give a motion’s losing party the opportunity to simply reargue losing points. Moreover, revisiting issues already addressed or advancing new arguments or supporting facts which were otherwise available when the original motion was under consideration by the Court are not valid purposes of a motion to reconsider and are likewise inappropriate. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991) (citation omitted); see also Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir.1995) (“It is not the purpose of allowing motions for reconsideration to enable a party to complete presenting his case after the court has ruled against him.”). The broad “interests of justice” standard, which helps guide the Court's analysis, is highly discretionary. See Greene, 764 F.2d at 22; United States v. Roberts, 978 F.2d 17, 22 (1st Cir.1992) (noting that the interests of justice test “covers considerable ground”). In conducting this analysis, this court may consider the following, nonexhaustive list of factors: (1) the nature of the case, (2) the degree of tardiness, (3) the reasons underlying the tardiness, (4) the character of the omission, (5) the existence vel non of cognizable prejudice to the nonmovant in consequence of the omission, (6) the effect of granting (or denying) the motion on the administration of justice, and (7) whether the belated filing would, in any event, be more than an empty exercise. Winters v. FDIC, 812 F.Supp. 1, 3 (D.Me.1993) (quoting Roberts, 978 F.2d at 21-22).

      Here, the record shows that the date on CO Naim’s credential card had expired June 20, 2012 prior to the inspection of the Lowell worksite. (Tr. at 224-225; Ex. R-A.) Before the trial, Respondent filed a Motion for Summary Judgment based on Naim’s expired credential card. See Respondent Meadows Construction Co. LLC’s Motion for Summary Judgment Against Complainant under F.R.C.P. 56(2), Or Alternatively, Its Motion in Limine (June 21, 2013)(“Motion for Summary Judgment”). The Motion for Summary Judgment was denied. See Order Denying Respondent’s Motion for Summary Judgment, or Alternatively, its Motion In Limine (June 28, 2013). In its post-hearing briefs, Respondent requests that its Motion for Summary Judgment be reconsidered because: (1) OSHA had misled the Court regarding Mr. Henson’s “true status” as a safety assistant during the inspection, and (2) Mr. Henson’s “presence at the site did not raise a genuine issue of material fact.” (Resp’t Br. at 2-3, 30-32; Resp’t Reply Br. at 9-10.

      According to Respondent, OSHA, in an “untimely disclosure” at the hearing, revealed Mr. Henson’s “true status” as a safety assistant at the time of the Lowell inspection. (Resp’t Br. at 2-3.) In doing so, Respondent claims that OSHA misled the Court in its response to Respondent’s Motion for Summary Judgment by submitting a “brief and affidavit to this Court which misleadingly assert[ed] that Adam Henson’s presence on the worksite create[d] a genuine issue of material fact with respect to the credentials issue.” (Resp’t Reply Br. at 9.)

            First, the Court was not misled. OSHA never asserted that Mr. Henson was a credentialed Compliance Officer at the time of the Lowell inspection. Second, at the time of Respondent’s summary judgment motion, Mr. Henson’s presence at the worksite was a material fact in dispute, not because he was a safety assistant and not a credentialed Compliance Officer, but because, according to the affidavit submitted by Michael Meadows in support of Respondent’s Motion for Summary Judgment, Meadows asserted, and OSHA disputed, that CO Naim “was the sole individual that interviewed people and investigated the Project site.” See Michael Meadows Affidavit dated June 20, 2013; Complainant’s Memorandum In Opposition To Respondent’s Motion for Summary Judgment at 2 (June 27, 2013) (“OSHA employee Adam Henson was also at the project site assisting in the investigation and interviewing workers.”). Third, Respondent has not provided any support, legal or otherwise, as to how it is appropriate under the Federal Rules of Civil Procedure or Commission rules for a party, in its post-hearing brief, to make a post-trial request for the Court to reconsider its ruling denying a motion for summary judgment. Finally, any such motion is untimely per the Court’s Scheduling Order requiring all motions, including in limine, to have been submitted no later than 25 days before the commencement of the hearing. See Notice of Hearing and Scheduling Order (Jan. 23, 2013).

            After weighing the factors suggested in Roberts, the Court is persuaded that the interests of justice do not justify the Court granting the requested reconsideration. Respondent’s Motion for Reconsideration is without merit regardless of whichever legal standard applies to its disposition. The Court finds that there is no evidence that the Secretary used chicanery to deceive the Court as to Mr. Henson’s status at the time of the OSHA inspection. The issue has been reviewed by the Court given the development of the record during the trial and Respondent’s request in its post-hearing brief. For the reasons already set forth in the Order denying the Motion for Summary Judgment and herein, the Court affirms its denial of Respondent’s Motion for Summary Judgment and denies Respondent’s Motion for Reconsideration of the Court’s denial of its Motion for Summary Judgment based on CO Naim’s expired credentials.

Multi-Employer Doctrine

            The Secretary claims that Meadows was the general contractor on the Lowell worksite and was therefore responsible for ensuring that the work done on the worksite was “conducted in a safe manner.” (Sec’y Br. at 12.) The Secretary’s claim falls under the multi-employer worksite doctrine, which is set forth in Summit Contractors, Inc., 23 BNA OSHC 1196 (No. 05-0839, 2010). In Summit, the Commission held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act . . . to protect not only its own employees, but those of other employers ‘engaged in the common undertaking.’ ” Summit, 23 BNA OSHC at 1205 (citations omitted). The Commission explained that a “controlling” employer is one in the position “where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.” Id. A “creating” employer is one that “creates a violative or hazardous condition [and] is [therefore] obligated to protect its own employees as well as employees of other contractors who are exposed to the hazard.” Id.

Of the fourteen affirmative defenses Respondent raised in its Answers to the Secretary’s Complaints, the following relate to the multi-employer doctrine that: (4) it was not legally responsible for those who allegedly violated the cited standard, (7) it neither caused the alleged hazards to exist nor did it directly control the conditions causing the hazard, and (13) the correct employer was not cited. In its prehearing statement, Respondent set forth the factual bases for these affirmative defenses: Mr. Ederson Pinto, thought by CO Naim to be a worker at the worksite, was not on any of the subcontractor payrolls; a subcontractor who was cited, LN Construction Co., was not directed or directly supervised by Meadows; and the power table saw and power tap at issue in the citation items were not Meadows’ property. (Resp’t Pre-Hr’g Statement at 6, 8.) In its post-hearing briefs, Respondent further claims: (1) Masonworks, LLC, the subcontractor who operated the power table saw at issue in Citation 1 Item 2, was not a “filed sub-bidder which Meadows could vet, select or reject depending on its safety record, experience and qualifications, per the normal procedures of the Massachusetts bid law,” and (2) the relocatable power tap at issue in Repeat Citation 2 Item 1 was most probably owned by either the window or the asbestos abatement contractors, neither of which subcontracted with Meadows. Footnote (Resp’t Br. at 13-14, 23.)

It is undisputed that Meadows was the general contractor on the Lowell worksite and that subcontractors were also present during the OSHA inspection. With respect to these subcontractors and the worksite as a whole, the Court finds that the record shows that Meadows had overall supervisory authority and control of the work functions being performed. General contractors at construction sites, who have the ability to do so, must prevent or abate hazardous conditions created by subcontractors, through the reasonable exercise of supervisory authority, regardless of whether the general contractor created the hazard or whether the general contractor’s own employees were exposed to the hazard. See Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009). First, the record shows that Meadows was in charge of safety. Footnote Meadows required its own employees and subcontractors to follow its safety program specifically developed for the project, which was kept on site for everyone to use and follow. (Tr. at 435-437; Ex. R-O). Footnote The safety program plainly states that all subcontractors must follow it. (Ex. R-O at “Responsibilities: Subcontractors and Suppliers”; “Subcontractors/Outside Service Providers.”) The record also shows that Meadows communicated its safety rules, using an interpreter if necessary, to everyone on the worksite during daily coffee breaks. (Tr. at 435-437.) The safety program included topics such as fall protection and electrical safety. It also included a disciplinary program. (Ex. R-O at “Disciplinary Program.”) Additionally, Bud Black, who represented the city of Lowell, testified that he reported any safety concerns directly to Respondent. (Tr. at 319-320, 330-331.) Safety Net, Respondent’s safety consultant, developed Meadows’ safety program and provided it to Meadows. (Tr. at 433-435.) Netco employee, Thomas Kondol, served as the city of Lowell’s project manager (“PM”). Mr. Black worked for PM Kondol. PM Kondol testified that as the worksite PM he was the “interface between the contractor, the designer, and the school district, which is – who the work was being performed for.” He also testified that the subcontractors to Respondent at the worksite performed “work as directed by the general contractor [Respondent].” (Tr. at 77, 80.)

Second, the record shows that Respondent was in charge of the flow of work being done on the Lowell worksite. Michael Meadows and Jared Meadows testified that Jared Meadows coordinated all of the work being done by the subcontractors. (Tr. at 359; 393-395.) Michael Meadows testified that foreman Gilson Oliveira was in charge of deliveries, and would “lift[] stuff up to the guys on the roof,” who were, according to Jared Meadows, employees of subcontractors Masonworks, LLC and LN Construction Co. (Tr. at 375, 392.) Michael Meadows also testified that Jared Meadows would coordinate the work of non-subcontractors; including the work of the window and asbestos contractors. (Tr. at 393.) CO Naim also asserted that Michael Meadows also told CO Naim that he [Michael Meadows] “controlled the work activities of the employees (Means and manner by which the work is accomplished) that are the subject of each of the citations issued. He [Michael Meadows] also indicated that he [Michael Meadows] gives additional projects to these workers, controls their hours and has the authority to remove or discipline these workers.” See Secretary’s Response to Interrogatory No. 10, at Ex. R-M, at 7.)

Finally, the record shows that the subcontracted workers viewed the Meadows supervisors as those that controlled the project. CO Naim testified that all the workers on the site that he spoke to indicated that Michael Meadows and Jared Meadows were “in charge.” The only supervisors at the worksite at the time of the OSHA inspection were Meadows’ supervisors. (Tr. at 128, 142-143.) This testimony was unrebutted. Based on the above facts, the Court finds that Respondent in general controlled the worksite in such a way as to be able to detect and abate any violative conditions that developed on the worksite. Consistent with Summit, the Court finds Respondent to be a “controlling” employer that had a duty under the Act to protect not only its own employees, but those of LN Construction Co., Masonworks, LLC and the window and asbestos abatement contractors that were also working at the worksite. Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994) (“An employer is responsible for violations of other employers where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”). With respect to the individual citation items where a Meadows subcontractor was involved with or exposed to the alleged hazard, the Court also specifically finds, as discussed below in the sections devoted to the specific citation items, that the record supports that Respondent had control over the working conditions surrounding the alleged violations, but failed to abate them. Footnote

Selective Prosecution

In its answers, Respondent claimed that OSHA had engaged in selective enforcement against Meadows due to ongoing issues Respondent had with union representatives. See Fourteenth Affirmative Defense in Resp’t Answers, Respondent’s response to the Secretary’s Interrogatory No. 22. (Ex. CX-1, at 10.) The Commission places the burden of showing selective prosecution on respondents. Altor Inc., 23 BNA OSHC 1458, 1460 n.2 (No. 99-0958, 2011). Respondent alleges that union harassment has “effectively led to repeated OSHA inspections and selective enforcement.” Footnote Fourteenth Affirmative Defense in Resp’t Answers. Respondent alleges that OSHA selected it for inspection merely because the company was non-union. When a Respondent raises the spectre that it has been a victim of selective enforcement of the Act, it is alleging that it has been deprived of its right to due process under the law. Relief is available only if the decision to prosecute is shown to have been deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification. Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3 (1985). Footnote Relief may also be available if the prosecutorial decision was vindictive and unreasonably initiated with the intent to punish the employer for its exercise of a constitutionally protected right. Footnote See Altor, Inc., No. 99-0958, 2001 WL 36358380, at **32-33 (O.S.H.R.C.A.L.J. December 17, 2001).

There is nothing in this record to support the conclusion that the Secretary’s conduct with regard to OSHA’s July 10, 2012 inspection or the issuance of the two citations at issue was based on an illegal premise or Respondent’s non-union status, discriminatory, unreasonable or an attempt to prevent Respondent from exercising a protected right, or to punish Respondent for exercising any such rights. Footnote The record does not establish that OSHA was aware, before deciding to conduct its inspection, of the absence of any union personnel at the worksite. Footnote The record fails to establish that the choice of Respondent’s worksite for inspection on July 10, 2012 was based on anything other than a routine decision to investigate for fall protection violations in response to OSHA’s receipt of a complaint and in accordance with OSHA’s fall emphasis program. Footnote Respondent's has not met the standard required by the selective prosecution or vindictive prosecution affirmative defenses. It produced no credible evidence at the hearing that OSHA violated its rights, due process or otherwise, by conducting an inspection of Respondent’s worksite on July 10, 2012, or that OSHA's July 10, 2012 inspection was unreasonable. Respondent has not demonstrated that OSHA acted with any discriminatory or retaliatory motive in citing Respondent for violations observed by CO Naim and Mr. Henson on July 10, 2012. The Court finds that no such motive existed. Nothing in the record identifies who submitted the anonymous complaint to OSHA. Similarly, nothing in the record establishes that the Secretary was not within his prosecutorial discretion when he issued the citation items in this case. Altor Inc., 23 BNA OSHC at 1460 n.2. The Secretary has demonstrated the hazardous conditions that existed at the worksite on July 10, 2012 for which Respondent is responsible with regard to Citation 1, Items 2, 3 and 6, and Citation 2, Items 1 and 2. It was entirely proper for the Secretary to cite Respondent for these violations that CO Naim and Mr. Henson observed on July 10, 2012. Respondent has not demonstrated selective or vindictive prosecution. Accordingly, the affirmative defenses of selective or vindictive prosecution are rejected.   

            Finally, the Court makes note that the record calls into question Respondent’s level of cooperation during the OSHA inspection. The record shows that neither OSHA inspector was able to meaningfully interview any non-supervisory worker on the worksite, except for perhaps Mr. DaSilva. (Tr. at 142-143, 289-290.) As an example, CO Naim testified that as he attempted to interview a worker, Jared Meadows got upset and intimidating, and stated that the worker “need[ed] to get back to work. I’m paying him $50/hour.” As a result, CO Naim had difficulty interviewing that worker. (Tr. at 222.) Additionally, when all the workers “left the yard” during the OSHA inspection, Mr. Henson testified that no reason was given to him. Footnote (Tr. at 289-290.)

Secretary’s Burden of Proof

            In order to establish a violation of a safety or health standard, the Secretary must prove by a preponderance of the evidence: “(1) that the cited standard applies; (2) that there was a failure to comply with the standard; (3) that employees had access to the violative condition; and (4) that the employer had actual or constructive knowledge of the violation.” P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n,, 675 F.3d 66, 72 (1st Cir. 2012) (citation omitted); see also Astra Pharm. Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). “A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979).

Discussion

Citation 1, Item 1

This citation item alleges a violation of the general duty clause, or in the alternative, a violation of 29 C.F.R. § 1926.602(c)(1)(vi). Respondent initially argues that the alleged § 5(a)(1) violation should be dismissed because a violation of a specific standard is alleged. (Resp’t Br. at 32.) The Court does not need to address Respondent’s argument because the Secretary has not addressed the general duty clause theory in his post-hearing brief. The Secretary’s allegation regarding the general duty clause violation is deemed abandoned. L&L Painting Co., 23 BNA OSHC 1986, 1989 n. 5 (No. 05-0055, 2012) (item not addressed in post-hearing briefs deemed abandoned), Midwest Masonry Inc., 19 BNA OSHC 1540, 1543 n. 5 (No. 00-0322-2001) (arguments not raised in post-hearing briefs generally deemed abandoned).

The Secretary alleges in the alternative a violation of § 1926.602(c)(1)(vi), which states in pertinent part: “All industrial trucks in use shall meet the applicable requirements of design, construction, stability, inspection, testing, maintenance, and operation, as defined in American National Standards Institute B56.1-1969, Safety Standards for Powered Industrial Trucks.” The Secretary alleges that Meadows violated this standard when Jared Meadows, the operator of the telehandler on the north side of the building, left the telehandler “unattended.” (Sec’y Br. at 15-16.) Respondent claims that the Secretary failed to establish applicability, noncompliance and exposure. Footnote (Resp’t Br. at 9-12, 32-40; Resp’t Reply Br. at 5, 7.)

Merits

With regard to applicability, Respondent argues that the cited standard applies only to “earthmoving equipment,” pointing to § 602(a), and claims that the telehandler is actually a “rough terrain forklift.” (Resp’t Br. at 33; Resp’t Reply Br. at 5.) Respondent’s argument is misplaced because the cited standard does not fall under § 602(a), it falls instead under § 602(c), “Lifting and hauling equipment (other than equipment covered under subpart N [Helicopters, Hoists, Elevators, and Conveyors] of this part). (1) Industrial trucks shall meet the requirements of § 1926.600 and the following: ….” 29 C.F.R. § 1926.602(c). OSHA has issued a standard interpretation letter explaining that § 602(c) applies to rough-terrain forklifts and powered industrial trucks. Footnote OSHA Standard Interpretation Letter, “Applicable Standards to Lifting Personnel on a Platform Supported by a Rough Terrain Forklift: Re: §§ 1926.451(c)(2)(iv) and (v) and 1926.602(c),” (Nov. 27, 2001). (Ex. CX-25.) Both parties therefore agree that the telehandler was a rough-terrain forklift (powered industrial truck). See Complainant’s Memorandum In Support Of Motion To Amend Citation And Complaint (June 11, 2013) (referring to the machine in question as a “powered industrial truck” and “industrial truck.”). The Court finds that the cited standard applies. Footnote

Respondent next argues that the Secretary failed to establish non-compliance with the cited standard. (Resp’t Br. at 35-40; Resp’t Reply Br. at 7.) The cited standard incorporates by reference ANSI Standard B56.1-1969, subsection E of section 603, which states that “[w]hen leaving a powered industrial truck unattended, load engaging means shall be fully lowered, controls shall be neutralized, power shut off, brakes set, key or connector plug removed.” (Ex. CX-26 at 2) (emphasis added). Respondent argues that the machine’s “outriggers [] were fully down, with wheels off the ground,” claiming essentially that the brakes were set. (Resp’t Br. at 36.) Even assuming so, and assuming that the controls were neutralized, power was shut off, and the key or connector plug was removed, the record still shows that the load engaging means, i.e., the personnel platform, was undisputedly extended all the way to the roof of the building, and so it was not fully lowered. Therefore, the issue is whether the telehandler was left “unattended.” Footnote

            The Secretary claims that Respondent left the telehandler unattended because Jared Meadows, the operator of the telehandler, was 25 feet or more away from the telehandler. (Sec’y Br. at 15-16.) This distance, according to the Secretary, violated Review Commission precedent, which has interpreted the word “unattended” in the context of the cited standard as being 25 feet or more away. See A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 2001 (No. 92-1022, 1994). Footnote Consistent with the decision in A.L. Baumgartner, the Court relies upon the general industry standard at 29 C.F.R. § 1910.178(m)(ii) for the definition of “unattended.” Footnote In A.L. Baumgartner, the Review Commission stated that a CO’s testimony of his observation and estimate of distance is enough to establish non-compliance, in the absence of rebutting evidence. A.L. Baumgartner, 16 BNA OSHC at 2001. In contrast to A.L. Baumgartner, the Court finds that the testimony of Michael Meadows and Jared Meadows “specifically rebutted” the observations and estimates by CO Naim and Mr. Henson that Jared Meadows was about 30 feet from the telehandler. Footnote

            According to CO Naim, Jared Meadows first approached him from the direction of the west side of the building and was more than 25 feet away from the telehandler. (Tr. at 128; 237; 447-448; 452.) CO Naim also testified that the telehandler was blocking his field of view, and so, because he could not see Jared Meadows definitively, he assumed that Jared Meadows was initially on the other [west] side of the building before approaching him. Footnote (Tr. at 452.) According to Mr. Henson, Jared Meadows approached them from approximately 30 feet away, Footnote but “was on the same [north] side of the building as the truck [telehandler].” (Tr. at 292.) The Court finds Mr. Henson’s testimony that Jared Meadows was at the Building’s north side to be significant and corroborates the testimony of Messrs. Jared and Michael Meadows. Mr. Henson testified that Jared Meadows told him that he was appropriately monitoring the telehandler and the men up on the roof. Footnote (Tr. at 293.) According to Jared Meadows, he was 10-15 feet away from the telehandler, and he was not “on the other [west] side of the building,” because he worked where the workers were, on “just the two sides” [north and east] of the building. Footnote Jared Meadows testified that he could see both the telehandler and its platform from where he was positioned. Mr. Henson also testified that there was no work being done along the building’s west side at the time the OSHA inspection began. Michael Meadows also testified that there was no work for Jared Meadows to do on the ground on the opposite [west] side of the school. Footnote (Tr. at 279-280, 361-363, 408). And according to Michael Meadows, who was standing next to the telehandler, Jared Meadows was “touching the tire” of the telehandler when CO Naim first approached them. (Tr. at 400-401.) The evidence shows that the north side of the building was about 60 feet in length. The Court infers that the width of the telehandler was between about 7 to 8 feet. Footnote Photograph exhibit CX-5 shows that the telehandler was positioned more toward the western portion of the north side of the building. The Court finds the testimony of both Michael Meadows and Jared Meadows that Jared Meadows was within 15 feet of the telehandler and not coming from the opposite, west side of the school when CO Naim first approached him, to be credible based upon their demeanor during their testimony on this matter and their basis of knowledge; they knew best where they were standing when the OSHA inspectors first came upon them. Mr. Henson confirmed that Jared Meadows was positioned at the building’s north side. CO Naim’s testimony that Jared Meadows was at the building’s east side was based upon a mere assumption on his part. The Court further finds that the telehandler and its platform remained in Jared Meadows’ view when he was first approached by CO Naim and Mr. Henson. Footnote (Tr. at 362.)

            The record shows that CO Naim’s field of view of the direction where Jared Meadows was coming from was blocked by the telehandler. The record also shows that CO Naim and Mr. Henson turned the building’s northeast corner together, calling into question whether the telehandler also blocked Mr. Henson’s view. Footnote The Court finds that the obstructed view may have affected their estimates of how far they believed Jared Meadows was from the telehandler when they first came upon him during the inspection. In view of the above, the Court finds that the Secretary has failed to establish non-compliance with the standard. This citation item is vacated.

Citation 1, Item 2

            This citation item alleges a violation of 29 C.F.R. § 1926.300(b)(1), which states in pertinent part: “When power operated tools are designed to accommodate guards, they shall be equipped with such guards when in use.” The Secretary claims that Respondent violated this standard because workers used a power table saw without a guard. Footnote (Tr. at 132-133; Sec’y Br. at 6-8, 16.) Respondent does not deny that its workers were using an unguarded power table saw, but argues that the given guard would not fit on the table saw for “bevel cuts” or “angle cuts” that were required for the job. (Resp’t Br. at 41.)

Multi-Employer Doctrine

            As noted above, the Court considers Meadows a controlling employer of this multi-employer worksite. As a controlling employer, Meadows had the responsibility of monitoring potential hazards with reasonable diligence on the worksite and correcting them. Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The Court notes that photographs from the inspection show that the worker operating the table saw was wearing a “Meadows” t-shirt, suggesting that the unknown worker actually worked for Meadows. (Tr. at 141-142; CX-7.) The Court also notes that Jared Meadows referred to the guard and the use of the table saw as if he had some say in the matter as follows:

Q: Was there a guard nearby, do you know?

A.  Yes, we did have the guard.

Q.  And what was the purpose of having the  guard nearby?

A.  It just -- well, we needed to take the guard off so we could make the bevel cuts because it, obviously, doesn't fit on –

Q.  Okay.

A.  -- when you're making the angled cuts.

Q.  And if there were straight cuts to be performed -- Were there straight cuts to be performed with this saw or not?

A.  Not that I know of.  We probably used the skill saw if we needed to do some straight cuts.

(Tr. at 365-366.) CO Naim was also told by one of Respondent’s supervisors that Respondent directed the work of the workers operating the table saw. (Ex. R-M, at 7.) The Court finds that these facts support a determination that Meadows was a controlling employer with regard to this citation item.

Merits

            With regard to applicability, the record shows that the piece of equipment at issue, a power table saw, was a power operated tool. Exhibit CX-34 is a portion of the table saw’s instruction manual, the pertinent part of which states that the saw comes with a “guarding system.” (Tr. at 151-158; Ex. CX-34 at 2.) The table saw was designed to accommodate a guard. The cited standard is applicable.

            With regard to non-compliance, it is undisputed that the power table saw was in use without a guard in place. Footnote CO Naim testified that during his inspection “he saw an unguarded saw blade being used.” (Tr. 144-145.) Mr. Henson also testified that he observed that the table saw was “being used to rip lumber for fascia boards.” Footnote He further testified that he observed two workers using the table saw without using a guard. (Tr. at 283-285; Exs. CX-27, CX-29.) The Court finds that the type of cut that the workers were making during the OSHA inspection is not dispositive with regard to the citation. The standard explicitly states that if the saw was designed to accommodate a guard, that guard must have been in place when the saw was in use.     The Court also credits CO Naim’s testimony - over the conflicting testimony of Mr. Jared Meadows - that he observed the workers doing straight cuts with the table saw. Footnote (Tr. at 445-446.) Throughout both of its post-hearing briefs, Respondent attacks CO Naim’s credibility as a witness in this case. (Resp’t Br. at 12-13, 15-16, 19, 24, 27, 38, 46, 50; Resp’t Reply Br. at 4, 7.) Respondent claims that CO Naim intentionally misrepresented and “shaded” facts, and provided false testimony, in his zeal to “make the citations stick.” (Resp’t Br. at 12; 38.) The Court finds these arguments unpersuasive and without merit. The Court observed the demeanor of CO Naim during his testimony and found him to be credible with regard to his testimony concerning Citation 1, Items 2, 3 and 6, and Citation 2, Items 1 and 2. Footnote Respondent argues that the worker who it says was operating the power table saw, Mr. Pinto, was not on its payrolls or any of its subcontractor’s payrolls. Footnote (Resp’t Pre-Hr’g Statement at 6.) The name and address of the worker that CO Naim observed operating the table saw was misrepresented to CO Naim during the course of the OSHA inspection. CO Naim testified that he believed that the name of one of the workers who he observed operating the table saw was Ederson Pinto. However, Mr. Pinto testified that he was not present at the worksite during OSHA’s inspection. Mr. Pinto further testified that he did work at the worksite sometimes for a company he did not know the name of. ((Tr. at 133-134, 137-139, 141-142; Ex. CX-7.) The Secretary also asserted that Respondent refused to identify employees to CO Naim. (Ex. R-M, at 10.) Whether Mr. Pinto was on Respondent’s or its subcontractor’s payrolls is not dispositive. Respondent was responsible under the Act for the workers CO Naim and Mr. Henson observed operating the unguarded table saw, whoever they were. The Court finds that Respondent was not in compliance with the cited standard.

With regard to exposure, Respondent claims that the Secretary failed to show how the operators of the table saw were exposed to any type of hazard, “likely because long boards can be handed off between two men so as to avoid either being in close proximity to the blade.” (Resp’t Br. at 42.) “[I]n order for the Secretary to establish employee exposure to a hazard [he] must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). CO Naim testified that he “saw three employees exposed to an unguarded saw blade.” The CO testified that the hazards associated with this table saw included laceration, cut, amputation, kickbacks and flying debris. (Tr. at 145-148; Exs. CX-31, CX-32.) Kickbacks, according to the CO, occur when the material to be cut “gets bound up” in the saw and the “blade [pushes] the material back towards the operator” causing “struck-by injury, impalement, eye injuries, and so forth.” (Tr. at 148.) This testimony was unrebutted during the trial. The record does not establish how close the workers hands were to the unguarded saw blade, however, Respondent’s claim does not address the hazard of flying debris or kickbacks. The Court therefore finds that the Secretary showed that the workers operating the unguarded table saw were exposed, at a minimum, to the hazards of flying debris and kickbacks.

With regard to knowledge, Respondent argues that the Secretary failed to “furnish any evidence that Meadows knew or could have known of the alleged straight cuts the men were making without the guard.” (Resp’t Br. at 42.) As noted above, the issue of the type of cut is not dispositive. Even so, both Michael Meadows and Jared Meadows testified that they observed the workers using the unguarded table saw. (Tr. at 364-366; 408-409.) Also, CO Naim testified that Messrs. Michael Meadows and Oliveira were both in the vicinity of the saw when it was being used in an unguarded condition. (Tr. at 149-150.) The record therefore establishes that Respondent had actual knowledge of the cited condition. P. Gioioso, 675 F.3d at 73 (“an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about.”).

            Respondent raises the impossibility defense claiming that it would have been impossible to use a guard on that table saw to make the bevel cuts necessary for the job. Footnote (Resp’t Br. at 44.) To prove infeasibility, however, Meadows has the burden to show, by a preponderance of the evidence, that “ ‘(1) literal compliance with the terms of the cited standard was infeasible under the existing circumstances, and (2) an alternative protective measure was used or there was no feasible alternative measure.’ ” Westvaco Corp., 16 BNA OSHC 1374, 1380 (No. 90-1341, 1993) (citation omitted) (emphasis added). Meadows has not met this burden. CO Naim testified that was not permissible for workers to make angle or other cuts on the power table saw without the saw guard in place. (Tr. at 151; Ex. CX-34.) The DeWalt DW745 manufacturer’s instructions state:

            Important Safety Instructions

            · TO REDUCE THE RISK OF KICKBACK AND OTHER INJURIES, use all                            components of the guarding system (blade guard assembly, riving knife and             anti-kickback) for every operation for which they can be used including all through             cutting.

 

(Ex. CX-34 at 2.)

The manufacturer’s instructions rebut the testimony by Messrs. Jared Meadows and Michael Meadows that it is impossible to use the guard on the table saw. Footnote Even if it were infeasible to use a guard on the table saw to make bevel cuts, the record shows that no alternative protective measures were being used. The record also fails to show whether Respondent had attempted to use a feasible alternative measure of protection for making these bevel cuts, such as using a different saw that was designed to accommodate a guard while making bevel cuts. The Court therefore rejects Respondent’s impossibility defense.

            Respondent also raises the unpreventable employee misconduct (“UEM”) defense with regard to the worker operating the saw. (Resp’t Br. at 43.) To be successful in its UEM defense, Respondent has the burden to show that it: “(1) established a work rule to prevent the reckless behavior and/or unsafe condition from occurring, (2) adequately communicated the rule to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule whenever employees transgressed it.” P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 115 F.3d 100, 109 (1st Cir.1997). With regard to machine guarding, the record shows that Respondent has a work rule in place as shown in its safety manual. See Ex. R-O at “Hand and Power Tools.” The rule states that “[p]ower tools that are designed to be used with a guard will be used in this manner.” Ex. R-O at “Hand and Power Tools.” The record also shows that Meadows communicated safety rules daily in its morning “coffee talks.” (Tr. at 435-437.) Additionally, the record shows that Meadows took steps to detect noncompliance with safety rules. Meadows contracted a safety company, Safety Net, to develop the safety plan for this worksite and Safety Net had visited the worksite twice since the project began. (Tr. at 433.) Mr. Black, who was there four hours per day, also testified that Meadows was very responsive whenever he saw incidents of noncompliance. (Tr. at 330-331.)

            However, the record does not show whether and how effectively Respondent enforced its machine guarding rule. Although its safety manual indicated that Meadows had a progressive disciplinary policy toward those who violated the work rules, Respondent produced no documentation showing that it implemented the progressive disciplinary policy in general or with regard to machine guarding specifically. There was also no testimony as to whether and how Respondent implemented the progressive disciplinary policy. The Court therefore finds that Meadows failed to carry its burden of establishing the UEM defense with regard to this citation item.

            The violation is affirmed.

Characterization

            The Secretary alleges a serious violation of the cited standard. The Court agrees with CO Naim’s testimony that the injuries associated with the violation of this standard include laceration, cut, amputation and impalement, and views these injuries as serious physical harm. (Tr. at 148.) The violation is properly characterized as serious.

Citation 1, Item 3

            This citation item alleges a violation 29 C.F.R. § 1926.404(b)(1)(i), which states in pertinent part: “The employer shall use either ground fault circuit interrupters as specified in paragraph (b)(1)(ii) of this section or an assured equipment grounding conductor program [“AEGCP”] as specified in paragraph (b)(1)(iii) of this section to protect employees on construction sites.” Section b(1)(ii) states in pertinent part: “All 120-volt, single-phase 15- and 20-ampere receptacle outlets on construction sites, which are not a part of the permanent wiring of the building or structure and which are in use by employees, shall have approved ground-fault circuit interrupters for personnel protection.” The Secretary claims that CO Naim determined that the “unguarded saw was plugged into an extension cord, which was neither part of the building’s permanent wiring nor protected by any GFCI[.]” (Sec’y Br. at 16-17.) In the citation, the Secretary claims that Respondent did not have an AEGCP. Respondent claims that the Secretary did not establish non-compliance with the cited standard. (Resp’t Br. at 45-46.) Respondent also raises the infeasibility defense. (Resp’t Br. at 46.)

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this multi-employer worksite. As a controlling employer, Meadows had the responsibility of monitoring potential hazards with reasonable diligence on the worksite and correcting them. Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The unguarded table saw, used by Meadows’ subcontractors as discussed above in Citation 1 Item 2, was in turn plugged into the extension cord at issue in this GFCI citation violation. (Tr. at 170-171.) The record shows that, just as the power table saw was visible to Respondent’s supervisors and the OSHA inspectors, so was the non-GFCI extension cord that was used to power the table saw. Respondent had the power to detect this violative extension cord as it was being used to power the table saw, and also had the power to correct the violative condition. The Court finds that Meadows is responsible for the alleged violations in this citation item.

Merits

            With regard to applicability, the record shows that workers on this construction site used a power table saw that was connected “by cords” to an interior, non-GFCI outlet in the school building. (Tr. at 170-172; Exs. CX-36, CX-37, R-M, at 7-8.) According to CO Naim, he “followed the cords to its originating outlet to see if there was any GFCI connected to the originating outlet, and there was not.” (Tr. at 170.) The outlet at issue was therefore on the power saw’s extension cord, which was in use and not part of the permanent wiring of Moody Elementary School. Otis Elevator Co., 17 BNA OSHC 1166, 1168 (No. 90-2046, 1995) (holding that an extension cord plugged into a building’s permanent wiring falls under the requirements of ground-fault circuit protection in 29 C.F.R. § 1926.404(b)(1)(i)). Additionally, it is general knowledge that the two types of circuits in the United States are 120 volts and 240 volts. The instruction manual associated with the table saw states that it is intended for use on a circuit less than 150 volts. (Ex. CX-34 at 2.) The outlet illustrated on the same page shows a standard 120v/15-20amp outlet. (Ex. CX-34 at 2.) The record shows that the extension cord at issue was plugged into the same type of outlet as that illustrated in the power saw’s instruction manual. (Exs. CX-36 through CX-38.) It is inferred that the extension cord provided a 120-volt/15 or 20 ampere circuit for the table saw. New England Synthetic Sys., Inc., 18 BNA OSHC 1818, 1820 (No. 97-1843, 1999) (ALJ Yetman). Respondent does not argue against the applicability of the cited standard. The Secretary has shown that the standard applies.

            With regard to non-compliance, CO Naim testified that by “tracing the cords” of the energized table saw, he determined that the power saw was not GFCI protected. (Tr. at 170-172.) The Court interprets this testimony to mean that if there were GFCI protection along any part of “the cords,” including the cord outlets, CO Naim would have noted it. Respondent argues that (1) the only way to determine whether an outlet was GFCI protected is to check the panel box, and (2) neither CO Naim nor Mr. Henson checked the panel box during the inspection. (Resp’t Br. at 45.) It is undisputed that neither CO Naim nor Mr. Henson checked the panel box during the inspection. Footnote Under Commission precedent, however, extension cords themselves should be equipped with GFCI protection. Otis Elevator, 17 BNA OSHC at 1167. Respondent does not claim that CO Naim missed any GFCI protection along the length of “the cords.” Footnote The Secretary has shown non-compliance.

            With respect to exposure, the record shows that workers were using the table saw, which was energized by “cords” that were not GFCI protected. (Tr.at 170-173.) The Secretary has established exposure.

            With respect to knowledge, the record shows that Messrs. Michael Meadows and Jared Meadows assumed that the originating interior power outlet was GFCI protected because the building was a schoolhouse. (Tr. at 373; 411-412.) The question, however, is not whether the schoolhouse’s power supply was GFCI protected, but whether the outlets on “the cords” running the power equipment on the worksite were GFCI protected. The Court finds that Respondent’s supervisors knew or should have known that the “cords” themselves were not GFCI protected. This became readily apparent to CO Naim during the course of his inspection. It was a condition that was readily discernible to Respondent’s supervisors who were regularly present at the worksite. Ignorance of the requirements of the standard is no defense. Manganas Painting Co., Inc., 21 BNA OSHC 1964, 1985 n.24 (No. 94-0588, 2007) (“It is well-settled that any misunderstanding about a respondent’s legal obligations would not be relevant to whether it violated the standard.”)

            Respondent raises the infeasibility defense by arguing that it was contractually obligated to use the school’s power supply and that it had no alternative power supply. (Resp’t Br. at 44.) Despite its obligation to use the school’s power supply, Respondent does not argue that it was restricted in the type of extension cords it could have used on the worksite. Respondent has failed to show that it was impossible to use a different extension cord with GFCI protection on it. Westvaco Corp., 16 BNA OSHC at 1380 (infeasibility defense fails when employer fails to show alternative protective measures were used or did not exist). The violation is affirmed.

Characterization

            The Secretary alleges that serious violation of this standard. According to CO Naim, workers were exposed to electrical shock and burn by using power equipment that was not GFCI protected. (Tr. at 173.) The citation is properly characterized as serious.

Citation 1, Item 4

This citation item alleges a violation of 29 C.F.R. § 1926.451(f)(6), which states in pertinent part: “Scaffolds shall not be erected, used, dismantled, altered, or moved such that they or any conductive material handled on them might come closer to exposed and energized power lines than [3 feet for insulated lines up to 300 volts].” Footnote 29 C.F.R. § 1926.451(f)(6) (emphasis added). The Secretary bases this citation item on conversations between CO Naim and foreman Oliveira and CO Naim and Mr. DaSilva during their tour of the worksite. CO Naim testified to the following: Mr. Oliveira told him that he had previously operated a piece of equipment to elevate himself up to arm’s length distance of the live power cable in the alcove on the west side of the building, and draped rubberized material over it in an attempt to insulate it so that they could remove a catch platform above it without risk of being injured by electric shock. CO Naim testified that by doing so Mr. Oliveira brought the “scaffold” less than ten feet from the energized line. (Tr. at 174-181, 188-189; Exs. CX-40, CX-41.) The citation alleges that the elevated work occurred on about July 10, 2012. Respondent claims that the Secretary failed to show applicability and non-compliance of the cited standard. (Resp’t Br. at 46-50.)

Merits

With regard to applicability, Respondent argues that the cited standard does not apply to the piece of equipment at issue because it is an “aerial lift” and not a scaffold. Footnote (Resp’t Br. at 16; Resp’t Reply Br. at 5.) The Secretary, on the other hand, calls this piece of equipment an “aerial lift scaffold,” and claims it “constitutes a powered wheel-mounted supported scaffold within the ‘mobile scaffold’ definition set forth in 29 C.F.R. § 1926.450.” (Sec’y Br. at 17 fn25.) The Court agrees with Respondent.

            Section 1926.450 defines “mobile scaffold” as a “powered or unpowered, portable, caster or wheel-mounted supported scaffold.” 29 C.F.R. § 1926.450. A supported scaffold is defined as “one or more platforms supported by outrigger beams, brackets, poles, legs, uprights, posts, frames, or similar rigid support.” 29 C.F.R. § 1926.450. In contrast, an “aerial lift” is defined as a type of “vehicle-mounted aerial device[] used to elevate personnel to job-sites above ground.” 29 C.F.R. § 1926.453(a) (emphasis added). Aerial lifts include “extensible boom platforms” and “articulating boom platforms.” 29 C.F.R. § 1926.453(a)(i) & (iii). Exhibits CX-3, CX-41 and CX-49 show the platform at the end of the telescopic boom lift. (Tr. at 184-185; Exs. CX-3, CX-41, CX-49, R-L at 3.) Together, the three photographs show that the platform is attached to the end of a mechanized arm of the telescopic boom lift. (Tr. at 185; Exs. CX-3, CX-41 marked “B”, CX-49.) Footnote Exhibit CX-40 also helps to clarify. Exhibit CX-40 is the warning instructions associated with this particular piece of equipment. (Tr. at 183; Ex. CX-40.) The instructions denote that the piece of equipment at issue is a “machine” and has a “boom,” which is more consistent with the description stated above of an aerial lift than a wheel-mounted scaffold. (Ex. CX-40).

The testimony surrounding the telescopic boom lift is also illuminating. The CO referred to the unit as an “aerial lift” throughout his testimony, and also testified that he considers an “aerial lift” the same thing as a “scaffold.” (Tr. at 176-191, 241.) The fact that the CO considered an “aerial lift” the same thing as a “scaffold” leads the Court to believe that he did not distinguish between the two in terms of regulatory requirements. According to the CO, Oliveira “raised” the elevation unit, and “operated” it to do work “adjacent to [the] energized electrical line.” (Tr. at 181; 186.) This description of the use of the telescopic boom lift is more consistent with the definition of an aerial lift rather than with the definition of a scaffold as it shows that it was available to allow Mr. Oliveira to elevate himself to any work related task above ground. See 29 C.F.R. § 1926.453(a) (an “aerial lift” is “used to elevate personnel to job-sites above ground”) (emphasis added).

Although the aerial lift standard falls under the scaffold subpart, the requirements for aerial lifts are explicitly set apart from scaffolds. 29 C.F.R. § 1926.451. In order for the Secretary to show that the cited standard applied, he must have established how the piece of equipment at issue was a scaffold and not an aerial lift. Footnote The evidence in the record does not establish that; if anything, the evidence supports Respondent’s claim that the telescopic boom lift is an aerial lift. As this burden falls on the Secretary, the Court finds that he has failed to prove applicability for this citation item.

With regard to non-compliance, Respondent argues that the evidence relied upon by the Secretary was “unreliable” and “second-hand.” Footnote (Resp’t Br. at 17-18; 48-50; Resp’t Reply Br. at 8.) The Court agrees and finds that the evidence that the Secretary relied upon to attempt to prove this citation item is flimsy, at best. Mr. Oliveira’s account was admitted into the record as an admission by a party opponent under Federal Rules of Evidence 801(d)(2)(D). Footnote Mr. Oliveira was not called as a witness at the trial. Mr. Henson testified that he had nothing to do with Citation 1, Item 4, had no information to share about it, and was not present when CO Naim spoke with Mr. Oliveira. (Tr. 285, 296.) Admissions admitted under Rule 801(d)(2)(D) are not inherently reliable. Several factors affecting the trustworthiness of any such admissions should also be considered; e.g. timing of admission, relationship of statement to declarant’s work, and employer’s access to evidence rebutting the matter asserted. Regina Construction Co., 15 BNA OSHC at 1048. Here, there is doubt cast on Mr. Oliveira’s alleged admissions. The CO did not observe Mr. Oliveira’s alleged violative actions and relied solely on Oliveira’s statement to him as support for the citation. The record shows that Oliveira may have had a language barrier to an unknown extent. Footnote The CO also did not testify as to when Mr. Oliveira allegedly used the telescopic boom lift to elevate himself to come within an arm’s length of the live power cable. CO Naim testified that he was not sure when that event happened, or if Mr. Oliveira told him that it happened on July 10, 2012. Footnote CO Naim also testified that Mr. Oliveira did not tell him how long the rubberized material that he had draped over the wire remained on the wire, or if the rubberized material had been removed. CO Naim testified that Mr. Oliveira did not identify any other workers who were with him when he placed rubberized material over the wire, or to what extent the wire was covered. CO Naim stated that he had not seen, and no photographs showed, any covering on the wire. (Tr. at 176; 178, 223, 228-230, 240, 264-265, 367, 418, 436.) Also, Mr. Jared Meadows testified that Respondent, or its subcontractors, did not put any type of rubber insulation on the wire leading to the west side of the building. He also testified that he never observed Respondent’s employees, or its lifts, working within feet of the live wire. Footnote He further testified that Respondent was waiting for the electrical company, that it identified as Nstar, to put a boot on the wire, so Respondent was not working near it at the time of the OSHA inspection. Footnote He stated that Nstar, without the involvement of Respondent’s workers or subcontractors, installed a rubber boot on the wire a few days after the OSHA inspection. Footnote (Tr. at 366-369.) The Court finds that the Secretary also failed to establish non-compliance.

This citation item is vacated.

Citation 1, Item 5(a) and 5(b)

            This citation has two sub-items, both of which allege violations of OSHA’s aerial lift standards at 29 C.F.R. § 1926.453. Item 5(a) alleges a violation of 29 C.F.R. § 1926.453(b)(2)(iv), which states in pertinent part: “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.” Item 5(b) alleges a violation of 29 C.F.R. § 1926.453(b)(2)(v), which states in pertinent part: “A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.”

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this multi-employer worksite. As a controlling employer, Meadows had the responsibility of monitoring potential hazards with reasonable diligence on the worksite and correcting them. Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The workers on the elevated platform in this citation item were elevated to the roof by Jared Meadows, the operator of the telehandler. Respondent’s Safety Program for the worksite stated that the aerial lift operator is responsible for ensuring that “all personnel in the platform are wearing fall protection devices and other safety gear as required at all times (100% fall protection). Tie off only to manufacturer provided anchorage point and not handrails.” (Ex. R-O, Aerial Lifts section, at 4.) The Court therefore finds that Meadows was also a “creating” employer in terms of responsibility for safety under the multi-employer doctrine at this worksite on July 10, 2012 wherever non-compliance with a standard is demonstrated. Summit, 23 BNA OSHC at 1205.     

Merits

The Secretary bases the alleged violations of these standards on the observations of the OSHA inspectors of Meadows’ workers in the telehandler’s elevated platform. Footnote (Sec’y Br. at 19.) According to Mr. Henson, he observed workers “climbing over the rails ... to access the roof and vice versa, off the roof into the basket.” (Tr. at 286.) Mr. Henson testified that those same employees were accessing the roof and the platform “without being tied on to the basket or the roof.” (Tr. at 286.) Similarly, CO Naim testified that he believed that the men on the platform were not using fall protection because he observed them exiting the platform and walking onto the roof without “pulling anything,” i.e., “there was no lines.” (Tr. at 267.) CO Naim testified that he observed employees stepping on the telehandler’s platform’s midrails climbing out of the telehandler’s platform, and standing on the telehandler’s platform’s toe boards. CO Naim also testified that he observed workers in the telehandler’s platform wearing harnesses that were “not attached to anything.” Footnote (Tr. at 192-199; Ex. CX-52.)

Respondent claims that the Secretary failed to establish non-compliance with the cited standard, any exposure to a hazard, or knowledge. (Resp’t Br. at 50-54.) Respondent is correct. The photographs in evidence do not support the Secretary’s allegations in Citation 1, Item 5. When shown photograph exhibit CX-52, CO Naim testified that he could not say that the photograph showed that lanyards were not attached to the platform. He further testified that he was not sure whether there were any photographs showing workers on the platform that were not attached to the platform. He also acknowledged that photograph exhibit CX-52 did not show workers’ feet; therefore the photograph does not show workers standing on the platform’s midrails or toe boards. (Tr. at 257-258, 266.) Mr. Jared Meadows testified that he did not observe any workers standing on the platform’s railings on July 10, 2012. He further testified that on that date all of the workers on the roof were wearing harnesses and lanyards that they were using to tie off. He also testified that he did not observe any workers not clipping onto the telehandler’s platform. (Tr. at 371-375.) Michael Meadows also testified that he did not see any workers standing on the platform’s railings on July 10, 2012. (Tr. at 405.) The Court credits the testimony of Messrs. Jared and Michael Meadows over that of CO Naim and Mr. Henson with regard to whether or not workers climbed over platform rails, or accessed the roof from the platform without being tied off. Mr. Jared Meadows was watching the workers in the platform while standing within 25 feet of the telehandler. CO Naim and Mr. Henson were further away and their ability to see the entire body of the workers within the confines of the platform was more limited by comparison. Footnote The Secretary has failed to prove non-compliance with the standard. Complainant has also not shown that workers were actually exposed to the hazard alleged in the Citation, Items 5(a) and 5(b), and Respondent had no knowledge of any such alleged violations because they did not exist. For these reasons, both of these citation sub-items are vacated.

Citation 1, Item 6

            This citation item alleges a serious violation of 29 C.F.R. § 1926.25(a), which states in pertinent part: “During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.” The Secretary claims that the OSHA inspectors observed “debris, including wood containing protruding nails and screws,” in plain view in a work area at the building’s west side in the original vicinity of the telescopic boom lift. Footnote (Sec’y Br. at 19; Tr. 200-202; CX-41, CX-54, CX-55.) Mr. Henson testified that the debris included material from a dismantled catch platform. (Tr. at 276-277; Ex. CX-54.) Respondent claims that it complied with the standard, and that no worker was exposed to any hazard. (Resp’t Br. at 56, 58; Resp’t Reply Br. at 9). Respondent also raises the infeasibility defense. (Resp’t Br. at 56-57.)

Multi-Employer Doctrine

This citation item concerned debris that was generated on the worksite by roofers, and it was on the ground for any and all workers to navigate through. As Meadows was the controlling employer of the entire worksite, the Court finds that Meadows had the ability, with reasonable diligence, to detect this hazard and abate it. Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The Court also finds that Meadows is responsible under the creating employer theory of the multi-employer doctrine. Summit, 23 BNA OSHC at 1205. The debris was generated by the roofers, who were doing the work under Respondent’s supervision that Meadows was specifically contracted to perform, replacing the roof on the Moody Elementary School. The Court finds that Meadows is responsible for the alleged violations for this citation item.

Merits

            With regard to applicability, it is undisputed that Meadows was engaged in the course of construction, and that Henson observed workers walk over debris in a work area around the school building. (Tr. 200-202, 275-281; Exs. CX-41, CX-42, CX-53, CX-54 and CX-55.) To the extent that Respondent’s argument that the debris did not contain nails reaches applicability, the Court disagrees. The Commission has broadly interpreted the term “debris” as “matter that is scattered about working or walking areas.” Gallo Mech. Contractors, Inc., 9 BNA OSHC 1178, 1180 (No. 76-7371, 1980); see also Capform, Inc., 16 BNA OSHC 2040, 2044 (No. 91-1613, 1994) (affirming “debris” interpretation in Gallo). The record shows that plywood and other pieces of wood were scattered about the work area of the Lowell worksite. The Court finds that the cited standard applies.

            With regard to noncompliance, the record shows that the debris was in a walkway as evidenced by the undisputed fact that workers walked over it. Respondent argues that it “reasonably” complied with the standard by keeping some of the debris in “attachment boxes” and removing the debris on the ground once a day. Footnote (Resp’t Br. at 56-57.) The standard explicitly states that debris “shall be kept cleared from work areas,” not “reasonably clear.” 29 C.F.R. § 1926.25(a). The Secretary has established non-compliance.

            With regard to exposure, Respondent claims that the debris did not contain nails, only screws, “such that no hazard was created for men in rugged work boots.” (Resp’t Reply Br. at 9). The Court denies this unsupported claim. Photographs at exhibits CX-54, CX-55, and CX-56 show pieces of wood with protruding nails. (Tr. at 278.) Additionally, the Commission has also held that the hazards associated with this standard include tripping and falling. Gallo, 9 BNA OSHC at 1180. Despite Respondent’s argument that men in “rugged boots” were not exposed to any hazard because screws, as opposed to nails, were protruding out of the wood, the men were still exposed to the hazard of tripping and falling. Footnote The record evidence establishes that workers actually walked over the debris. Footnote Mr. Henson testified that he also observed a Meadows employee, who he identified as Brian Dias, walk through the debris at the building’s west side. Footnote (Tr. at 279-281; Ex. CX-56.) The Court therefore finds that the Secretary established exposure.

            With regard to knowledge, the record shows that Respondent was aware of the debris throughout the workday and that workers supervised by Respondent cleared it once at the end of each work day. (Tr. at 319-320, 369, 419-420.) The Court finds that the Secretary established actual knowledge of the cited condition.

            Respondent raises the infeasibility and greater hazard defenses to this citation item claiming that the nature of slate roof replacement caused a continuous “rain” of debris onto the ground below that would have been hazardous to workers had they continually cleared it from the work area. (Resp’t Br. at 57-58.) To establish the infeasibility defense, Meadows must show that “(1) literal compliance with the terms of the cited standard was infeasible under the existing circumstances, and (2) an alternative protective measure was used or there was no feasible alternative measure.” Westvaco Corp., 16 BNA OSHC at 1380 (citation omitted) (emphasis added). To establish the greater hazard defense, the employer has the burden of showing “that the hazards of compliance with the standard are greater than noncompliance; that alternative means of protecting employees were either used or not available; and that an application for a variance under section 6(d) of the Act would be inappropriate.” Hackensack Steel Corp., 20 BNA OSHC 1387, 1391 (No. 97-0755, 2003) (emphasis added). Respondent claims that the measures it took to minimize the debris, and its daily clean-up routine, were “prudent and reasonable under all the circumstances.” (Resp’t Br. at 57.) The Court finds, however, that Respondent has failed to show that it took any alternative measures to protect its employees from tripping and falling over the debris, such as cordoning off the area. Indeed, the record shows that employees felt comfortable enough to walk over the debris in front of the OSHA inspectors, suggesting that supervisors had even failed to caution the workers about the debris. Respondent has therefore not met its burden of establishing either defense. The citation is affirmed.

Characterization

The Secretary alleges a serious violation of the cited standard. The hazards associated with this standard include tripping and falling. Gallo, 9 BNA OSHC at 1180. It is undisputed that screws protruded from the debris. The Court finds that tripping or falling onto a protruding screw would likely cause serious physical harm. The violation is properly characterized as serious.

Citation 2, Item 1

            This citation item alleges a repeat violation of 29 C.F.R. § 1926.403(b)(2), which states in pertinent part: “Listed, labeled, or certified equipment shall be installed and used in accordance with instructions included in the listing, labeling, or certification.” The piece of equipment at issue here was a relocatable power tap that was not rated for use on a construction site. (Tr. at 346-349; Exs. CX-57-59, CX-60 at 2-3.) The Secretary claims that the CO saw the relocatable power tap “being used” on the construction site, which was contrary to its listing and was therefore a violation of the cited standard. (Sec’y Br. at 19-20.) Respondent claims that the Secretary failed to establish non-compliance, exposure, and knowledge. (Resp’t Br. at 58-60.)

            The power tap was “located outside on the construction site” near a microwave that had a beverage sitting on it. (Tr. at 204-206, 287; Exs. CX-57 at A, CX-58.) The microwave was located on the east side of the building. (Ex. CX-39.) The power tap had two electrical cords plugged into it, but the tap itself was not plugged in. (Tr. 204-206, 287, 294-295, 370, 427; Ex. CX-57.) One of the electrical cords plugged into the tap was an extension cord that ran to the roof. (Tr. 204-205, 287; Exs. CX-39, CX-58.) The other cord plugged into the tap was for either the microwave, or for a portable battery charger for an electric drill. (Tr. 205-206; Ex. CX-57.) CO Naim testified that he was told by one of Respondent’s employees that he did not know who owned the power tap. The name on the back of the tap was “Hoberth Air Renovation,” which Michael Meadows testified was not one of the subcontractors on the job. (Tr. 250, 428; Ex. CX-59.)

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this multi-employer worksite. As a controlling employer, Meadows had the responsibility of monitoring potential hazards with reasonable diligence on the worksite and correcting them. Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. Despite Respondent’s assertion that the power tap was located away from Respondent’s work, and that it did not own it or know what company “Hoberth Air Renovations” was, the extension cord originating from it ran up the side of the building to the roof, where Meadows’ subcontractors were working under Respondent’s supervision. The Court finds that, due to its controlling authority over the Lowell worksite and the roofers in particular, Respondent was reasonably expected to “prevent or detect” the electronic source of the equipment used on the roof, and that it had the authority to use a proper source. Respondent is therefore liable under the multi-employer doctrine for this citation item.

Merits

            With regard to applicability, the record shows that the power tap at issue is a “listed, labeled, or certified” piece of equipment with instructions. (Tr. at 346-349, Ex. CX-60 at 2-3.) OSHA Assistant Area Director (“AAD”) Robert Carbone testified that the power tap at issue was certified by Underwriters Laboratory (“UL”), an independent testing laboratory. Footnote (Tr. at 347-348.) He further testified that the instructions issued by UL stated that the power tap was not intended for use on construction sites. Footnote (Tr. at 347-348; Ex. CX-60 at 3.) The Secretary has established that the cited standard applies.

            With regard to non-compliance, the Secretary alleges that the cited standard prohibited the power tap from being used at the Lowell worksite. (Sec’y Br. at 19-20.) The Court agrees that the power tap was a non-compliant piece of equipment under the terms of the cited standard. Respondent argues, however, that the power tap was not “in use,” as stated in the standard, because it was not plugged in and because no tools or machinery were plugged into it at the time of OSHA’s inspection. (Tr. at 370.) Although the male end of the power tap was not plugged into anything at the time of OSHA’s inspection, the overall record undermines this claim that the power tap was not “in use.” The instructions associated with this relocatable power tap, under the heading “Use and Installation,” state that the power tap is “intended …to supply [energy and] to provide outlet receptacles[.]” (Tr. 287; Ex. CX-60 at 3.) The record shows that the power tap provided two outlet receptacles to items on the worksite. One of the items, the extension cord, ran up to the roof where the roofing work was being performed. Footnote The power tap was therefore both available for use and actually in use at the worksite. Footnote

            The Secretary has therefore established non-compliance.

            Respondent next argues that the Secretary has not established exposure. (Resp’t Br. at 59.) As noted above, the Secretary establishes exposure to a hazard by showing that “it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Fabricated Metal, 18 BNA OSHC at 1074 citing Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). “[A] rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure.” Id. at 2003. The record shows that it is reasonably predictable that workers on the Lowell worksite used or would have had access to the violative power tap. Not only were two items already plugged into the non-compliant power tap, showing that workers had used the tap, but the tap was also near a location where workers travelled, as evidenced by the microwave with a beverage sitting on it. Additionally, the extension cord ran up to the roof, where it was undisputed that Meadows’ subcontractors were working. Even though it was not plugged in at the time of the OSHA inspection, the Court finds the evidence noted above shows that the power tap was intended to be energized. It is therefore reasonably predictable that the workers on the site either had been using or had access to the violative power tap. The Secretary has established exposure.

Respondent finally argues that it did not have knowledge, nor could it have known, of the violative power tap because it did not belong to Respondent or any of its subcontractors, none of the workers claimed it as theirs, and it was located away from Respondent’s work. (Tr. at 370; Resp’t Br. at 59.) The evidence in the record does not establish that Respondent had actual knowledge of the existence of the power tap. Michael Meadows testified that the power tap did not belong to his company or any of his subcontractors. (Tr. at 428.) Jared Meadows testified that he never saw anyone use the power tap. (Tr. at 370.) Neither Michael Meadows nor Jared Meadows confirmed or denied that they knew that the power tap was on the worksite before or during the inspection.

The evidence in the record, however, shows that Respondent had constructive knowledge of the existence of the power tap. “[A]n employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about.” P. Gioioso, 675 F.3d at 73; see also Hamilton Fixture, 16 BNA OSHC 1073, 1089 (No. 88-1720, 1993) (finding constructive knowledge when “a physical condition or practice is ‘readily apparent to anyone who looked’ ”) (citations omitted). Michael Meadows testified that he knew that a power tap, like the one at issue here, was not supposed to be used on a construction site. (Tr. at 437-438.) Respondent’s supervisors, Messrs. Michael Meadows and Jared Meadows, testified that they were at the worksite on the day of the inspection. The record shows that the power tap was in plain view of the OSHA inspectors during their inspection and that it was in an area travelled by workers on the site given its proximity to the microwave with the beverage sitting on it. (Tr. at 204; 287, 360; Ex. CX-39.) The record also shows that the extension cord originating from the power tap ran up the side of the building to the roof where it was undisputed that Respondent’s workers were working. (Tr. 205, 287, 375; Exs. CX-39, CX-58.) The Court finds that if the OSHA inspectors could see the power tap and the extension cord running up to the roof, then Respondent’s supervisors could have observed it too. The Secretary has shown that Respondent had constructive knowledge of the violative power tap. The violation is affirmed.

Characterization

The Secretary claims that this violation should be characterized as a repeat violation based on Respondent’s previous violation of the same standard. (Sec’y Br. at 20; Ex. CX-61.) “[A] violation is repeated if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. Under this doctrine, the Secretary establishes a prima facie case of similarity by showing that both violations are of the same standard.” Capform, 16 BNA OSHC at 2045 (citations omitted).

The record shows that Meadows received a citation in December 2011 for violating the same standard on a job at Woburn, Massachusetts. (Tr. at 215-217, 437-439; Ex. CX-61.) Meadows never contested the citation because it reached an informal settlement agreement with OSHA, conceding the violation, on January 30, 2012. (Ex. CX-61.) Nevertheless, because a citation was issued and Respondent did not contest it, the citation of the same standard became a final order of the Commission under § 10(a) of the Act, 29 U.S.C. § 659(a), before the violation occurred here. Potlatch, 7 BNA OSHC at 1062. Respondent has not attempted to show any dissimilarity between the cited citation at issue and the previous violation that was not contested and has become a final order. Capform, 16 BNA OSHC at 2044-2045 (once prima facie showing of similarity has been shown, burden shifts to employer to show dissimilarity). The Court therefore rejects Respondent’s claim that the Secretary incorrectly attempted to draw an “adverse inference” from the previous citation regarding a power tap. Footnote (Resp’t Reply Br. at 6.) The citation is properly characterized as repeat.

Citation 2, Item 2 

            This citation item alleges a repeat violation of 29 C.F.R. § 1926.501(b)(10), which states in pertinent part: “each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system.” The Secretary claims that a violation was established based on “the observations by both OSHA inspectors of workers on the low-sloped roof area of the building without secured lanyards to prevent their falling.” (Sec’y Br. at 21.) Respondent claims that the Secretary failed to show non-compliance. (Resp’t Br. at 60-63.) Respondent also raises the UEM defense with respect to this citation item. (Resp’t Br. at 63-64.)

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this multi-employer worksite. As a controlling employer, Meadows had the responsibility of monitoring potential hazards with reasonable diligence on the worksite and correcting them. Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The roofers on this project were doing the work that Meadows was specifically contracted to perform – replacing the roof of the Moody Elementary School. Footnote (Tr. at 403.) The Court finds that, due to its controlling authority over the Lowell worksite and the roofers in particular, Respondent was reasonably expected to “prevent or detect” the roofers’ adherence to fall protection safety measures, and that it also had the authority to correct any deficiency. Id. Indeed, Meadows had a safety program that required its subcontractors to use fall protection, and which also included a disciplinary program designed to effectuate that requirement. Respondent is therefore liable under the multi-employer doctrine for this citation item.

Merits

            With regard to applicability, CO Naim and Mr. Henson testified that when they approached the site, they observed workers on the roof who were not tied off. Footnote (Tr. at 126, 213; 282, 288.) CO Naim testified that he “observed workers on a roof 60 feet high that were exposed to fall hazards that were not protected from falls.” He further testified that there were “no guardrails” and “no netting” for these workers. He also testified that these workers on the roof were wearing harnesses that were not attached to anything. CO Naim stated that he told one of Respondent’s supervisors that he had observed these fall hazards when he opened his investigation at the worksite. (Tr. 207-210; Exs. CX-64 at A, CX-65, CX-66.) Henson testified that he observed two individuals “on the top of the roof, which is the flat part, without being tied off with – by means of a lanyard or otherwise.” (Tr.at 288.) The record shows that the workers on the roof were engaged in roofing activities on the low-sloped portion of the roof and were more than 60 feet above the ground. (Tr. at 124-126; Exs. CX-64, CX-65, CX-66.) The Secretary has shown that the cited standard applies.

            With regard to non-compliance, the Court accepts CO Naim’s and Mr. Henson’s testimony that they could see that the workers on the roof, even though they were wearing harnesses, were not tied off. Respondent argues that (1) the Secretary cannot establish a violation without conclusive photographic evidence, (2) the photographs show that the workers were wearing lanyards, and (3) Henson was too far away to see whether the workers were tied off. (Resp’t Br. at 60-61.) The Court is not persuaded. The Court accepts the Secretary’s photographic exhibits CX-64, CX-65 and CX-66, coupled with the testimony of CO Naim and Mr. Henson, as conclusive evidence that the men on the flat part of the roof were not tied off. (Tr. 267-268.) Unlike the lack of photographic evidence to support a violation of Citation 1, Item 5(a) and (b), here the Secretary provided photographic evidence that shows workers on the roof that are not tied off. Additionally, personal eyewitness accounts have been held sufficient to establish violations before the Commission. See, e.g., A.L. Baumgartner; 16 BNA OSHC at 2001; see also Suttles Truck Leasing, Inc., 20 BNA OSHC 1953, 1974 (No. 97-0545, 2004) (consolidated) (holding that industrial hygienist’s uncontradicted personal observation was sufficient to establish a violation). Respondent has not provided sufficient evidence that CO Naim or Mr. Henson, based on distance, could not tell that the workers were not tied off on the roof. The Court finds CO Naim a credible witness in this regard. The Court also observed Mr. Henson’s demeanor as he was testifying and found him to be credible, honest, impartial, well-meaning, confident, direct, and persuasive with regard to Citation 1, Items 1 through 3, and 6 and Citation 2, Items 1 and 2. Footnote Respondent does not even question Mr. Henson’s credibility. Finally, the issue is not whether the workers were wearing lanyards, but whether the lanyards were tied off while on the roof. Respondent’s arguments regarding witnesses who saw the workers wearing lanyards are not dispositive. Footnote The Secretary has established non-compliance.

            With respect to exposure, the record shows that the workers were not tied off while working on the roof over 60 feet high. The Secretary has established exposure to the hazard of falling.

            With respect to knowledge, the Secretary alleges that Respondent should have known that workers on the roof worked with unsecured lanyards. (Sec’y Br. at 12.) The Secretary claims that Meadows did not reasonably supervise the workers on the roof, and so did not “confirm whether effective fall protection was established.” (Sec’y Br. at 12.) Respondent relies on Bud Black’s testimony to show that Meadows properly supervised its workers. (Resp’t Reply Br. at 2-4.) Under Commission precedent:

the Secretary must prove that a cited employer either knew, or, with the exercise of reasonable diligence, could have known of the presence of the violative condition … Reasonable diligence requires the formulation and implementation of adequate work rules and training programs to ensure that work is safe, as well as adequate supervision of employees.

 

Summit, 23 BNA OSHC at 1207 (citations omitted). The Court finds that the record supports the Secretary’s claim that Meadows inadequately supervised the workers on the roof.

Jared Meadows testified that he was the project supervisor on the worksite, but he did not state that he would go up to the roof. (Tr. at 360.) He further testified that no Meadows employees were on the roof, and that Meadows’ foreman Oliveira stayed on the ground. (Tr. at 375.) It has not been established, therefore, that any Meadows supervisor ever effectively monitored the workers’ use of lanyards up on the roof. Instead, Respondent relies on Bud Black’s testimony to show that Meadows properly supervised the worksite. (Resp’t Br. at 62.) As noted above, it was not established that Mr. Black was on the worksite during the OSHA inspection. Additionally, Mr. Black testified that he was not responsible for safety at the Lowell worksite. (Tr. at 328-329.) The Court notes that Mr. Black did not state whether he ever saw Jared Meadows or any other Meadows supervisor on the roof. The Court also notes that while Mr. Black testified that he observed the workers wearing lanyards on the roof, he did not testify that he observed those workers tied off. (Tr. at 327.) The Court therefore finds that Jared Meadows did not exercise reasonable diligence with regard to supervising the workers on the roof. His constructive knowledge can be imputed to Respondent based on his supervisory status. P. Gioioso, 675 F.3d at 73 (“an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about.”) The Secretary has established knowledge.

            Respondent raises the UEM defense with regard to its workers using fall protection on the roof. (Resp’t Br. at 63-64.) With regard to fall protection, the record shows that Respondent has a work rule in place as shown in its safety manual. See Ex. R-O at “Safety Rules and Regulations.” The rule states, in pertinent part, that “A means of fall protection will be utilized for anyone working over six feet in height.” Ex. R-O at “Safety Rules and Regulations.” The safety manual’s fall protection section also states that its fall protection plan was “adopted to meet the requirements of 29 C.F.R. § 1926.500.” Ex. R-O at “Fall Protection Program.” The record shows that Meadows communicated safety rules daily in its morning “coffee talks.” (Tr. at 435-437.) The record also shows that Meadows contracted Safety Net to develop the safety plan for this worksite and also to monitor this worksite, presumably in an effort to discover incidents of noncompliance. (Tr. at 433.) Since Meadows had been on the worksite at Lowell, Safety Net had been there twice. (Tr. at 433.) Bud Black, who was there 4 hours per day, also testified that Meadows was very responsive whenever he saw incidents of noncompliance with safety rules. (Tr. at 330-331.)

The Court finds, however, that Respondent failed to take steps to discover incidents of noncompliance by inadequately supervising the roofers while they were on the roof, and that it failed to effectively enforce its rule. P. Gioioso, 115 F.3d at 109 (four prongs of UEM defense employer must show are: (1) work rule, (2) communication of work rule, (3) take steps to discover incidents of noncompliance, and (4) effective enforcement.) As noted above, despite the progressive disciplinary policy set forth in its Safety Manual, Respondent has not shown proof of how and whether it disciplined its workers in general or with regard to fall protection specifically. The Court therefore finds that Meadows failed to carry its burden of establishing the UEM defense with regard to this citation item. The violation is affirmed.

Characterization

The Secretary claims that this violation should be characterized as a repeat violation based on Respondent’s previous violations of a substantially similar standard at 29 C.F.R. § 1926.501(b)(13), “Residential Construction,” that occurred with a year and two months before the inspection in this case. (Sec’y Br. at 21; Exs. CX-61, CX-62, CX-68.) “[A] violation is repeated if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” Capform, 16 BNA OSHC at 2045 (citation omitted). “The principal factor in determining whether a violation is repeated is whether the two violations resulted in substantially similar hazards.” Amerisig Se., Inc., 17 BNA OSHC 1659, 1661 (No. 93-1429, 1996).

            The informal settlement agreements proffered by the Secretary show that Meadows waived its right to contest violations of 29 C.F.R. § 1926.501(b)(13) in June, 2011 that occurred at Woburn, Massachusetts and again in January, 2012 that occurred at Beverly, Massachusetts. Footnote (Tr. at 339-345, 439-440; Exs. CX-61, CX-68.) These two citations, therefore became final orders order of the Commission under § 10(a) of the Act, 29 U.S. C. § 659(a), before the violation occurred here. Likewise, the Secretary relied upon the violation summary of OSHA’s database to show that Respondent was previously cited for another violation of 29 C.F.R. § 1926.501(b)(13) contained within OSHA Inspection Number 314605072 issued on July 28, 2010 with respect to a workplace in Malden, Massachusetts that was resolved through an informal settlement agreement before the violation occurred here. (Ex. CX-11 at 3-4.) Potlatch, 7 BNA OSHC at 1062. Respondent has not attempted to show any dissimilarity between the cited violation of 29 C.F.R. § 1926.501(b)(10) and the previous violations of 29 C.F.R. § 1926.501(b)(13). The Court finds that the hazards associated with both the cited standard at issue here, and in § 1926.501(b)(13), are substantially the same if not the same: falling from a high distance. Amerisig Se., Inc.. 17 BNA OSHC at 1661. The Court therefore rejects Respondent’s claim that the Secretary incorrectly attempted to draw an “adverse inference” from the previous citations regarding “an 8-foot roof on another project.” Footnote (Resp’t Reply Br. at 6.) The citation is properly characterized as repeat.

Penalties

            “Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that when assessing penalties, the Commission must give ‘due consideration’ to four criteria: the size of the employer's business, gravity of the violation, good faith, and prior history of violations.” Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). The Secretary did not present any testimony at the trial as to how the proposed penalties were calculated. (Tr. at 351-353.) But the Commission is the “final arbiter” of penalties. Id. at 1622 (citation omitted). The Court has taken into account Respondent’s size of 50-60 employees, and prior history of violations submitted into evidence, for each of the affirmed violations. (Tr. at 441.) Due to Respondent’s lack of cooperation during the OSHA inspection as discussed above, no credit is given for good faith for the affirmed violations. (Tr. at 289.)

The Court has also considered the gravity of each violation. When determining gravity, the Commission considers the number of exposed employees, the duration of their exposure, whether precautions could have been taken against injury, and the likelihood of injury. Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001). Gravity is typically the most important factor in determining penalty. Capform, Inc., 19 BNA OSHC at 1378.

For the affirmed Serious Citation 1, Item 2, the unguarded table saw, the Secretary proposed a penalty of $2,800. The Court has considered the seriousness of the potential injuries, including impalement, associated with this violation, combined with the fact that, at least, two employees were exposed until the OSHA inspectors pointed out the condition, and that no precautions were taken to prevent injury while the violative condition was directly in front of the Respondent’s supervisors and the OSHA inspectors. The proposed penalty of $2,800 is assessed.

For the affirmed Serious Citation 1, Item 3, no GFCI protection, the Secretary proposed a penalty of $2,000. The Court has considered the seriousness of the injury, including electronic shock and burn, combined with the fact that multiple workers were exposed to the hazard until the OSHA inspectors pointed out the condition, and that no precautions were taken to prevent injury. The proposed penalty of $2,000 is assessed.

For the affirmed Serious Citation 1, Item 6, debris in the work area, the Secretary proposed a penalty of $1,600. The Court has considered the seriousness of injury, including puncture from falling on protruding screws, combined with the fact that at least two employees were exposed during the OSHA inspection, and that no precautions were taken to prevent injury. The Court notes again that, despite Respondent’s clean-up at the end of the work day, its workers were not warned of the hazard associated with the debris as evidenced by the workers walking on the debris in front of the OSHA inspector. The proposed penalty of $1,600 is assessed.

For the affirmed Repeat Citation 2, Item 1, the relocatable power tap, the Secretary proposed a penalty of $4,000. The Court has considered the fact that at least two employees were exposed during the OSHA inspection, and that no precautions were taken to prevent injury. The proposed penalty of $4,000 is assessed.  

For the affirmed Repeat Citation 2, Item 2, unprotected side or edge fall protection on a low sloped roof, the Secretary proposed a penalty of $14,000. The Court has considered the seriousness of injury, including death from falling more than 60 feet, combined with the fact that, at least, two workers were exposed up until the OSHA inspectors pointed out the condition. The court has also considered that Respondent took precautions to prevent injury by requiring fall protection and communicating its fall protection rule daily. The proposed penalty of $14,000 is assessed.

Findings of Fact and Conclusions of Law

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

                                                                       ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ordered that:

Item 1 of Citation 1 is VACATED.

Item 2 of Citation 1 is AFFIRMED as Serious and a penalty of $2,800 is assessed.

Item 3 of Citation 1 is AFFIRMED as Serious and a penalty of $2,000 is assessed.

Item 4 of Citation 1 is VACATED.

Item 5a of Citation 1 is VACATED.

Item 5b of Citation 1 is VACATED.

Item 6 of Citation 1 is AFFIRMED as Serious and a penalty of $1,600 is assessed.

Item 1 of Citation 2 is AFFIRMED as Repeat and a penalty of $4,000 is assessed.

Item 2 of Citation 2 is AFFIRMED as Repeat and a penalty of $14,000 is assessed.

 

 

                                                                                    /s/ 

                                                                                    The Honorable Dennis L. Phillips

United States OSHRC Judge

 

Date:   May 6, 2014

Washington, D.C.