Author: Thomas H. Welby

You probably know that if the employer contests an OSHA citation, the trial will be before an Administrative Law Judge (ALJ).  (Note that, throughout this article, we are discussing proceedings in cases governed by federal OSHA, not “Little OSHAs” which exist in some states).

What you may not know is that once the trial of a citation is completed, and the ALJ renders a decision, things sometimes get complicated.  In civil litigation in New York State courts, generally there is one, and infrequently two, levels of appeal “as of right,” in which the merits will be addressed without the necessity of first asking the court’s permission.  And, in both New York and federal practice, the lawyers will virtually always know, from the inception of proceedings in the trial court, to which tribunal(s) any appeal(s) from the trial-level outcome will go, and there is rarely, if indeed ever, more than one possibility.  If you have a lawsuit in New York State Supreme Court, the first appeal will be to the Appellate Division in whichever of the four Departments the trial court was located.  If your suit is in a United States District Court, the appeal goes to the Court of Appeals in the geographical Circuit in which the District Court is located.

Uncertainty as to the identity of a potential appellate tribunal is unsettling, because for multiple purposes (including, among other things, the advisability of pursuing settlement, and how tough a settlement posture to assume) it’s critical to know which jurisdiction’s judge-made law will be applied.

Appellate courts “make law” in the form of judicial precedents, but each system has its own rules, regarding which appellate courts’ precedential decisions must be followed.  In New York practice, all lower courts must defer to the Court of Appeals (just as, in federal practice, decisions of the United States Supreme Court trump all lower court decisions).

However, if of the four New York Appellate Divisions only, say, the Second Department (and not the New York Court of Appeals) has decided a particular issue, a trial court, sitting in the First Department, must follow the Second Department precedent (although the Appellate Division, First Department or, of course, the  Court of Appeals, can overrule it).

In federal practice, while trial courts often choose to follow precedents from Circuit Courts, where their own Circuit and the Supreme Court have not spoken to the issue (especially if there exists a clear “majority rule”) such precedents are generally mere “persuasive authority,” rather than “governing precedent,” leaving the trial judge no choice but to adhere to it.

Our reason for this lesson in jurisprudence is to highlight how complicated, even exotic, OSHA appeals can be.  A party aggrieved by an ALJ’s final determination of a citation contest can petition the three-member OSH Review Commission for review.  Such review is discretionary (in OSHA practice, there are no appeals “as of right”).  One peculiarity is that, while neither the New York Appellate Division nor the U.S. Court of Appeals can decide a matter on which neither of the litigants has sought its intervention, the Commission can do so whenever it pleases, at the behest of even a single member.

Another unusual feature is that any of as many as three U.S. Courts of Appeals have both concurrent jurisdiction to review an ALJ’s decision, and the authority to review a final determination by the Commission.  Such review is always discretionary, and will seldom be granted, if the party requesting it has failed to first request review by the OSH Commission.

If you are unhappy with a final ALJ determination — and keeping in mind that (as in most civil litigation) appeals addressed to strictly legal issues enjoy greater prospects of success than those based upon findings of fact — your attorney must carefully examine the decision, identifying the legal issues that might affect the outcome, and (prior to picking a tribunal) the precedents in the Commission’s own, copious body of precedents, plus relevant precedents in the U.S. Courts of Appeals for the Circuits (1) in which the violation allegedly occurred; (2) in which the respondent has its principal office; and (3) for the District of Columbia Circuit.  (Cases from the U.S. Supreme Court, although rare, must also be checked for.)

If relevant precedents vary, as among the Commission and the several Courts of Appeals that have jurisdiction, this rare opportunity for “forum-shopping” requires that counsel pick a suitable forum only after careful research, in order to select the friendliest body of precedent.

This month’s case illustrates the Commission reviewing, and reversing, an ALJ decision that had vacated a single-item citation.  In Secretary v. Briones Utility Company, the OSHA compliance officer had seen the respondent’s employee, briefly, in a trench 10 feet long, 3 feet wide, and 7 feet deep in Type “C” (the most unstable type) of soil.  The trench was partially shored, with aluminum hydraulic shoring, at one end.  Shoring installed in the trench included two hydraulic cylinders (pistons), one above the other, that spanned the width of the trench, and pressed against vertical rails on either side.  Sandwiched between the rails and trench walls were 4-foot-wide, 8-foot-tall panels.  Measured from the center line of the cylinders, the distance to the closer end of the trench was 2 feet, and the distance to the farther end was 8 feet.  The employee was seen to be barely inside the zone within the trench in which the walls were covered by the panels, and — albeit at the direction of the Compliance Officer — he ventured briefly into what appeared to be the “unprotected zone” within the trench, in order to retrieve a ladder.

Of the elements necessary to establish the violation, only employee exposure was in controversy.  At the trial before the ALJ, while it was beyond dispute that, at the moment of the CO’s seeing the lone employee in the trench, a portion of the trench was without protection (and that the required “adequate protective system” was not completely installed) the respondent maintained that its employee was in the process of preparing the trench for the installation of an additional shore.

The ALJ found the employer’s argument convincing, as well as its further argument that the employee’s position when photographed, on the borderline of where the shoring was located, with his upper torso leaning slightly outside of the fin form, did not constitute employee exposure, especially given the CO’s concession that the true zone of protection extended a short distance (“a good two to three feet”) beyond the edge of the shore.

The ALJ vacated the citation, finding essentially that, given the lack of a definitive understanding of the protective area of the existing shoring, the Secretary had not established the violation, and that the key to the adequacy of any shoring system was whether it protects employees from a cave-in.  The fact that the entire trench was not shored, the ALJ found, did not mean that it was a violation that an employee stood in the area protected by the single shore.

As for the fact that no barrier prevented the employee from accessing the unprotected portion of the trench, the ALJ reasoned that the employee had available an egress that did not require him to pass through the unprotected zone; that clearly the respondent had (and its employees obeyed) a policy of not working in a trench without proper protection, and that the employee’s presence was necessary and calculated to facilitate the installation of additional shoring.

The Commission reversed the ALJ, affirmed the citation, and imposed a modest $1,000 penalty.  Its essential findings were twofold.  First, the Commission found that exposure had been established, in light of the predictability that the employee could stray into the “zone of danger.”   As for the respondent’s argument based on the necessity of the employee’s presence to prep the trench for the installation of an additional shore, the Commission found this to be an affirmative defense, on which the employer had the burden of proof; and that contrary to the company’s claim, the record did not show that the employee’s presence was truly necessary for the additional shore to be installed.

The nature of the construction industry is such that, if you run a construction company, you are — for better, for worse, and until death do you part — in a partnership with OSHA.

From year to year, construction accidents account for more than one-sixth of all workplace fatalities.  (In 2014, according to the Bureau of Labor Statistics, the figure was 18.65%).  It’s good news that, overall, work-related fatalities have dropped from about 16,000 in 1951, to fewer than 5,000 today (as the U.S. population has doubled, and the number of job-holders has more than doubled).  For the last dozen years or so, the incidence of workplace injuries and deaths has tracked steadily downward (excepting only one year, 2012).  For these gains in workplace safety, the OSH Act and, yes, even those pesky inspectors, and great strides made in management awareness, can rightly claim some of the credit.

However, in truth, the remarkable reductions in workplace injuries and deaths are largely a function of reductions in the percentage of the workforce in such high-risk occupations as farming, mining, and logging; the outsourcing of much manufacturing; and the fact that, today, roughly 83% of American workers are performing services, rather than producing goods.

Construction work has been, and must continue to be, made safer.  However, putting up buildings and tearing them down can’t be made wholly injury-free and, even with the advent of modular construction techniques, there are constraints on how much construction work can be outsourced overseas.  Thus, as fewer and fewer Americans are engaged in inherently dangerous jobs other than construction, even with the progress we have made, and our best efforts going forward, the injury and illness profile of the construction industry is likely to become more (and not less) conspicuous, as a contributor to workplace mayhem.  As such, it will continue as a primary target for OSHA enforcement.

So, if you hope to stay in business as a construction contractor or subcontractor, you need to get used to the idea of being, so to speak, “married” to OSHA.  Like most “spouses,” OSHA will, from time to time, scrutinize your behavior, and point out things you have done wrong.  However, while even the most rewarding moments in your relationship with OSHA will ever rival the birth of your kids, or a vacation in Paris with your real-life mate, OSHA is not entirely about finding fault with your health and safety performance.

In addition to conducting inspections and handing out citations, OSHA engages in a number of programs intended to educate employers, and help them avoid not only citations, but injuries and illnesses to their workers.  It’s important, certainly, to keep your OSHA citations to a minimum, notably because too many citations can hurt your ability to get work (especially on public projects) or even put you out of business.

However, while our firm counsels clients in negotiating with OSHA and contesting citations that we think were wrongly issued, Safety Goal #1 isn’t to never get a citation, or to succeed in getting your current OSHA citation vacated, or downgraded.  Rather, it’s getting every employee home safe every night, with serious injuries few and far between.

To that end, OSHA recently came out with a helpful tool in building, from the ground up, a safety program for a construction-industry business.  This guide (released in October 2016, and available for free online on the OSHA website, www.osha.gov) is entitled “Recommended Practices for Safety & Health Programs in Construction,” and is useful also in evaluating and improving an existing safety program.

New York poses special challenges to construction employers.  One of them is that OSHA mandates that your workers be trained in a language they can understand.  English and Spanish covers roughly three-quarters of the New York City population, but the remaining 25%, more or less, when at home speak Chinese (in one of its many variants), Haitian Creole, French, Russian, Yiddish, Hebrew, one or another of the Indic languages (Hindi, Punjabi, Gujarati, etc.), Arabic, and literally hundreds of other tongues.  Getting safety manuals translated into Navajo, or classroom safety training in Somali, can be a daunting task.  (This issue isn’t unique to New York City; the Buffalo public schools now offer instruction in 85 different languages).

An imperfect safety program is better than none at all, and, frankly, not a few companies scrape by, with little more than (1) some demonstration by management that safety is important; (2) supervisors who are well-trained, and “no nonsense” in enforcing safety rules; and (3) harping repeatedly on the 10-15 hazards that are primary in construction, or peculiar to your trade.  Think: falls from heights, electrical hazards, “struck-by” injuries (vehicles, falling objects), getting caught in-between objects and materials, fires and explosions, heat stroke and over-exertion, accidents while using machinery, slips, trips and falls, and trench collapses.  Is the foregoing enough to satisfy OSHA requirements?  No, certainly, but if you did nothing more, you might avoid fatalities.

Even if your outfit is too small to support a dedicated safety team, and professionally-written, multi-lingual and color-illustrated safety manuals, you can and should develop a safety program that will get the job done, thereby minimizing both injuries and OSHA citations.

Especially if your company is a start-up, or is growing from mom-and-pop status to a more substantial entity, the OSHA guide is a fine place to start in developing or upgrading your safety program.

OSHA claims that one study, of small employers in Ohio, found that workers’ comp claims (and the cost per claim, average work time lost, and number of very large claims) plummeted where companies adopted programs like those described in its “Recommended Practices.”

OSHA’s “Recommended Practices” aren’t a new set of standards that must be followed, and indeed they stress that they are a framework only, and not a comprehensive, “one size fits all” system.

However, just by reviewing the “Nine Easy Things to Get Your Program Started” (several of which have been stressed in past articles in this series) you will get an idea of how helpful the “Practices” can be in formulating your program.  The “Nine Easy Things” are as follows:

1. Always set safety and health as the top priority.
2. Lead by example.
3. Implement a reporting system (and ensure that workers do not fear retaliation).
4. Provide training.
5. Conduct your own inspections (especially of new activities, new materials, or new equipment).
6. Collect hazard control ideas.  Get your employees involved.
7. Implement hazard controls.
8. Address emergencies, and plan your response to future emergencies.  (Example:  a few months back, we discussed that while everyone knows the importance of fall protection, many are not aware that it’s critical to have a plan for the prompt rescue of workers dangling from the end of their lanyard, following a fall).
9. Make improvements.  With the participation of your employees, you should regularly review your safety program, with an eye to making it better.

OSHA’s “Recommended Practices” is an easy read, 40 pages in length.  If your company is a start-up, it’s a great place to start in developing a safety program, especially if you don’t have a huge budget to have professionals provide you with a pre-packaged one.

Even if you’re running a long-established company, “Recommended Practices” will likely highlight one or more areas in which your safety efforts  could be better.  As such (and because it’s succinct, easily accessible, and free) it’s well deserving of a download.

Every year, thousands of construction workers (not just operators, but others, including spotters, other trades, and passers-by) are injured, and more than 100 are killed, as a consequence of incidents involving vehicle and heavy equipment operations on jobsites.

Given the complexity, the fluidity, and the multiple levels of authority on the typical jobsite, and that injuries resulting from accidents involving heavy equipment and vehicles are seldom minor, few subjects are more deserving of serious attention on the part of your safety team, and persistence in training your employees.

The subject is too broad for full coverage here, but I will try to touch upon some of the most important issues.

A fundamental requirement is that your machines must all be properly equipped.  All vehicles must have a service brake system, an emergency brake system, and a parking brake system.  They must have properly-secured, operable seat belts, working headlights, tail lights and brake lights, an audible horn, and an intact windshield, with working windshield wipers.  Equipment should have roll-over protection, and protection from falling debris hazards, as needed (e.g., cab shields on dump trucks).

Another thing you must do is to ensure that all heavy equipment and vehicles owned or leased by your company are properly and regularly inspected by a “competent person” — that is, by someone trained in what OSHA requires, and having, also, familiarity with the equipment to be inspected, and the skill to maintain it (or at least to know when it must be referred to a qualified mechanic).

Very generally, with most kinds of equipment, a basic check is required to be performed daily, before the equipment is put into use, a more comprehensive inspection performed monthly, and a very thorough inspection (usually involving at least some disassembly) on an annual basis.

OSHA guidelines are uneven in terms of providing detailed guidance such as checklists regarding what must be looked at, and how often, on various kinds of equipment.  Where, for example, a crane or derrick has undergone modifications or additions affecting its safe operation (generally, involving a safety device or operational aid, critical part of a control system, power plant, braking system, load-sustaining structural component, load hook, or in-use operating mechanism) there is a standard (29 CFR 1926.1412) with detailed instructions regarding how the crane or derrick must be inspected.

A middling level of guidance is given regarding off-highway motor vehicles.  These are to be inspected at the start of each shift, all essential parts and equipment to be checked for obvious damage, and to make sure they are in good operating condition.  Check the trailer brake connections, emergency stopping system, and hand brake components of the service brakes.  Also, check the tires, horn, seat belts, steering mechanism, coupling devices, operating controls, and safety devices.  If site conditions require the use of the defroster, wipers, lights, reflectors, or fire extinguishers, check those items, too.

In contrast with the foregoing, OSHA’s construction standards say very little regarding earth-moving equipment items such as loaders, scrapers, wheel tractors, crawlers, tractors, bulldozers, graders, etc., except to say that seat belts must be installed.

Where the OSHA standards are silent, or provide only minimal guidance, the first place to look is inspection and maintenance recommendations provided by the manufacturer.  While it’s best to have and follow documentation for the exact make and model of the equipment in question, at times the same may not be available.  Regrettably, manuals seldom set forth complete checklists for inspections, in which case — and especially as to kinds of equipment you use on a daily basis — you may need to consult a mechanic, and devise your own checklist, combining information from the mechanic, (possibly) an OSHA standard from a kindred type of equipment, the manufacturer’s manual, and perhaps online sources.

Just as you would not put your employees on a job without insurance, neither should you cut corners in inspecting equipment, in the interests of getting your equipment “into action” at the beginning of a shift.  Large-scale incidents, such as a crane collapse, can not only produce fatalities, and shut down an entire job for many days, but can also put your company on the front page (and in a very bad light) cause the loss of opportunities for new work, embroil you with OSHA, and/or plunge your company into litigation — or even put it out of business altogether.

Another major priority in ensuring the safe operation of heavy equipment is training.  The best practice is to employ operators experienced on the very makes and models of the equipment you are using.  OSHA training requirements must be satisfied, but retaining supervisory personnel who are both conscientious and well-trained in OSHA requirements, and best safety practices, is paramount.

If you want to keep injuries and OSHA citations to a minimum, it’s critical that leadership come “from the top.”  Only if top management makes it clear that safety is no less important than production, and supervisors know and enforce the safety rules, are you likely to seldom see your workforce (which probably consists, in large part, of younger, risk-taking males) 12 stories up but not tied off, or descending into unshored trenches.  OSHA courses and other classroom instruction are important, but even more important is keeping your best (by which I mean “best-trained, and most safety-conscious”) field supervisors for the long term.  It’s crucial, too, to remind your supervisors again and again that safety is a top priority.

Before allowing construction equipment or vehicles onto an access roadway or grade, ensure that the roadway or grade is constructed and maintained to safely accommodate them.  When driving machines onto, or off of, a trailer, special precautions are required.  Especially, make sure that the trailer is parked on level ground — or, if no level surface is available, that the trailer is parked parallel to the slope, and the vehicle on the trailer securely blocked against movement, until you are ready to unload it.  Also, you should double-check to make sure that all safety features are in place, and in working condition.  Since most equipment trailering accidents are the result of human error, it is critical, also, to have a spotter.

An additional priority is traffic control in and around the work area.  You should have a site plan that provides traffic flow details.  The Manual on Uniform Traffic Control Devices is a prime source for model plans.  Flaggers, traffic cones and/or highway channeling devices should be deployed, to divert traffic away from where employees are working.  Work zones should be well-lit, but be careful to control glare, to avoid blinding passing motorists.

Operators and others working on or in proximity to vehicles and heavy equipment should have appropriate personal protective equipment, to include (at minimum) hard hats, eye protection, gloves appropriate to the job hazards anticipated, ANSI-approved footwear, and respiratory protection, if necessary.

PPE should also include enhanced-visibility apparel and headwear.  ANSI/ISEA 107-2004 describes four classes of apparel and headwear, providing varying levels of enhanced visibility.  You should perform a hazard analysis to determine which class is required (which may, naturally, vary according as to changing conditions on the site, whether work is being done at night or under weather conditions that impair visibility, etc.)

Most accidents involving vehicles and heavy equipment are preventable, and it’s disturbing how many of the operators involved are well-trained, and highly experienced.  Therefore, in your toolbox talks and other safety training, it’s hard to go wrong in returning to these topics again and again.

New York State’s notorious “Scaffold Law,” Labor Law § 240(1), provides:

1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

The term “Scaffold Law” is something of a misnomer, as the risks that the statute is intended to reduce, or redress, are not limited to defective scaffolds, or accidents in which workers are injured while working on or about scaffolding.

There is a perennial struggle pitting insurance companies and employers against unions, safety advocates and the plaintiffs’ personal injury bar, over whether the “Scaffold Law” should be kept, repealed, or substantially amended.

It is widely believed, but not quite true, that the “Scaffold Law” imposes strict liability on the owner and the contractor, in every case in which a person sustains personal injuries in any “gravity-related” occurrence, defined as a fall from any elevated surface to a lower level, or an injury resulting from the fall of an object from a higher level.

Few people actually believe, to be sure, that an employer or real property owner should be wholly exempt from liability, where an employee is injured in a fall, or other gravity-related occurrence.  Rather, indignation over the Scaffold Law is primarily based on the statute’s uniquely taking the injured party’s own fault out of the damages equation.

A little historical context:  at common law, an injured plaintiff, whose own “contributory negligence” was found to have been even 1% the cause of his injuries, was barred from recovering any damages whatsoever.

Between 1972 and 1975, New York abolished “contributory negligence” as a total bar to recovery, and went to a “pure comparative fault” system in negligence lawsuits.  Since then, if an injured plaintiff in New York is found to be, for example, 90% to blame for the occurrence in which he was injured, he can still recover 10% of the resulting injuries, as found by the jury, against a defendant found to have been responsible to that extent.

As of 2015, New York is one of 13 states with “pure comparative fault,” while five jurisdictions retain the older rule that any “comparative negligence” on the plaintiff’s part will bar recovering damages altogether.  All other U.S. jurisdictions employ a hybrid system, in which the plaintiff’s recovery will be reduced, based upon his comparative fault, up to 50% or 51%, but eliminated entirely, if found to exceed the “cap.”  (New Jersey and Connecticut use a “cap” figure of 51%).

The reason that the Scaffold Law stirs such indignation on the part of insurance companies and employers is that, with exceptions to be discussed below, construction accidents involving the effects of gravity, by statute, do not take the injured worker’s comparative fault into account at all.  Thus, a worker, whose $1 million in injuries are at least largely attributable (for example) to his having consumed two six-packs of beer in the parking lot upon arriving at the jobsite, might have his damage award reduced by a sizeable fraction in any other context.  If, however, he was clever enough to get hurt while working on a construction job, he’ll probably still get his entire $1 million.

Another big negative about the Scaffold Law (from an owner’s or contractor’s viewpoint) is that, often, the injured plaintiff will be able to win a motion for summary judgment as to liability, leaving only damages to be tried, and placing the defendant at a severe disadvantage in settlement negotiations.

Nevertheless, as expansive as liability  under the Scaffold Law is, contrary to popular belief (shared, alas, even by some lawyers) it does not go quite so far as to impose “strict liability” in every case in which a construction worker falls from an elevated surface, or is injured as the result of an object falling from a height.

One major proviso related to potential liability for a gravity-related injury is that it is not enough that the plaintiff have suffered an injury related, somehow, to the operation of the force of gravity.  As the Appellate Division stated in the recent case of Kosinski v. Brendan Moral Custom Carpentry, in order to be liable under the Scaffold Law, the owner or contractor must have breached the statutory duty under Labor Law § 240(1) to provide the worker with adequate safety devices, and this breach must have proximately caused the worker’s injuries.  These prerequisites cannot exist, if adequate safety devices are available at the job site, but the worker either does not use them, or misuses them.

In effect, the foremost exception to the presumption of absolute liability is where the plaintiff’s own negligence reaches 100% of the culpable conduct causing the accident.  Even though the plaintiff’s “comparative fault” is not supposed to be considered, “proximate causation” (that the defendant’s acts or omissions have been the cause, or a cause, of the injury) is a necessary element in any negligence action.

Thus, where the plaintiff’s conduct is the sole proximate cause of the occurrence, the defendant cannot be liable.  This is because while, on the one hand, negligence on the plaintiff’s part cannot have been the sole proximate cause of his injury, if caused in part by the defendant’s failure to provide adequate safety devices, conversely — according to the case law — a statutory violation cannot co-exist with negligence by the plaintiff so pronounced that it must be said to be the sole proximate cause of his injury.

Examples illustrating the “sole proximate cause” doctrine, and what it means in practical terms, appear in Gambino v.  City of New York.  Surveying the case law (for the purpose of developing a reasoned basis to decide the case before it) the Gambino court summarized the following fact scenarios, as earlier decisions had found to justify the conclusion that the plaintiff’s conduct had been the sole proximate cause of his injuries:

• Plaintiff, rather than retrieving a ladder, used an inverted bucket to ascend to a motor room, and was injured when he descended from the motor room by jumping.
• The plaintiff was injured, when he ignored a direction not to drive a forklift into an area where holes had been made in the floor, causing the lift to tip over.
• Plaintiff fell into an elevator shaft, after standing on a folding chair, while attempting to hoist himself into an elevator car stuck between floors.
• The plaintiff was injured in a fall from a ladder, where he stood on cap of a 6’ ladder, rather than retrieving an available 8’ ladder.
• The plaintiff was injured, after failing to heed instructions to use an available safety line.

Since every lawsuit is decided based on its own facts, the cases are not entirely consistent.  You can find decisions in which the plaintiff’s negligence seems more pronounced than in those just summarized, but was found by the Court to present a jury question as to whether it had been the “sole proximate cause.”  Generally, however, the determinative factor is recklessness or intent.

On its face, finally, the Scaffold Law exempts from liability the owners of single-family and two-family houses, so long as the owner does not direct or control the work being performed (and the work performed is directly related to the residential use of the home).

In the Central Florida case introduced in last months’ installment, the ALJ agreed with the Secretary that the CAT that went into the retention pond, drowning the operator, was an earth-moving vehicle, and the berm was an access roadway.  Thus, it was found, the cited standard — which forbids construction equipment or vehicles on “access roadways,” unless the latter are constructed and maintained to safely accommodate them — applied.    The ALJ also agreed with the Secretary that the berm, built primarily to hold water in the retention pond, was not constructed or maintained to safely handle vehicular traffic.  Employee exposure was established by two undisputed facts:  that the CAT had been operated on the berm, and that its operator had drowned, when the CAT went into the retention pond.

The ALJ rejected substantially all of the expert testimony by the employer’s expert, finding that his opinion was entitled to little weight, even to the extent it was unrebutted, as it was not based on professional studies, or personal experience with the cited standard.

In finding that Central Florida had failed to comply with the standard, the ALJ stressed the employer’s acknowledgement that it selected the large-model CAT to reduce the time necessary to complete the job.  The ALJ also observed that even a cursory inspection ought to have disclosed that the berm was too narrow for safe operation, and that the proximity of the water abutting the berm risked negatively impacting its stability.

The likelihood that the repeated use of the CAT atop the berm would lead to calamity was, the ALJ concluded, foreseeable to any prudent management official who might bother to inspect it.  Even with an experienced operator, a large dump truck is difficult to control and drive in a straight line.  The dangers of operating the CAT, within a foot or two from the edge of a nine-foot drop, ought to have been obvious. Whether the accident occurred because the CAT was too heavy for the berm, or the berm was too narrow for safe transit, the ALJ concluded, clearly the berm was not constructed or maintained to allow the CAT to operate safely.  Hence, the standard was found to have been violated.

According to the ALJ, proof of the final element of the violation (employee knowledge) required only actual or constructive knowledge of the extant conditions, not necessarily that the same constituted a violation.  “Constructive knowledge” includes what would be disclosed by “reasonable diligence.”  The latter requires the employer to inspect the work area, anticipate hazards, and take measures to prevent violations or accidents from occurring.

The ALJ concluded that, in all likelihood, the employer had had actual knowledge of the hazardous conditions (which he described as “open and obvious,” a drowning hazard being “in plain view”).  At minimum, the employer had constructive knowledge, having disregarded “red flags,” including cautionary material in the manual for the CAT, and had generally failed to collect information sufficient to make an informed judgment concerning the safety of using the CAT 725 on the berm.

The ALJ rejected a host of defenses asserted by the employer, including one that the employer’s acts or omissions assertedly were not the proximate cause of the operator’s drowning.  Not only was that “defense” unfounded based on the evidence, but, as a matter of law, the Secretary is not required to prove the cause of an accident, the OSH Act’s mandate being to prevent accidents, not redress them.  The citation was affirmed, and the recommended penalty approved, accordingly.

On discretionary review granted at the employer’s request, the Commission upheld the ALJ’s decision, but distinguished its reasons from those stated by the ALJ.

First, the Commission found, the Secretary and the ALJ had incorrectly framed the employer’s “vagueness” argument.  The Secretary had argued, and the ALJ had found, that the evidence had shown that a reasonably prudent employer would have recognized that the use of the CAT on the berm was hazardous (and that the hazard was obvious).

Clarifying the legal standard, the Commission pointed out that, with relatively few exceptions (those in which standards are expressly operative only when a hazard has been found to exist, e.g., where PPE is mandated “wherever necessary by reason of hazards”) the Secretary does not need to provide the existence of a hazard, but only the existence of a proscribed condition, each time a standard is enforced.

  As the Commission observed, the cited standard, like most, regulates a condition, without including the existence of a hazard as an element.  It is a so-called “performance standard,” identifying an objective (construction and maintenance, making safe the movement of equipment and vehicles operated on an access road) but not the means for accomplishing it.

Since the Secretary is required to consider the need for a safety or health standard before propagating it, it is rightly presumed that if a condition prohibited under a standard is found to exist, by definition a hazard must have existed.  Beyond proving the existence of a condition prohibited by the standard cited, the Secretary is not required to present further proof of a hazard in any but the exceptional case, in which the existence of a hazard is a stated element of the standard.

Also, the Commission found, the standard cited in the Central Florida case forbade the use of the CAT atop the berm “. . . unless the access roadway or grade is constructed and maintained to accommodate safely . . . “ the movement of the vehicles.  Thus stated, the condition placed the burden of proof on the employer to prove that the condition was satisfied, entitling it to the benefit of the exception. In other words, once the Secretary proved that the CAT was used on an “access roadway,” it became the employer’s obligation to prove that the berm was constructed and maintained to safely accommodate the CAT’s movement.

Thus, correctly stated, the “vagueness” inquiry was not whether the employer knew there was a hazard, but whether it knew, or had fair notice of, what was required of it under the standard.

The Commission rejected the employer’s argument that the Secretary bore the burden to prove the employer’s actions unreasonable, based on evidence of industry custom and practice.  It distinguished the case before it, involving a standard that presumed the existence of a hazard, with precedents requiring such evidence in cases involving generally-worded standards that do not presume the existence of a hazard.  Moreover, the Commission noted, precedents from the Court of Appeals for the Eleventh Circuit (which includes Florida) hold that industry custom and practice evidence is irrelevant, when the employer has actual knowledge of its compliance obligations.  It went on to discuss, in some detail, how the evidence before the ALJ had shown that the employer had had such knowledge.

In sum, the Commission found that the employer had failed to obtain information sufficient to determine that the berm could safely accommodate the CAT; that the employer had actual knowledge of the conditions at the site —specifically (i) the insufficient clearance between the CAT and the edges of the berm; and (ii) the berm’s load-bearing capacity, relative to the CAT’s weight.  It was not necessary, the Commission reiterated, for the Secretary to prove that the employer had known the conditions to constitute a “hazard.”

The citation, the characterization of the violation as “Serious,” and the monetary penalty imposed, were therefore affirmed by the Commission, following its review.

This month’s OSHA case involves a citation contest, in which the employer had deployed a large dump truck to haul loads of fill across a narrow berm that abutted a retention pond.  Tragically, the edge of the berm gave way, the dump truck went into the pond, and the operator drowned.

The employer was cited under a seldom-seen OSHA standard forbidding construction equipment or vehicles on “access roadways,” unless the same are constructed and maintained to safely accommodate them.

I’m going to go ahead and tell you the ending:  the citation and penalty were affirmed, first by an Administrative Law Judge, and afterward, upon discretionary review, by the OSH Review Commission.

However, I think the case (Secretary v. Central Florida Equipment Rentals) is instructive on several different levels.  Most obviously, even experienced sitework contractors may be unaware that there’s an OSHA standard that requires you to ascertain the capacity and the safety of access roads, before putting equipment and vehicles on them.

In addition, although both the ALJ and the Commission upheld the citation, they did so for very different reasons, and studying the Commission’s clarification as to how standards are enforced may help you refine your safety program, to reduce the risk of citations.

One “takeaway” from this month’s case  is that, under most OSHA standards, the Secretary needs to prove that conditions proscribed by the standards cited existed, but not that they constituted a hazard. Another primary takeaway is that, if a standard states a prohibition, “unless the employer” shall have taken some specified action, or made some specified determination, the burden falls on the employer to prove that the condition was satisfied.

Finally, the last “takeaway” is that you must not casually operate a dump truck, weighing upwards of 75 tons atop a narrow berm of undetermined stability, with only a couple of feet of clearance on each side, abutting a retention pond more than 20 feet deep.

In this month’s installment, we’ll give you the facts of the case, and highlights of the trial evidence.  Next month, we’ll discuss the applicable law, as viewed by the ALJ and, later, somewhat differently, by the Commission.

In Central Florida, the employer had a $2.3 million subcontract to raise by 6" several berms situated next to retention ponds at a wastewater treatment plant in Florida.  The berms ranged from about 7.4 feet to 9.6 feet in height.

The employer’s foreman and superintendent selected a CAT 725 six-wheel articulating dump truck to drive along the top of the berm, and dump the fill.  The CAT weighed about 25 tons when empty, and about 51 tons fully loaded.  The plan was that the CAT would deposit a load of fill atop the berm, and then circle around the retention pond to get the next load.  While the CAT was off the berm, a bulldozer would drive over it to spread the fill, followed by a roller, which would compact the soil.

Neither the owner nor the general contractor made any representations to the subcontractor regarding the condition of the berms, the composition of the soil, or the ability of the berm to support the weight of the CAT.  Under its subcontract, the employer was responsible to investigate the site, and all field conditions and dimensions; to take all reasonable safety precautions; and to comply with the OSH Act.  However, Central Florida made no inquiries concerning the load-bearing capacity of the berm, or whether it was capable of supporting the weight of the CAT.

Central Florida’s foreman testified that the employer did not test or evaluate the compactness of the material constituting the berm, and did not know the weight of the loaded CAT, or whether the berm was capable of upholding it.  Essentially, the employer just assumed that the berm was capable of supporting the fully-loaded CAT, based on a visual inspection, and prior experience working in the general vicinity of the berm.

One afternoon, before the County even knew that the subcontractor had started work, the loaded CAT was being operated on the berm, with as little as 18” clearance on either side.  The edge of the berm gave way, the CAT fell into at least 20’ of water in the retention pond, and the operator drowned.  Investigators — there were no eyewitnesses — concluded that the berm, constructed of rock and fill, had given way under the weight of the CAT.  Police pulled the CAT from the water beneath a damaged section of the berm, which displayed tire marks in the dirt road leading to the collapsed area.

Following OSHA’s investigation, the subcontractor was cited for a “Serious” violation of 29 C.F.R. § 1926.602(a)(3)(i), which provides:

No employer shall move or cause to be moved construction equipment or vehicles upon any access roadway or grade unless the access roadway or grade is constructed and maintained to accommodate safely the movement   of the equipment and vehicles involved.

Central Florida contested the citation and, at trial, presented expert witness testimony by a former OSHA Area Director.  This expert opined that the standard in question was unconstitutionally vague, and more germane to road construction and large excavations.  He also faulted OSHA for not having obtained the assistance of an engineer to analyze the accident, determine the weight of the CAT and its load, test the berm, and do sampling.  He also expressed the view that the employer’s visual inspection was sufficient, the employer’s duty being to do only what it deemed prudent, within its industry practice.

The employer’s superintendent downplayed the importance of the tight clearance on either side of the CAT, as there were no turns on the roadway atop the berm, and the vehicle had only to travel 250 feet straight across the berm.  He also claimed to have knowledge that machines, including a back hoe, crossing the berm prior to the CAT 725, far exceeded the weight of the latter.

OSHA’s safety engineer, testifying for the Secretary on rebuttal, stressed that the berm, constructed of pre-disturbed soil, would not be as stable as it would have been in a natural state, and that the probability of a mishap was increased by the concentration of the CAT’s load beneath its tires.  Using the same principles of soil mechanics as prohibit a static load within two feet of the wall of an excavation, OSHA’s engineer opined that the use of the CAT, with its wheels just 18” from the edge of the berm, was unsafe.  The employer, in the view of OSHA’s expert, ought to have consulted the designer of the berm, or  used a smaller vehicle.  He could also have used a different method, as demonstrated by the fact that the completing contractor  had dumped the fill at the ends of the berm, and used a small bulldozer to push it out onto the berm.

OSHA’S engineer also testified that the cited standard’s applicability was proven by the operation of vehicles on the berm, making it an “access road.”  He conceded that OSHA had not performed soil testing as part of its investigation, but argued that the police report’s conclusion that the CAT had gone into the pond due to the collapse of a portion of the berm was persuasive, and that the undisputed fact of the collapse established that the employer had done too little to ensure that it was safe to operate the loaded CAT on top of the narrow berm.  He rejected the view that OSHA had been remiss in not doing its own soil testing; that information, he stated, ought to have been known to the employer.

Ultimately, the citation and associated monetary penalty were upheld, but the reasoning of the ALJ, and that of the OSH Review Commission, were dissimilar in several key respects.  In next month’s installment, we will look at the different paths by which the ALJ and the Commission arrived at the same result.