Author: Costas Cyprus

Secretary of Labor v. Huen Electric, Inc. demonstrates the need for construction workers to be properly trained and competent when operating a powered industrial truck (“PIT”) such as forklifts, lift trucks, stacker trucks/pallet stackers, etc. Some of these PITS have a cabin for the operator, while in others the operator walks and controls from behind. On September 30, 2019, Huen Electric, Inc. (“Huen”) an electrical contractor was removing an electrical splice box from a vault approximately three feet below the floor of the Chicago Museum of Science and Industry. Huen’s foreman used a stacker truck he had borrowed from the museum to lift the splice box. During the process the splice box and stacker truck fell in the vault pinning one of the other workers and leading to serious injury.

As a result of the incident, OSHA cited Huen for two violations¹, although we shall limit our discussion to the violation pertaining to the lack of adequate training. According to the Citation, Huen had not ensured that the PIT operator was competent to operate the PIT, here a Toyota 6BWC15 Electric Counter Balanced Stacker Truck, by the successful completion of training and evaluation as specified in the regulation including but not limited to formal instruction, practical training and evaluation of the operator’s performance thereby exposing employees to struck by and crushing hazards.

Huen had been hired to upgrade the electrical system to the museum which required the removal of splice boxes located below the floor of the museum. Huen’s crew had previously removed four splice boxes by removing two-foot by three-foot concrete floor panels initially by hand and then by using a rented pallet stacker/forklift operated by the foreman to remove the covers from the vault. Once the covers were removed, the crew wrapped straps around splice boxes and removed them from the vaults using the rented forklift. The underlying incident occurred when Huen’s crew attempted to remove the largest splice box. Although the foreman and the crew were to use the same process as they had to remove the four prior splice boxes, there were some substantial differences with the operation starting with the fact that they did not have their rental stacker available and asked to and obtained permission from the museum to use its Toyota stacker truck (“stacker truck”), which is a hand-operated truck with an electric motor. Moreover, given that there was very limited space for maneuvering and the large size of the splice box, the foreman and crew engaged in significant planning for this removal, and he also reviewed the stacker truck’s manual for about an hour. They would also use straps wrapped around the splice box and then loop around the forks to raise it up from the vault. As the foreman attempted to raise the box from above the threshold, he briefly paused before releasing the parking brake by pressing down on the handle. At that point, the stacker truck did not appear unstable. The foreman then rotated the throttle to move the stacker truck away from the vault when he felt it move forward, towards the vault pit, tumbling into the vault and causing serious injuries to a crew member.

The foreman had approximately 30 years’ experience operating PITs and had no prior accidents until the subject incident. In each of his many jobs he had received some form of formal training mostly on forklifts where the operator sits in a cab. He had also received training on “walk-behind” stacker trucks in a previous job. The foreman’s prior work history and training were recapped but it also became evident during testimony that he had not received recent training on stacker trucks/pallet stackers in the past seven years from his last employer, nor current employer, Huen. Although Huen, through counsel attempted to emphasize the similarities between forklifts and pallet stackers, during the foreman’s testimony, he admitted that the “biggest difference” was the steering, braking and throttle. The foreman spent about an hour reviewing the operator’s manual on the Friday prior to the lift but had never previously operated the Toyota pallet stacker, although he had maneuvered it from the second floor of the museum down to the location of the splice box.

To prove a violation, the Secretary of Labor (SOL) must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was failure to comply with the cite standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or should have known of the condition with the exercise of reasonable diligence.

Here, the PIT standard which “contains safety requirements relating to fire protection, design, maintenance and use of fork truck, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines” clearly applied to the pallet stacker at issue. As to the second element, the Secretary of Labor claimed that Huen had failed to provide the foreman with training specific to this walk-behind stacker truck and had thus failed to ensure that he was a competent operator. Huen, countered with the foreman’s extensive history to show that the standard was not violated. However, the ALJ agreed with the Secretary since it found that Huen failed to provide training compliant with the standard or otherwise evaluate that its foreman was competent to operate this stacker truck. Irrespective of “whether the training is an employee’s initial training on a PIT or refresher training on a related yet different, PIT, such training must meet certain minimum requirements, including a combination of: (1) formal instruction such as lecture, discussion…written material; (2) practical training… and (3) an evaluation of the trainee’s performance in the workplace.” The standards provide who may provide the training, when additional training is necessary and requires the employer to certify that the operator is trained and evaluated. Here, the foreman’s own testimony indicated he did not have formal or practical training on stacker trucks and Huen had an obligation to ensure that he was in fact competent to operate the pallet stacker safely.

Although Huen provided Class IV Forklift training it had an obligation to provide training where forklifts and pallet stackers differed such as those that related to throttle, steering and braking and there was no evidence that Huen provided same ether as an initial or refresher training. The ALJ also clarified that an employer need not duplicate training already received by the operator in a prior training program but rather offer additional training based on the differences between the two PITs.

The ALJ found Huen’s employees were exposed to a hazard because they were working in proximity to the foreman who had not been properly trained and in fact one employee was seriously injured. Given that Huen had rented a different model stacker truck for the four previous lifts over the past six months, the ALJ found it reasonable to infer that Heuen was aware that the foreman was using stacker trucks on multiple occasions and therefore was aware of its obligations to train and evaluate him. A penalty of $11,934 was assessed for this violation.

¹ Violation # 2 pertained to modifications or additions to the stacker truck by use of the lifting straps, which were dismissed.

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Secretary of Labor v. TNT Crane and Rigging, Inc. demonstrates how companies must maintain work safety rules that not only specifically address the requirements of applicable OSHA safety rules and standards but that they also take measures to ensure adequate compliance. TNT Crane and Rigging, Inc. (“TNT”) is a crane service provider from Houston, Texas with more than 250 employees and numerous offices. On May 15, 2016, in Georgetown, Texas, a TNT employee was seriously injured during the disassembling of a crane when it contacted a power line. As a result of the incident, OSHA cited TNT for two violations of OSHA’s Cranes and Derricks in Construction Standards. The OSHA Review Commission ultimately affirmed both violations as against TNT.

On the incident day, four TNT employees (the crane operator, a spotter/rigger (SR1), a second spotter/rigger (SR2), and a driver) were completing the disassembly of a 275-ton mobile crane which had been used to install new antennas on a communication tower. All four employees met to discuss a plan for disassembly. The crane operator (and supervisor) created a job safety analysis (JSA) before the breakdown and discussed it with the three other crew members. The plan was for the crane operator to reposition the crane to lower the boom onto the semi-truck while SR2 would spot and hold the hoist line to keep it taunt, the driver would drive the semi-truck once the boom was on the flatbed and SR1 would spot and guide the truck. SR2 and the driver expressed concerns over the exact location due to nearby powerlines, but the crane operator reassured them it would be disassembled in the same location in which the crane was assembled and that there would be a 20 feet buffer zone from the power line. Therefore, the powerlines would be avoided. Nevertheless, as the crane operator was lowering the boom of the crane and retracting the hoist line, the load line came into contact with a powerline. SR2 who was holding the load line was electrocuted and sustained severe burns and other injuries.

After the incident, an OSHA Compliance Safety and Health Officer investigated. Although the officer was unable to inspect the original jobsite, the officer conducted interviews offsite with witnesses and took photos to recreate the scene. OSHA issued two citations: Violation # 1 – Exposure of employees to the hazard of electrical shock by failing to use at least one of the measures required to prevent encroachment or contact with power lines while disassembling a crane; Violation # 2 – Placing part of a crane and load, whether partially or fully assembled, closer than the minimum approach distance (MAD) to a power line.

To prove a violation, the Secretary of Labor (SOL) must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was failure to comply with the cite standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or should have known of the condition with the exercise of reasonable diligence. The cited safety standards clearly applied to the work that was being conducted at the time of the incident and that there was noncompliance and exposure to the hazardous condition. The issue that the Commission addressed in its most recent decision was whether TNT had knowledge of the violative condition, which it determined that it did.

Both violations rested upon the Commission’s reasoning that the violative conduct was collaborative here. It was not just the crane operator’s activities but the activities of the entire crew, collectively. As for Violation # 1, there was no dispute that TNT crew disassembled the crane without a required protective measure in place to prevent encroachment before disassembly began. Similarly, Violation # 2 involved the crew’s collective failure to maintain the required clearance during disassembly. Prior to disassembly, the crew conducted a JSA together and then met as group to discuss the work prior to commencement. Although two of the crew members expressed concerns, they were reassured by the other two crew members and all agreed to proceed. Therefore, the crane operator/supervisor’s knowledge of the other crew members’ violative conduct could be imputed to TNT, as is consistent with the relevant precedent.

TNT’s defense before the Commission was that the crane operator engaged in unpreventable employee misconduct (“UEM”). To succeed on that defense, TNT must show that it had established work rules to prevent violative conditions from occurring, adequately communicated those rules to its employees, took steps to discover violations of those rules, and effectively enforced the rules when violations were discovered. The Commission found that TNT failed to establish work rules that were specific enough to ensure the violative conditions from occurring.

As to Violation # 1, although TNT’s work rule shared some similarities with the OSHA standard, it did not provide the specific requirements mandating that an employer implement an encroachment prevention measure prior to crane disassembly to ensure that a 20-foot distance from power line is maintained when any part of the crane could breach that distance. TNT’s safety policy only mentioned one of the applicable provision’s numerous encroachment prevention measures.

As to Violation # 2, the Commission found that TNT did have work rules in place that addressed the requirement of the applicable standard and it properly communicated those rules to its employees through various trainings, safety programs/manuals, orientations, etc. However, TNT failed to sufficiently monitor compliance of those rules and effectively enforce them when violations were discovered and therefore could not establish a UEM defense. TNT claimed it monitored compliance through inspections and surprise audits by submitting inspection documentation that included safety checklists. Yet, this particular site was never inspected nor audited. TNT’s practices and the submitted documentation were insufficient as no one from TNT could provide details on how often worksites were generally inspected/audited, what kinds of sites were inspected, etc. TNT’s submitted documentation showed no evidence as to the effectiveness of their monitoring/auditing plan, except that one existed on paper. Lastly, TNT failed to establish they effectively enforced the rules when violations were discovered. Although the crane operator in this instance was discharged, TNT could not offer any other evidence of prior disciplinary action of an employee for violating powerline safety rules, which beggars belief given the size of the company. The fact that the crane operator and the rest of the crew collectively were involved in violative conduct actually was evidence of TNT’s lax enforcement of these rules.

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The matter of Secretary of Labor v. Henkels & McCoy, Inc. demonstrates how companies must heed their equipment’s manuals and be aware of the scope and extent of services provided to them from third parties to ensure proper equipment maintenance. This matter arose from a fatal workplace accident involving a crew leader who was operating an improperly maintained digger derrick. The crew leader was an employee of Henkels & McCoy, Inc. (H&M) which performs general utility maintenance. The underlying incident occurred on May 2, 2018, in Jacksonville, Florida where the crew leader and an apprentice were assigned to remove a utility pole when he was fatally injured.

H&M utilizes digger derricks for utility pole installation and removal. The digger derrick has a flatbed equipped with a boom and operator’s chair that sits atop a pedestal, which is attached to the truck’s frame and chassis. The digger derrick has eighteen rotation bearing mounting bolts that connect the gear ring, on which the operator’s chair and boom sit, to the flange atop the pedestal. The digger derrick’s manufacturer in their manual instructs owners to conduct annual torque testing with a calibrated torque wrench. A warning decal is also prominently placed on the pedestal repeating this instruction and warning that failure to inspect and properly torque the rotation bearing mounting bolts can cause structural failure and lead to death or serious injury.

H&M mechanics used to perform inspections of the company’s digger derricks that also included torque testing. However, in 2007, H&M entered into an agreement with third-party contractor, Diversified Inspections/ITL Inc. (“Diversified”) to provide semi-annual inspection services on the digger derricks. From 2011 to 2016, the companies further engaged in agreements setting forth the scope of Diversified’s inspections. Upon inspection, Diversified would complete a report noting any issues with the equipment and forward to H&M. In February 2018, Diversified’s inspection reports began including a disclaimer that it was not performing torque testing.

On the incident day, the crew leader was operating one of H&M’s digger derricks from the operator’s chair, while the apprentice was working on the ground when they both heard a “creak”. The crew leader stopped operating the digger derrick. Upon investigation, the apprentice found that one of the bolts had “sheared off” and was on the bed of the truck. The apprentice proceeded to check the other bolts and then informed the crew leader that they were tight. Upon resumption of work, the apprentice heard sounds and jumped off the truck and thereafter saw the boom falling and the crew leader being ejected from the operator’s chair to the pavement below. He would tragically succumb to his injuries.

OSHA investigated the incident and issued a citation alleging a serious violation of the Occupational Safety and Health Act’s general duty clause for exposing employee to struck-by and crushing hazards by failing to properly maintain the digger derrick’s bolts. Although, an Administrative Law Judge vacated the citation, the Administrative Law Commission reversed the decision, affirmed the citation and assessed a penalty of $12,934.

To prove a violation of the general duty clause, the Secretary (of Labor) must establish the following four elements: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.

As a preliminary matter, the Commission found that the manufacturer’s recall notice as to the digger derrick’s bolts had no bearing on the Secretary’s allegation in the citation as to H&M’s lack of maintenance of the digger derrick’s bolts to ensure that they are properly torqued. Therefore, it proceeded to analyze each element of the alleged violation with respect to the conditions as set forth in the citation, not in terms of the incident or design defect.

The Commission found that a hazard existed as indicated by the existence of the manufacturer’s decal and as per the testimony of the Secretary’s expert who opined that failing to torque test the bolts could result in fatigue failure, which could cause the bolts to “back out and fall out” from the connection and eventually cause the digger derrick to collapse. The existence of the manufacturer’s decal prominently displayed on the equipment and its inclusion in the manual was sufficient to establish industry recognition of the hazard. The Secretary further alleged that there existed a feasible method for abatement of the hazard by torque testing the bolts which as per their expert would uncover “worn out or deformed bolts” for replacement in a safe and controlled environment given that the manual called for replacement of all bolts if one breaks during testing.

The Commission also found that H&M had constructive knowledge of the hazard since H&M could have known about the condition through reasonable diligence. The Secretary argued that H&M failed to exercise reasonable diligence as they never required Diversified to torque test the bolts during inspection nor did they negotiate a price for that service. Further, the 2016 agreement between the companies did not include the service and in the months leading to this incident, Diversified’s reports specifically stated they were not performing such testing. Although, H&M argued that the torque testing disclaimer was self-contradictory because these reports stated that the inspections were performed in accordance with ANSI and OSHA standards, which would have included torque testing, the Commission found that although “the evidence relating to Diversified’s relationship with H&M and torque testing is not a model of clarity” it could have known that Diversified was not performing torque testing with the exercise of reasonable diligence. H&M had an obligation to determine how the torque testing was to be done for the safety of its employees and in fact had expertise in this area since it torque tested the digger derrick bolts prior to retaining Diversified while H&M’s mechanic continued to exercise day-to-day control over the machines.

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Secretary of Labor v. The L.E. Myers Co. shows the importance of adequate training, experience and equipment when working near energized lines. This matter arises from an unfortunate and tragic work-place accident involving a journeyman lineman for an electrical utility sub-contractor, L.E. Myers Co. (LEM) in Florida. On November 15, 2019, LEM assigned a four-man crew to transfer electrical distribution lines from an existing utility pole to a new utility pole. Due to the live electrical current, OSHA requires employers to determine the minimum approach distance (“MAD”) before its employees work near energized lines at a worksite. The MAD is the closest distance an employee may approach an energized or grounded object without taking specific safety precautions. At this site, the MAD was determined to be 2 feet, 2 inches.

The four-man crew arrived at the worksite around on the incident date and began to discuss their respective assignments. The crew consisted of the Foreman, two journeyman lineman (inclusive of the Decedent), and an apprentice. The Foreman conducted a pre-job briefing and had everyone sign a Daily Pre-Job Brief document. This document listed the steps for this assignment and included a checklist of the tools required. The document stated the assignment as “Move wires to new pole and hang arms and mac” and had a checklist for “PPE/Tools Required”. The Foreman checked of all tools on the required list including rubber insulating gloves and rubber insulating sleeves. The crew had two bucket trucks and one smaller “backyard machine”. The apprentice and Decedent were in these buckets, the JL in the backyard machine and the Foreman on the ground to observe.

The incident occurred when the Foreman called to the Decedent to lower his bucket to hand him a mac (a flexible wire with clamps at either end, used to bypass an area of an energized line so work can be done in the bypassed area). When the Foreman handed the mac to the Decedent, he did not notice whether or not the Decedent was wearing rubber insulating sleeves. The interaction was a couple of seconds and Decedent immediately raised his bucket back up to the height needed to determine if the mac length was acceptable. The Foreman, as the only eyewitness testifying, stated after he gave the Decedent the mac, the Decedent elevated his bucket and screamed down something along the lines of “that’ll work.” As the Foreman started to walk away to collect other macs just in case, the Foreman heard sizzling, popping and the jerking of the bucket. He looked up to realize Decedent was slumped over in his bucket. After cutting the mac, it was safe for Decedent to be lowered and receive medical attention. However, the electrocution resulted in Decedent’s death. The Decedent was found to be only wearing his rubber gloves, but not his rubber insulating sleeves. Two of OSHA’s compliance officers investigated the scene that same day, taking photos and interviewing individuals, but they did not conduct any measurements or simulations. LEM’s Foreman was discharged in December 2019. OSHA eventually cited LEM for three serious violations arising from the incident.

The ALJ found the Foreman’s testimony regarding the rubber insulating sleeve was sufficient as the Foreman was close enough to detect, with reasonable diligence, whether the Decedent was wearing the sleeve or not. In terms of assignment, the Foreman testified that he only wanted the Decedent to get close enough to measure the mac, which did not require the Decedent to breach the MAD. The Foreman explained that the task could have been done by not elevating the bucket to the height, however it probably would have been more difficult. He did not ask for the Decedent to install the mac, as installation would require all three crewmembers in position.

Item 1 of the Citation pertained to the Decedent not being trained or competent in the MAD skills and techniques in order to maintain a safe distance. Although recordkeeping of employment records is one way to keep track of an employee’s demonstrated proficiency, the ALJ here found that in fact the Decedent did have adequate training and proficiency by the evidence submitted and vacated this portion of the citation. Although, the Decedent had only worked with LEM for about two months, he had over 15 years of prior experience (via the apprenticeship and journeyman system) in his previous jobs, which required MAD training. Upon hiring, LEM provided the Decedent a New Hire Orientation Outline, which included the MADs and Decedent had received a copy of the Safety Manual which also addressed MADs. Furthermore, LEM’s Safety Engineer testified how they provide orientation and safety training for newly hired employees, periodic safety training, crew visits and onsite audits. Here, the Safety Engineer had interviewed the Decedent during his orientation to determine his knowledge and understanding of safety-related work practices, including MADs. Moreover, LEM’s supervisors including the Foreman were trained to closely observe new hires to ensure their proficiency, including on safety.

The other items of the Citation were based upon Decedent breaching the MAD without appropriate precautions and failures by LEM to ensure that no employee approaches or takes a conductive object closer to the exposed energy parts than the established MAD. LEM even had a “cradle to cradle policy” that stated that both the rubber insulating gloves and sleeves were to be worn when working on energized equipment on an aerial platform. However, the Foreman’s instruction to the Decedent was to perform work at a height not within the MAD. Only when the Decedent elevated his bucket to the height of the distribution lines and connected one end of the mac to the line did he breach the MAD. Since this occurred within mere seconds, the ALJ found that this fleeting moment did not establish a failure on the part of the Foreman to exercise reasonable diligence and supervision. The Foreman had worked with the Decedent for two months prior to the incident and never noticed any conduct that would alert him to heightened monitoring of Decedent’s safety practices. Therefore, these items of the Citation were also vacated.

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Secretary of Labor v. S&R Enterprises, LLC demonstrates the importance of adequately pre-planning all hoisting operations especially in the realm of steel erection, preferably in writing and with clear instruction to all involved employees to avoid accidents. This matter arose in Savannah, Georgia in June 2019 involving the hoisting of a grappler (a giant steel claw) that weighed 10,500 lbs., which was intended as a decorative element for a hotel lobby that became displaced, causing serious injuries to three workers on site.

S&R Enterprises, LLC (“S&R”) is a steel erection contractor who had been a subcontractor on a renovation project for roughly two years prior to the incident. The project was to re-purpose a decommissioned power plant and transform it into a luxury hotel. S&R was asked by the hotel owner to hang an industrial grappler (a giant steel claw) to the new hotel’s atrium lobby, as a decorative element. This request was not a part of S&R’s original scope of work, but they agreed to do so. S&R determined it would not be possible to position a crane in the area to perform a conventional lift. Instead, they decided to use an air tugger consisting of a drum and cable. To perform the lift, a padeye (a steel plate with a hole in it used as an attachment point) was welded to the east and west girders. The grappler was supported by these two girders. The plan was to run the wire rope from the padeye of the east girder to the rigging attached to the grappler, up to the padeye on the west girder and down to the air tugger which would pull the rope to raise the grappler.

Prior to the commencement of the lift, S&R’s vice-president prepared a written, activity hazard analysis (AHA) based upon the assistant superintendent’s drawing of the proposed plan. The AHA identified the job steps, hazards and controls of the operation with numbered instructions. It specifically mentioned how no workers were to be under the suspended load at any point during the lift. During the operation, the padeye on the west girder tore away causing the weight of the grappler and rigging to fall. The weight of grappler dragged the wire rope against the personnel basket of the aerial lift, damaging the basket and injuring two employees and another employee who was struck by a wire, while supervising the lift. The fall resulted in serious injuries and hospitalization of three workers.

After the incident, OSHA’s compliance officer came to inspect the site. Upon investigation he determined that the assistant superintendent had done no metallurgical testing to ascertain the strength of the girders. The compliance officer believed the measurement could have been taken prior to the lift to get a better calculation of the load of the girders. His opinion resulted in a two-item citation of two statutes. The first statute cited was for failing to adequately determine the lift, thickness, and strength of the steel erection hosting operation given that “all hoisting operations in steel erection shall be pre-planned to ensure that the requirements” of the applicable standard are met. The second statute cited was for not adequately rigging the hoisted material (the grappler) to prevent displacement. The matter was brought before an ALJ for OSHA’s Review Commission. Here, the facts were not in dispute but rather the interpretation of the steel erection standard’s requirements and definitions.

Whether the cited statutes applied depended first upon whether S&R engaged in “steel erection” when it attempted to raise the grappler to the overhead crane hook. By definition of the subpart of the cited statute, steel erection is the “construction, alteration or repair of steel buildings, bridges and other structures, including the installation of metal decking and all planking used during the process of erection.” Steel erection activities include installation of miscellaneous metals, ornamental iron and similar materials. Therefore, the ALJ determined S&R’s activities fell within this standard.

Although S&R at the time was deemed to be engaged in “steel erection” activity, the Secretary failed to establish S&R was noncompliant with the cited statutes. Even though there was no written requirement to have a pre-plan of the hoisting, in writing, S&R had developed a written activity hazard analysis prior to the lift. The failing of the girder to sustain of the weight of the hoisted load was not considered/planned for by S&R. Although the failure to calculate load capacity was a significant omission, it was not addressed by the cited standard which required an employer to preplan the route of the suspended load so that no employee was required to work under it. Here, there were specific instructions in S&R’s AHA to not be under the load, but employees acted contrary to this instruction. How the lift was preplanned and how the lift actually transpired were separate issues and the ALJ found that the Secretary failed to establish that S&R violated the applicable standard and thus vacated this citation.

As to the second citation, in terms of failing to prevent displacement of the hoisted material, here the grappler, the ALJ inquired about the definition of “load” in this context and found that the structure that supports the weight being hoisted cannot, by definition, be a part of the load. Therefore, the west girder which caused the fall was not part of the materials being hoisted. Although S&R failed to accurately assess the load capacity of both east and west girder, that is not detailed in the cited statute for this violation and the “failure of the lift is not enough…to establish S&R violated the standard the Secretary chose to cite.” Evidence was not presented showing S&R rigged the load incorrectly or the equipment it used was faulty and therefore this citation was vacated as well.

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Secretary of Labor v. Miller Insulation is an instructive case showing the need for safety programs that include proper training, guidance and communication for fall protection. This matter arose from an accident and tragic death of an employee of Miller Insulation, on April 19, 2019, in North Dakota, who fell from the edge of a mezzanine floor where the wooden floor met a drop ceiling with a nine-foot height differential.

Miller provides insulation services with approximately 600 employees. Here, Miller was to repair insulation on piping and valves and replace stained ceiling tiles at a school. Approximately, a month prior to the accident, Miller’s superintendent conducted a walk-through of the worksite with the superintendent of the general contractor. They both reviewed the punch list of items to be completed and took photographs. During the walk-through they climbed a ladder to enter a mechanical room on a mezzanine floor, above. The mezzanine had wood flooring that did not extend all the way to the walls at each end of the floor. Between the end of the wood floor and walls were thin tiles placed on metal grid, which served as drop ceiling for the hallway below. The superintendents spent about five minutes and did not identify a clear hazard, but Miller’s superintendent requested that the overall area have better illumination.

On April 19, 2019, Miller’s superintendent met with Miller employee, Mr. Andrade, and two workers to discuss the repairs and reviewed the punch list items and photographs. The superintendent could not go the site that day but rather instructed Mr. Andrade to meet with the GC’s superintendent to also go over the work and two look after the two employees. They arrived at the site, Mr. Adrade met and discussed the work with the GC’s superintendent and then directed the two employees to only complete the repair work depicted in the pictures. They were not to look outside this original scope and were to call a supervisor for permission to conduct additional work. After commencement of their work on the mezzanine, Mr. Andrade heard one employee yelling that the other employee had fallen and was injured. This employee would ultimately be taken to the hospital and would unfortunately pass from his injuries. Miller’s subsequent investigation revealed that Mr. Andrade had only partially completed a Job Hazard Assessment (“JHA”) before starting work because he “spaced out on it”. He was subsequently disciplined suspended. Accident reports were completed, photographs were taken, and it was determined that there was adequate lighting on the mezzanine, including in the area, where no work was scheduled to be performed and the deceased employee had been working. OSHA conducted their own investigation and determined that employee had been exposed to fall hazard next to an un-protected edge that had at least a nine-foot height differential from floor to the drop ceiling below and issued a citation for an OSHA violation. The matter was brought before an ALJ for OSHA’s Review Commission.

The cited standard required Miller to ensure that each of its employees on a walking/working surface with an unprotected side or edge, 6 feet or more above a lower level, were protected from falling by use of guardrail systems, safety net systems, or personal fall arrest systems. Here the record was clear that Miller’s repair work fell under OSHA’s definition of “construction work” and that Miller violated the applicable safety standard and that its employees had been exposed to a fall hazard.

However, Miller raised the “employee misconduct” affirmative defense and the ALJ found that the evidence showed that Miller did not have actual or constructive knowledge of the hazardous condition of the victim working from the mezzanine’s un-protected edge without fall protection. Miller’s superintendent nor Mr. Andrade had knowledge of the hazard as neither identified a clear hazard while either observing or working at the site. The fall area had no scheduled work, was 20 feet away, and partially barricaded by pipes from the work he was instructed to complete. Mr. Andrade’s never directed the deceased employee to work in the fall area since no work was required there.

Miller established that it had work rules and policies that communicated fall protection for employees working at or above a height of six feet, including in a safety handbook (providing specific fall protection rules and guidance), an employee handbook, a Work-Place Accident and Injury Reduction Act Program, a Risk and Hazard Assessment Program, Safety Manuals, all distributed to, and available to employees. They also conducted toolbox talks (including 30 in the prior incident year on fall protection alone), employee orientation tests, and provided safety handouts. Miller’s safety program required use of guardrails and barricade warning tape, along with fall protection while working near unprotected sides/edges. Miller adequately communicated its rules on fall protection through orientation videos, its work rules and distributed literature, as well as making its employees receive training through OSHA 10/30 trainings. Here, the record showed that both the deceased employee and Mr. Andrade were well aware of the work rules and Mr. Andrade had even provided the deceased employee hands-on training included direction to tie off any time when working six feet above ground away from an edge. Miller took reasonable steps to discover safety violations, employed six safety coordinators who consistently audited jobsites while safety superintendents would also visit jobsites at least once per week. Miller also incentivized employees to identify safety violations under a “good catch program”. Lastly, Miller took reasonable steps to enforce violations to its fall-protection rules that included write-ups and terminations for repeated failures. Here, Mr. Andrade’s failure to fully complete a JHA led to disciplinary action for his failure to follow the work rules and ultimately his termination. The ALJ found that Miller had met its burden of proof regarding the affirmative defense of unpreventable employee misconduct and vacated the OSHA citation.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

Secretary of Labor v. 84 Lumber Company shows the importance and need to have proper Work Rules in place that are adequately communicated to and known by employees for their safety and the safety of others, in the loading/unloading of building materials. Despite the tragic outcome and death of a truck-driver on November 19, 2019 during the loading of lumber bundles on a trailer-bed, the ALJ in this Texas case, found that the no OSHA safety standard was violated in this instance where the lumber company had in place proper work rules that had been communicated to its employees to never allow people to work under elevated loads or pass under the elevated loads of forklifts given the substantial evidence of employee training and the facts in this matter.

The Respondent, 84 Lumber Company (“84 Lumber”) was a vendor of building materials, primarily lumber, to contractors for construction projects, with multiple stores nationwide. 84 Lumber’s store (the “store”) in Houston, Texas, contracted with BLS Trucking (“BLS”) for the delivery of this store’s customer orders to respective jobsites. The same BLS drivers, approximately, seven to ten, generally were assigned to work at store. 84 Lumber had a “Work Rule” in place that instructed and communicated to its employees to not let anyone ever work under the elevated loads or pass under the elevated loads of forklifts.

84 Lumber employees would prepare and assemble the order into different bundles/loads of lumber. The next phase would involve an employee known as the dispatcher who would operate a forklift to load the lumber bundles onto the BLS trailer. At the time of the accident, BLS’s drivers were instructed to remain at the side of the truck, away from the operating path of the forklift, while the dispatcher operated the forklift and thus well outside the 180-degree radius comprising the “zone of danger” of an active forklift. Once a bundle was loaded onto the dispatcher’s forklift, the dispatcher would approach the BLS truck trailer and lower the bundle down to approximately four inches above the truck bed. At this point, the dispatcher would put the forklift in “neutral” and activate the safety brake. Following this, either the dispatcher, or the dispatcher with the assistance of the BLS driver, would, if necessary, place wooden dryers (to make it easier to insert the forks of the forklift under the bundle) under the slightly elevated bundle. The workers placed the dryers while standing on the ground to the side of the truck bed by sliding them under the slightly elevated bundle. Given the location of the bundle over the bed of the truck trailer, the workers passed behind the stationary forklift to place the dryers on either side of the bundle. Thus, at no point would the placement of dryers cause the dispatcher or the BLS driver to pass under either the forks of the forklift or the slightly elevated bundle (of about four inches) over the truck bed.

The circumstances leading to the underlying accident involved a BLS driver who after waiting between the semi-truck and the truck’s trailer while bundles were being loaded, approached the dispatcher and asked him if he could move a bundle to the other side of the truck bed so that the “strap c[ould] match up.” At this point in time, the BLS driver was standing in front of the front wheel of the trailer. The dispatcher obliged and loaded the requested bundle onto the forklift and then began to back away from the trailer. As the forklift was about two to three feet from the trailer the BLS driver “out of nowhere” ran underneath the forks of the forklift and the elevated bundle and told the dispatcher to get another “bite” on the load. The dispatcher yelled at the driver at least three to four times get out from underneath the elevated bundle and also honked the horn, but the driver did not listen and instead kept telling the dispatcher to back-up. The dispatcher continued backing up fearing that an abrupt stop would cause the bundle to fall or forklift to topple. After a matter of seconds, the bundle fell off the forklift onto the BLS driver, killing him. OSHA investigated and issued a citation based on the belief that 84 Lumber did not have a process in place to inspect or enforce its Work Rule. During the proceeding, BLS’s supervisor acknowledged that BLS trained its drivers to never work under a forklift’s forks or suspended loads and both BLS’s supervisor and 84 Lumber’s manager stated this Work Rule was common in the industry because of the obvious dangers.

Given the Work Rule in place and circumstances, there was no explicit permission for the BLS’s driver to have stood under the elevated load. However, the Secretary argued the practice of placing dryers under elevated loads as evidence of 84 Lumber’s implicit permission to walk under them. The ALJ disagreed as the evidence showed that the policy in place was that BLS drivers had to wait outside the zone of danger for an active forklift and dryers were only placed under the load when it had already been lowered three to four inches from the truck bed and from standing on either side of the now inactive forklift, and not on top or below the elevated load. Although workers were close, in proximity, to the load they were not implicitly permitted to be under it. Following the accident, BLS also instituted a new policy requiring drivers to now stand in a designated “muster area”, further away from the loading area.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

The Decision in Secretary of Labor v. Petrongolo Contractor’s Inc. is an instructive case for contractors especially those involved in excavation and highlights multiple issues regarding the Occupational Safety and Health Review Commission (the “OSH Commission”) process, the burden of proof and severity of penalties and the considerations made by the Administrative Law Judges who hear these matters.

Petrongolo Contractor’s Inc. (“Petrongolo”) is a public utility contractor primarily engaged in excavation work. On January 27, 2020 it was excavating a trench in a city street in Philadelphia to access a sewer line owned by the Philadelphia Water Department (“PWD”). Petrongolo had to remove the existing manhole and replace it with a larger precast manhole for its subcontractors to be able to access the sewer for relining. Petrongolo removed the existing manhole and dug a trench which was about 10 feet deep from street level to the top of the sewer pipe and the footprint of the trench was 10 x 6 feet. The gas utility, Philadelphia Gas Works (“PGW”) had its own gas main running parallel to the sewer line, and it became concerned that Petrongolo’s excavation would compromise the integrity of its gas main, and its employee caused Petrongolo to stop work, in the early evening on January 27, 2020. PGW’s employees took pictures of the trench in the evening of January 27 and the morning of January 28 and contacted OSHA to report a hazardous excavation. OSHA sent one of its Compliance Safety and Health Officers to the site on January 28, 2020 which led to the issuance of two citations under Safety and Health Regulations for Construction’s Requirements for Protective Systems under 29 C.F.R. § 1926.652(a)(1) and (c)(1).

Citation # 1 alleged a serious violation of Design Support Systems utilizing published appendices for the design of timber shoring in trenches with a proposed penalty of $3,393. Citation # 2 alleged a repeat violation “for failing to ensure that each employee working inside an excavation of approximately twelve (12) feet deep were protected by cave-in protection” and proposed a penalty of $29,687. To establish a violation of such standard, the Secretary (of Labor) must prove by a preponderance of the evidence (the legal standard where a party is able to convince a fact finder that there is a greater than 50% chance that their claim is true) the following: (1) the cited standard applies; (2) there was non-compliance with its terms; (3) employees had access to the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition.

The matter was brought before the Commission with remote hearings and submissions before the Administrative Law Judge (“ALJ”) who decided that the Secretary failed to prove by a preponderance of the evidence (a legal standard where a party is able to convince a fact finder that there is a greater than 50% chance that their claim is true) that Petrongolo failed to obtain the soil type in determining the proper configuration of timber shoring that was installed on January 28, 2020. Consequently, Citation # 1 was vacated.

However, the ALJ found that the Secretary proved (by a preponderance of the evidence) that Petrongolo employees were working in a trench that lacked an adequate protective system and that Petrongolo had knowledge of it. Further, Petrongolo failed to rebut the Secretary’s showing that this violation was similar to Petrongolo’s prior violations of the same standard and thus constituted a repeat violation warranting a $22,000 penalty.

Citation # 1 alleged that Petrongolo failed to obtain the soil type to determine the proper configuration when using timber shoring in accordance with the conditions and requirements set for in appendices A and C of § 1926.652(c)(2). Appendix A requires a “competent person” to perform at least one visual and one manual test on the soil to determine soil type and it sets for a series of acceptable visual and manual tests. Petrongolo’s president who was a registered professional engineer with years of experience in testing soil and performing excavations in the local area was deemed a “competent person” and his manual and visual test of the soil were in conformance with the requirements. Even if Petrongolo’s president had failed to conduct the visual and manual tests, the determination that the soil type was “Type C” (the least stable soil type as per the classifications under Appendix A), pursuant to the OSHA’s own interpretations, made “soil testing … superfluous and not required” if the protective system is adequate to protect against cave-ins in Type C soil.

Citation # 2 alleged that Petrongolo failed to provide adequate safety devices for cave-in protection to workers inside an excavation of approximately twelve (12) feet deep. The trench was over five feet deep and constituted as hazard for as long as it was open and lacked an adequate protective system from the time the steel plates covering it were removed up until the time Petrongolo’s crew completed installation of the timber shoring. The photographs taken by PGW’s workers showed workers inside the trench and the fact no other contractor or subcontractor had been working in the trench area provided sufficient circumstantial evidence that Petrongolo’s own employees were working in that area. Moreover, the ALJ found that since Petrongolo’s foreman was present at the site, and gave directions to the employees, he would have had actual knowledge of the of violative condition, or at minimum, based on the weight of the evidence, he could have discovered or prevented the employees’ violative conduct so as to impute constructive knowledge on Petrongolo.

Petrongolo had been previously cited for violations arising from failures to provide adequate protective systems for which it had entered into settlement agreements. Here, the ALJ found that the Petrongolo employees had been exposed to substantially similar, although not identical [cave-in] hazards that led to those two prior violations.

In assessing penalties, consideration is given to four criteria 1) The gravity of the violation; 2) The size of the employer’s business; 3) The employer’s good faith; and 4) the prior history of violations. Gravity (of risk) is the primary consideration and determined by factors such as the number of employees exposed, duration of the exposure, precautions taken against injury and likelihood that an injury would result. Here, the gravity of the violation was considered high, and coupled with two similar prior violations for the same standard within two years clearly constituted a prior history and lack of good faith. However, the business’ small size was also considered. In light of all these circumstances, a $22,000 penalty was assessed.

This matter shows that adequate protective systems must be in place during excavation work when it is contemplated that workers will be present within a trench, as it is an open hazard, even during the interim. In this case, the timber shoring protective system that was ultimately installed was proper but adequate protective systems had not been installed throughout the entire time that employees actually worked in the trench as documented by photographs taken by PGW’s employees, creating a cave-in hazard and leading to the citations. Moreover, a contractor’s prior violation history for substantially similar violations will be considered during the assessments any penalties.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

Citation contest proceedings before the OSH Review Commission, while subject to specialized procedural rules, for the most part are litigated under the Federal Rules of Civil Procedure, as govern civil lawsuits in the U.S. District Courts.

Thus, while the same is infrequently resorted to, contest proceedings are subject to the summary judgment procedures of the FRCP.  For you nonlawyers, summary judgment permits courts to better manage their dockets, curtail proceedings, and avoid trials, in the limited class of cases in which either side can show convincingly that there are no “material facts” (i.e., facts on which the outcome of the suit depends) as to which there exists a genuine dispute requiring a trial.

While summary judgment is to be employed sparingly, it is appropriate where all of the facts that will determine the outcome are admitted, or the evidence concerning them is so one-sided that it is obvious that the party moving for summary judgment must prevail as trial.

The party deeming itself entitled to summary judgment presents a motion to the court, annexing evidence (transcripts of pretrial deposition testimony, probative documents, etc.) and a legal memorandum explaining the basis for the motion. In assessing whether genuine fact issues exist, the court must resolve all ambiguities, and draw all reasonable inferences, in favor of the nonmoving party.

In my many .years of experience litigating in federal and New York state courts, I have observed that, while judges look with favor on opportunities to pare their trial dockets, they are aware that appellate rulings overturning orders granting summary judgment greatly outnumber those reversing denials of summary judgment.  Where the issue is doubtful, therefore, such a motion is unlikely to succeed.

In my extensive review of decisions in citation contest proceedings, I have seldom seen summary judgment attempted .by employers, no doubt in large part because preparing papers, and arguing such a motion, is labor-intensive on the part of the respondent’s counsel (which is to say, expensive).  In the usual case, the penalty amounts at issue are often far less than in federal civil lawsuits, and the legal costs to be saved by a successful motion are often not enormous (.as pretrial discovery procedures are less extensive than in regular lawsuits, and lengthy trials are uncommon).

However, as illustrated by Secretary v.  Harvestland Constructors, Inc,,  a garden-variety fall-protection case, it may be worth asking your attorney to ponder whether the Secretary’s case has an ”Achilles’ heel,” that could make it susceptible to a summary judgment motion.

Harvestland involved a single-item citation, alleging that the employer had violated the OSH Act, by exposing employees to falling through holes in elevated working/walking surfaces by the nonuse of personal fall arrest systems, covers, or guardrail systems erected around such holes.

Most of the relevant facts in this case were undisputed.  An experienced, 66-year-old carpenter, had a continuing assignment to identify and cover uncovered holes in the flooring on a project in Georgia.  Most of these “penetrations” had been created to allow equipment to be passed from one level of the floor to another.  When a hole was observed, this individual, named in the decision as “Carpenter NM,” would cover it with ¾” plywood, and secure the plywood sheeting with cleats, nailed in to prevent slippage.

On the afternoon of the day in question, Carpenter NM, who had been performing this work on the project for about 3 weeks, was working alone (as he usually did) on the second floor of the structure.  

All Harvestland employees were required to use fall protection when working 4’ or more above ground level, supervisors inspected the site several times daily for compliance, and an outside consulting firm performed monthly safety inspections. This employer had a site-specific safety plan, conducted weekly safety meetings, and sent home workers observed to be in violation of safety rules.

Carpenter NM was up-to-date in his training, had been supplied with a personal fall arrest system, and had often been observed utilizing fall protection.  In five years of employment with Harvestland, he had never been cited for safety violations.

On his last afternoon, Carpenter NM covered and nailed down the cleats on nine of thirteen openings existing on the second floor.  About ten to fifteen minutes after returning from a break, he fell through an  uncovered hole, and plunged 38 feet to his death.  For reasons unknown, he was not wearing fall protection at the time.

Of the four elements constituting the Secretary’s burden in order to prove the violation, three were open-and-shut in favor of the government.  Since Carpenter NM was working on a surface with openings far above the floor below, the necessity for fall protection was clear.  Two additional elements — namely, a failure to comply with the fall protection standard and employee exposure — were established beyond question by the fact that Carpenter NM was not using fall protection when he fell 38 feet.

However, three elements out of four will not do, and on the fourth element — actual or constructive knowledge of the violative condition on the employer’s part — Harvestland prevailed, winning summary judgment and the vacatur of the citation.

The Secretary, as the Court found, had to prove either that the employer (through a supervisor) had actual knowledge of the infraction, or that its inadequate safety program was such that a finding of constructive knowledge could be made, based on the conclusion that had the employer exercised due diligence, the violation would have come to a supervisor’s attention.

In a detailed analysis set forth in her decision, the ALJ ruled for Harvestland, because there was no triable issue that it had actual or constructive knowledge that the decedent had been working around openings in the floor without fall protection.  The judge cited facts (many of them corroborated by the testimony of the Compliance Officer) concerning (among other things) the employer’s work rules, and its generally praiseworthy safety training, surveillance of its workforce, and rule enforcement.  Since these factors disproved constructive knowledge, and no basis existed to find actual knowledge, the citation had to be vacated.

The ALJ rejected, as immaterial, the Secretary’s contention that the arguably defective condition of a nylon strap on the harness that Carpenter M was not wearing established the violation.

Not many contests will present a strong case for summary judgment, but given the unpredictably of trials generally, and what witnesses will testify to in particular, your case should be carefully analyzed to determine if summary judgment might offer prospects of success.

Geoffrey S. Pope, an attorney practicing construction law and commercial litigation, after many years with Welby, Brady & Greenblatt, LLP, is joining the firm of Cermele & Wood, LLP, in White Plains, New York.  .The articles in this series do not constitute legal advice, and are intended for general guidance only.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445