Author: Thomas H. Welby

The first few minutes can be critical in cases of serious injuries involving stopped breathing, cardiac arrest, or uncontrolled bleeding. While large-scale, well-planned construction projects will have made provisions to comply with OSHA standards that require that prompt first aid be available, if (for example) yours is a follow-on trade, and you work on a lot of smaller, non-union projects, it would be easy to overlook that, quite possibly, one or more of your current jobsites is not in compliance with this potentially life-or-death requirement.

While of course the lives and the safety of your employees ought to be your paramount concern, yes, even if you’re a follow-on trade, and the general contractor has primary responsibility to ensure compliance with the first aid requirements, if your workers happen to be onsite when the OSHA inspector happens by, you will probably be cited based on OSHA’s multi-employer policy, and be liable for violations and penalties as an “exposing employer.”

The basic first aid requirements can be found in 29 C.F.R. Sec. 1926.50. The employer is required to “insure the availability of medical personnel for advice and consultation on matters of occupational health,” and to make provisions, “prior to commencement of the project, for prompt medical attention in case of serious injury.”

In the absence of an infirmary, clinic, hospital, or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid.

While the standard does not define the key term, “reasonably accessible in terms of time and distance to the worksite,” OSHA interprets that as requiring that emergency medical care be available no more than 3-4 minutes’ travel time distant from the workplace, at least in workplaces where falls, suffocation, electrocution, or amputation are possible. (Longer response times are permissible in less hazardous workplaces, such as offices).

The better practice is, if you are a subcontractor sending employees to work on a site in an urban area, have your office make its own inquiry as to whether there is a proper facility (such as an emergency room or infirmary) within 3-4 minutes’ driving time from the job site. While, obviously, every GC running a job should have the location and directions to the nearest emergency care at its fingertips, even if you’re not the GC, make sure your foreman has that information.

The standard requires that a communication system for contacting an ambulance service be provided, and (in areas not served by “911”) that the telephone numbers for the ambulance service, hospitals, or physicians be conspicuously posted.

The more rural or remote the job site is, unless (obviously) the site happens to be near to a known emergency care facility, the more critical it will be that someone with the proper credentials, and truly competent to render first aid, be on the site.

The surest way to guarantee that on-site first aid will be available, should your employee be injured, is to hire employees who can document American Red Cross or equivalent first-aid training, or to make an investment in providing such training to some of your more trusted employees.

As for the first aid kit, while there is no one-size-fits-all prescription for what must be included, an appendix to the standard references ANSI Standard Z308.1-1978, “Minimum Requirements for Industrial Unit-Type First Aid Kits.” OSHA recommends, also, that your local Fire/Rescue Department, medical professional or emergency room be consulted, concerning additional items to include, and that employers periodically assess the specific needs of their worksite.

Also, if it’s anticipated that employees using first-aid supplies will be exposed to blood or other potentially infectious materials, suitable PPE (gloves, gowns, face shields, masks and eye protection) should be provided, and kept together with the first aid kit.

Note also that the first aid kit must be in a weatherproof container, with individual sealed packages for each type of item, and must be checked by the employer before being sent out on each job, and at least weekly during each job, to ensure that items expended are replaced. A form enclosed in a plastic sheet should be kept in the kit, for the recording of each date and the signature of the person performing each check of the kit as required.

Also included in the first aid standard is the requirement for facilities for quick drenching or flushing of the eyes and body, where these may be exposed to corrosive materials.

If you’re a general contractor, since, under the standard, provisions for prompt medical attention are to be made “prior to commencement of the project,” clearly you have the responsibility to take on a leading role.

As GC, you certainly ought to identify the nearest emergency room or similar facility, ensure that the phone numbers are posted, and provide and check regularly the required first-aid kit (and, if applicable, the eye/body washing facility).

At the outset of the job, and again on the arrival of each new subcontractor, efforts as necessary should be made to ensure that every trade knows where the emergency room (infirmary, clinic, or physician) is located, and how to make contact; who the qualified first-aid providers on-site are, and where the first aid kit is maintained. As always, it’s not only good to do these things, but you are wise to document having done them as well. Your safety director or other senior employee should prepare a memo including such information, have each subcontractor countersign the memo to acknowledge its receipt, and retain in a safety/OSHA file for the project the countersigned copy.

These particular OSHA standards arguably should not be necessary. A basic understanding of construction hazards, minimal concern for the lives and the safety of the men and women who work at construction sites, and a modest dose of common sense should suffice to make the required practices a matter of course.

It is not unheard of, unfortunately, that serious accidents occur, followed by the discovery that there is no trained first aid giver at hand, or that no one knows where the first aid kit is stored. Precious time is sometimes lost, because no one had the forethought to identify in advance the nearest hospital or other suitable facility.

It’s counter-productive, obviously, to observe the most highly technical construction safety standards, while neglecting the basics. OSHA’s first aid standards are among the easiest to comply with, as well as the most important. It’s well worth double-checking, to ensure that your company is in compliance.

A recent Administrative Law Judge decision underscores, again, two persistent problems for employers. One is the requirement that OSHA training be offered in languages understood by employees. The other is a “tilt” in OSHA proceedings in favor of witnesses testifying for the Secretary, and against witnesses for the employer.

In Secretary v. Revoli Construction Co., Inc., Revoli had a crew excavating a street in a Boston suburb. Before undertaking this work, Revoli had contacted a “DigSafe” call center, leading to each of the relevant utility companies coming to the site to mark the location of its lines. These included gas lines owned by NStar Gas. In Massaschusetts, as elsewhere, the subsurface infrastructure is poorly-documented, and thus the utilities’ markings are not guaranteed to be accurate or complete.

While digging in an area away from the utility markings, Jose Raboso, a Portuguese-speaking backhoe operator, encountered an unmarked wire. Jose asked a laborer assisting him, his brother Pedro, to dig by hand to determine what type of utility, if any, was associated with the wire.

Pedro later testified that, on inspection, the white wire appeared to have been cleanly cut, as if with a pair of pliers. With his shovel, Pedro dug around sand he found in the hole, but although he saw yellow caution tape, he denied seeing any pipe.

Robert Driggs, a local police officer and also a licensed equipment operator, was directing traffic about 15 feet from where the Rabosos were working. After Pedro exited the hole, Jose dug out another bucket load, and came up with clean sand and yellow caution tape. Driggs had walked about 10 feet further away, when he heard a gas line purging. He shut down the intersection, called his dispatcher to send the fire department and NStar Gas, and saw to the evacuation of a school nearby. No one was injured.

OSHA cited Revoli for (1) failing to instruct its employees in the recognition and avoidance of unsafe conditions; and (2) failing to determine the location of the underground utilities by safe and acceptable means (both “Serious” violations).

The OSHA Compliance Officer testified at trial that Jose told him that he had recognized the line as a gas line; that Pedro, after digging around it, had told him it was an abandoned line that could safely be severed, and that he himself saw the pipe before he broke it.

The C.O. testified further that prescribed procedure requires, whenever an excavator finds a line and is unsure whether it is live, he is to stop work and notify the foreman, who will then call the utility. Employees must be trained that markings are only approximations, and that one must never presume that a utility line is dead. Both sides’ witnesses agreed that the severed gas line was between 10 and 18 feet distant from the utility company markings.

The ALJ may have been too quick to disbelieve the Rabosos’ testimony. Jose had 14 years’ experience as a licensed backhoe operator, had never before broken a pipe, and had never been disciplined by Revoli, or cited, for safety violations. He denied having seen the gas line, or having told the C.O. that he had seen it, and averred it would have been be “crazy” to knowingly break a pipe on his own authority.

Jose claimed to have seen only a white wire, which he associated with a valve installed earlier in that location. Although he and his brother were working on the left side of the roadway, and the gas line markings were on the right side, he denied having relied on the markings. His experience, he said, was that unmarked utilities are present about 75% of the time.

Both Raboso brothers and a Revoli supervisor testified about a fairly extensive safety program. Ultimately, the ALJ found that not enough detail had been provided, and stressed that it was proof of insufficiency that roughly 25-30% of Revoli’s Portuguese-speaking employees were not sufficiently proficient in English to take part in safety meetings without interpretation, of unknown reliability, by bilingual fellow employees.

Revoli’s safety program, as described by its witnesses, was less than exemplary. Nevertheless, I thought its sufficiency to be, at worst, a close question, which perhaps should have gone Revoli’s way. The Secretary has the burden of proof, and Revoli – having operated from 1986 until 2009 without ever previously severing a utility line – must have been doing something right in its training.

However, the ALJ agreed with the Secretary, and characterized the employer’s moderately convincing evidence of an earnest safety program as “pallid.” He stressed the employees’ lack of proficiency in English, and the lack of oral and written safety training in Portuguese, as making “compelling” his finding of a failure-to-train OSHA violation.

Unfortunately, most safety training of the construction rank-and-file, OSHA’s courses included, is not very effective, even when workers are instructed in their first languages. Much material is technically too sophisticated, and infected with acronyms, buzzwords, and jargon. While Spanish is so widespread that there exist construction safety materials in that language, a question persists as to what extent it’s realistic (or equitable) to impose upon private employers a duty to provide extensive training in multiple languages. While roughly 9 of 10 U.S. residents use either English or Spanish at home, there are at least 20 languages having 200,000 or more first speakers, and a dizzying total of 337 languages in all. Translation services in most languages other than Western European languages, Mandarin, and a handful of others are lacking, or expensive, and decline in accuracy in proportion to the technical sophistication of the source language material. Investing in training materials in most languages spoken across the country is of doubtful value, not only because the small numbers of speakers, but because many in the target audience have limited reading ability in their first languages. Indeed, languages spoken at home in some immigrant communities are scarcely used as written mediums in their native countries.

As for the citation item alleging a failure to determine the gas line location, while the ALJ conceded that the Secretary had not overcome Revoli’s evidence that the gas line’s location was mismarked, he found that Revoli knew or should have known of the violation anyway. Here again, the employers’ witnesses were disbelieved, and that of the police officer and OSHA compliance officer found wholly credible. The ALJ “bootstrapped” a finding that the police officer had testified accurately concerning what he allegedly saw in the trench, from a distance of 15-20 feet, by referring to photographs taken after the line had been severed that did not necessarily represent what Pedro had seen, before Jose severed the pipe upon removing the third bucketful. Indeed, the ALJ again stressed the alleged lack of training (and in Portuguese) in finding that the Rabosos knew the gas line was there, and perversely elected to sever it.

The desirability of producing useful and effective training materials in the two dozen or so languages having numbers of speakers justifying the effort might profitably be addressed by some coalition of government, construction, labor, immigrants’ rights, and ethnic advocacy groups. Requiring individual employers to “reinvent the wheel,” by devising training materials in moderately widespread languages (such as Portuguese) is uneconomical. Moreover, more “bang for the buck” would probably be obtained by assessing and improving existing materials in English and Spanish – and OSHA should abandon, as oppressive and unachievable, the principle that employers are obligated to offer thorough training in any and every language.

In last month’s article about how to decide whether to contest an OSHA citation, I mentioned that, although OSHA procedures place the employer at a disadvantage as to the proof of facts, the Administrative Law Judges are generally knowledgeable and conscientious on issues of law.

A recent example is Secretary v. Ben Hur Construction Co., involving the death of an apprentice crane operator during disassembly of a 100-ton lattice boom crawler crane.

Ben Hur, a century-year old steel and precast erector and steel fabricating outfit with three regional offices in the Midwest, had several subcontracts to set steel on various phases of a corporate headquarters construction job in Missouri. Having completed the setting of steel for one of the buildings under construction, a 6-man crew undertook to disassemble the crane, a Linkbelt 218. The crew consisted of crane operator Pete Bell, operator apprentice Steven Lillicrap, an equipment manager, and three ironworkers.

After removing the two 11-ton counterweights, the crew needed to pull the pins on the crane’s gantry, so that it could be lowered. Because the crane was situated in a tight space, Bell – a highly-skilled union operator – needed to move the crane forward, before lowering the gantry. Bell told Lillicrap, who had climbed about 9 feet above the ground to hook up the counterweights prior to their removal, to stay on the work platform or landing on the back of the crane, while Bell moved it forward. Bell twice instructed Lillicrap that he would move the crane forward and raise the butt section, whereupon Lillicrap would pull four pins on the gantry, to permit it to be lowered. When Bell gave Lillicrap his instructions the second time, the apprentice was standing on the work platform at the back of the crane. Since the platform was almost 7′ above the ground, Lillicrap was required to be tied off. Before putting the crane in motion, Bell was able to see Lillicrap from the chest up. He could see that Lillicrap was wearing his harness, but could not tell if, or to what, Lillicrap was tied off.

The platform on which Lillicrap was positioned was next to the boom hoist drum. The butt section of the boom had been lifted a few feet above the ground, to ensure that the boom did not hit the ground as the crane moved forward. The boom had to be raised also because the gantry and boom had to be “scissored.” This means that the boom cable had to be kept tight, which requires the operator to lift the butt section to get the hydraulic cylinders on the gantry to overhaul (as, otherwise, the cylinders will stall).

Bell put the crane in forward motion, boomed up, and heard an ironworker yell, “Stop!” Bell went back and saw that Lillicrap, who had attached his lanyard to the live end of the boom hoist drum cable, had been pulled down next to the boom hoist drum when Bell boomed up, and the drum turned. Lillicrap, whose family had worked with cranes and who was seen by his employer as an uncommonly talented apprentice, died from his injuries.

OSHA was notified as required by law and, following their inspection, issued two citations against Ben Hur. One alleged a violation of ¬ß 1926.550(a)(1), which requires compliance with the manufacturer’s specifications and limitations applicable to the operation of cranes. The other alleged that Ben Hur had failed to instruct Lillicrap in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment – specifically, in neglecting to train him to attach his lanyard to a safe anchor point. These citations were undoubt-edly seen by OSHA as a “high profile” matter, both as they involved a fatality, and as the fatality resulted from the operation of a crane. Contesting the citations, Ben Hur admitted jurisdiction, coverage, the applicability of the cited standards, employee exposure, and employer knowledge. Its defense was simply that it denied having violated the standards cited.

The first item, the alleged failure to operate the crane within the manufacturer’s specifications and limitations, focused on Ben Hur’s alleged failure to observe a warning in the manufacturer’s operation manual to stay clear of all moving machinery during the raising or lowering of the gantry, and further advising that a signalman be positioned to observe all areas of motion and warn the operator of danger.

Ben Hur argued that the warning in the operation manual was not a “specification.” The latter term is not defined in the OSH Act, but per its dictionary definition, the ALJ found it to connote steps or instructions that are “required, mandatory, obligatory or compulsory.” Failure to comply with a “specification” will lead to penalties under the Act, but failure to follow a mere “recommendation” (that is, a “suggestion, proposal, or option to be considered”) will not.

The ALJ, reviewing the manual’s section entitled “Disassembly of the Crane,” noted that the manual itself stated that “the instructions in this Section are the recommended, safe procedures,” but that, due to site conditions, the availability of additional equipment, and previous disassembly experience, “other methods may be used,” provided that they are “proven, safe methods.” Accordingly, the ALJ found the instructions in the operating manual to be recommendations, not mandatory specifications.

As for the alleged necessity of using a signalman while lowering the gantry, the ALJ rightly rejected this allegation both because this, too, was a recommendation and not a specification; and secondly because, as the citation itself stated, Bell was booming up, not raising or lowering the gantry, when the accident occurred. Accordingly, the ALJ vacated the first citation item.

The second, failure-to-train item, was also vacated. First, the ALJ reviewed the employer’s training procedures in detail, and found them to be adequate. Second, it credited Bell’s testimony that he had specifically cautioned Lillicrap to tie off to the dead end of the crane cable, and rejected the Secretary’s argument that Bell’s instructions should not be considered, as he was not the employer’s designated safety representative.

Bell’s testimony was corroborated by a company superintendent, and the ALJ gave short shrift to the argument that an experienced, qualified operator such as Bell could not instruct Lillicrap in fall protection safety.

Ultimately, the ALJ noted, the Secretary’s argument on this item invited the Court to extrapolate from the fact that Lillicrap tied off to a live cable a conclusion that he had not been instructed not to do so. The Court declined that invitation, citing OSH Review Commission precedent that the issue is whether the employer’s safety program provided adequate guidance, not whether the accident could possibly have been averted.

While obviously the death of a rising star in a demanding trade represented a great loss to Ben Hur as well as to the apprentice’s family, the ALJ reached the correct result.

Your company has had an OSHA inspection, and the Compliance Officer has cited you for half a dozen “Serious” violations.  Should you contest the citations?

If there is even a possibility that you might wish to contest any of the citations, or the recommended penalties, or the time allowed for abatement, you must not neglect to serve a Notice of Contest on the issuing OSHA office.

The “good news” is that the Notice of Contest itself requires little in terms of required content.  It does, however, have to be in writing, and (here’s the “bad news”) it must be sent (first-class mail is fine, although certified with a return receipt is best) within fifteen “working days” of your receipt of the citation.  A letter directed to the area director at the address appearing on the citation, referencing the citation number, and stating that the Respondent contests specified citation items as to liability and as to the proposed penalties (plus, if applicable, the time allotted for abatement) does the job.

It’s generally a good idea to go ahead and send off a Notice of Contest, even if your true intention is to try to negotiate fewer than all of the citation items, and perhaps a reduction in the monetary penalties as to others, at an Informal Conference.  We are staunch advocates of the Informal Conference, but keep in mind that scheduling one does not extend the respondent’s time to serve the Notice of Contest.  If you wish not to appear unduly combative, you can add a sentence stating that while you hope to adjust and settle all matters at an Informal Conference, you are sending the Notice of Contest to preserve your rights.

The decision to pursue a contest beyond serving a Notice of Contest and an Informal Conference is subject to considerations often absent in other areas of legal practice.

A primary consideration is the cost.  The maximum penalty for a “Serious” violation is $7,000.00.  OSHA often assesses a lesser penalty, whereas you may spend tens of thousands of dollars taking a contest through trial.  Although there are sometimes countervailing considerations, as where a citation of doubtful merit, if affirmed, might disqualify your company from public work (or private work with some GCs and CMs) keep in mind what is truly at stake, based on your citation.

OSHA enjoys the services of able attorneys in the office of the Solicitor of the U.S. Department of Labor.  They are salaried federal employees, who do nothing but OSHA litigation.  If you intend to hire an attorney to contest an OSHA citation, not only will you be at the cost disadvantage of paying hourly rates to private counsel, but he or she will be “outgunned” in the sense that there are, so far as I am aware, no private attorneys who make their living doing nothing other than contesting OSHA citations.  Unless, perhaps, you chance to find an attorney who has migrated from the Solicitor’s office to employment in a private law firm, your lawyer will have to scale a “learning curve,” and will almost certainly be less familiar with both substantive and procedural aspects of OSHA contests (not to mention the judges who hear OSHA cases) than the lawyer on the other side.

A poor match, sometimes seen in the OSHA context, is a client who either views OSHA as a meddlesome agency, or is indignant that his company has been cited for violations, coupled with an attorney whose lack of OSHA savvy is accompanied by a belief that Maximum Aggressiveness is always and everywhere the only way to attract and retain clients.

OSHA practice needs a lighter touch.  This is in part because the litigation costs usually are disproportionate to the penalties, but also because the citation on your desk today is unlikely to be your last (at least if you remain in the construction business!).  Often ? indeed, usually ? the better course is to see if more doubtful items can be dropped, and/or penalties reduced, and to make adjustments in your company’s policies and practices to reduce the chances of a “repeat” violation, pay the penalties, and move on.

While certainly there are instances in which litigation is justified, dealing with OSHA requires a good measure of diplomacy.  For one thing, by and large OSHA personnel are both practical, and reasonable.  It’s always in your interest to be, and to appear to be, a safety-conscious employer, willing to frankly acknowledge missteps and eager to do better in a highly-hazardous industry.  OSHA personnel are not affronted if you point out that, technically, you did not violate the standard cited, but tossing about spurious arguments, in a “scorched earth” resistance to a few thousand dollars in penalties, is virtually always a mistake.

Some employers hold the mistaken view that OSHA proceedings are a “kangaroo court,” in which they will not receive fair treatment.  That’s not the case, but there are a couple of caveats.
Congress, when it enacted OSHA, set up the OSH Review Commission to be independent of the Department of Labor.  The ALJs, in our experience, are know¬≠ledgeable and fair.  The most favorable contests to litigate are those in which the defenses proposed are mainly on the law.  For example, perhaps you have been cited under the General Duty Clause for a hazard not covered by any specific standard.  If you can show that the hazard alleged is not one recognized in the industry, you ought to be able to get the citation (and any penalties) vacated.

 Less promising are fact-based contests, especially where your witnesses will need to engage in a “he said/she said” “swearing contest” pitted against the Compliance Officer.  Where the playing field is not level in OSHA proceedings is the result of (1) the admissibility of hearsay evidence in administrative proceedings; (2) the informant’s privilege; and (3) the expansive definition under the Federal Rules of Evidence of what constitutes an “admission” by a party.

The Compliance Officer can, for example, testify that he was told by (your) unnamed Employee X that the standard cited was routinely violated at your jobsite.  Employee X may not have actually seen a single violation, but had a conversation with Union Foreman Y, in which Foreman told Employee that such violations were an everyday occurrence.  This may actually be deemed to be an “admission” by your company, and the Secretary does not need to put the employees on the stand, and you will be unable to cross-examine them.

Also, where a critical part of the puzzle turns on witness credibility, the employer’s witness will be assumed to be biased, whereas the CO will be assumed to be a disinterested and diligent public servant.  The CO will rarely if ever be found to be untruthful, or his testimony tainted by such things as, for example, a desire to cover over defects in a sloppy investigation.

In short, while there are citations worth fighting, the expense and difficulty of winning a contest makes it imperative that you pick your fights wisely.

Since your company devotes considerable time and money to safety training and OSHA compliance, those efforts should include making and keeping records of training content, rule enforcement, and the like.

As you are probably aware, OSHA practice recognizes, in limited circumstances, the doctrine of “unavoidable employee misconduct” as a defense to a citation.  

Several of our clients have had the experience of being cited for OSHA violations, in circumstances in which they felt that the violation occurred wholly due to an experienced, knowledgeable employee forsaking ordinary common sense, and breaking a work rule of which he certainly ought to have been aware.

While it’s vexing to get cited for an obvious and common OSHA violation that has been discussed over and over in “toolbox talks” and safety meetings, unfortunately the defense of “unavoidable employee misconduct” is somewhat technical, and will save the employer an adverse finding and the associated penalty only where conditions, not easily met, are shown.

To illustrate the doctrine and its limitations, I’ll discuss Secretary v. P. Gioioso & Sons, Inc., which serves the further beneficial purpose of reminding readers of one of the deadliest, and most commonly-cited, construction-related hazards:  employees unprotected while working in trenches.

In Gioioso, an OSHA inspector passing a construction site in Boston observed employees working in a trench.  Since this compliance officer worked in a suburban OSHA office that did not have primary jurisdiction over the site, he did not immediately demand to inspect the trench, but returned later when no one from the primary office was available.

On returning to the site, Compliance Officer Henrikson saw an employee climbing out of a trench that appeared to be 6′ deep, and which had no shoring or other protection.  Seeing no other workers about, and it being around noon, CO Henrikson deduced that most of the workforce was at lunch, and so went to lunch himself.

Returning after lunch, Henrikson saw an employee exiting the east end of a second trench.  He left this trench briefly to look at two additional trenches which proved to have no one working in them.  Upon returning to the second trench, he saw one employee standing alongside it, and another in the east end of the trench digging with a shovel.  The trench was up to the top of the employee’s head.  The walls were vertical, and there was no protection in the trench.  The CO identified himself, and asked the employee to exit the trench, which he did by stepping onto an electrical duct bank near the east end.  This employee identified himself as Jos√© Ourique, and stated that he was the foreman at the site.

Gioioso’s superintendent, Joseph Zenga, arrived a few minutes later, and told the CO that he had not inspected or measured the trench before employees entered it.  Ourique told the CO that he was not the “competent person” at the site, and had not measured the trench.  He had been hand-digging in the trench, to locate the “corporation valve” to which the new water service pipe was to be connected.

CO Henrikson spoke with Gregory Perreira, an equipment operator, who had been standing alongside the trench when the CO first saw him.  Perreira said that superintendent Zenga came by the trench six to eight times a day.  Zenga, he reported, had been by the trench at lunchtime.  Ourique had been in the trench then, but Zenga had said nothing to him, or to anyone else, about trench protection.  Perreira said that Robert Bruni was the employee the CO had seen exiting the trench, and that he himself also had been in the trench, albeit at the shallow end.

The CO measured the trench as being 5’8″ deep at the deep (east) end.  A trench box was onsite, but could not have been used due to the various utility lines in the trench.  The trench could have been shored, but the CO found no shoring materials onsite.  The CO determined the soil in the trench to be gravelly “Type C” soil (the most unstable kind) that had been sloughing from the trench walls, and was particularly susceptible to cave-ins due to vibrations caused by construction and vehicles being operated in the area.

Gioioso was cited for one “Repeat” violation, for having employees in an unshored trench more than 5 feet deep; and for two “Serious” violations, for not having the trench inspected by a “competent person,” and for failure to provide a ladder or other suitable means of egress.  Gioioso contested the citations.

As always, the Secretary had the burden to prove, as to each citation item, that (1) the cited standard applied; (2) there was a failure to comply with the standard; and (3) employees had access to the violative condition.  In Gioioso, in addition to arguing that the Secretary failed at the trial to meet her burden of proof, the employer raised as a defense that any violations of the cited standards were due to “unpreventable employee misconduct.”

Gioioso’s arguments that the Secretary had not proved the violations were unconvincing.  For example, it offered speculation that possibly the trench had been dug deeper in the ten minutes between the time that the CO saw Mr. Bruni emerge, and when he saw Mr. Ourique in the trench.

The “Unavoidable Employee Misconduct” defense requires proof that the employer (1) had an established work rule; (2) communicated it; (3) took steps to discover incidents of noncompliance; and (4) enforced it with disciplinary measures.

In the Gioioso case, the defense was rejected in part because Ourique ? one of two employees who had violated the rules ? was a foreman.  Also, although visits by supervisory personnel were claimed as demonstrating steps to discover transgressions, Zenga’s appearance on the day of the inspection, at which time he saw Ourique in the trench without protection but failed to say anything, pretty much let the air out of that argument.

The ALJ made special mention of a prior case involving Gioioso, in which an appellate court had stressed the absence of documentary evidence in rejecting the UEM defense.  Without corroborative paperwork to show, e.g., unscheduled safety audits, mandatory safety checklists, actual implementation of a disciplinary policy, the contents of safety talks and attendance records, an employer cannot persuasively argue that it met the criteria necessary to establish the defense.

While reducing risk should be your safety program’s primary goal and avoiding or defending OSHA citations a secondary goal, everything you do ought to be recorded, and the records preserved.  A potential defense should not be lost due to a lack of supporting documentation.

For those of us operating small businesses, it’s not easy, as 2010 winds down, to avoid mixed emotions.  Those of us whose businesses have come through the past two, difficult years in good shape have much to be thankful for.  Yet, all of us have friends, clients and colleagues, many with exceptional talent and experience, who are struggling.  Pundits’ predictions of better times run counter to some of the economic data, as foretell unimproved, or even worsening, prospects.

If anything is certain, it’s that the road ahead is uncommonly uncertain.  In the meantime, of course, we have to steer the ship as best we can.  The theme of this series being health and safety in the construction workplace, this installment is to urge that, in setting your course, you not jettison care for the lives and the safety of your crew.

Governmental support for the goals underlying the OSH Act is looking somewhat shaky right now.  As you may know, 22 states have their own state-run OSHA programs.  (New York, Connecticut and New Jersey are all among the handful of states that allocate private-sector OSHA responsibility to the federal agencies, while administering their own state agencies for workers in the public sector).   In looking around to see how construction safety, including OSHA enforcement, is faring around the country, I am startled to see that, as many states wrestle with dire budget constraints, their OSHA programs are experiencing budget cuts, and laying off employees.  I see, also, that even in some substantial construction outfits, layoffs have reached the level of executive safety personnel.

Recalling the cartoon image of the fellow with an angel sitting on one shoulder and a demon on the other, I don’t doubt that your “shoulder demon” would be pleased if fewer OSHA employees translated into fewer inspections, and fewer citations.  Nonetheless, in your more sober moments, you’re probably  aware that safety consciousness is healthy not only for your soul, but your company’s bottom line.  Lawsuits, workers’ comp claims and lost man-hours are obvious perils, but a lack of attention to safety has additional, subtler negative impacts on your company as well.  The best workers gravitate to safer companies, and safety and production in reality go hand in hand.

While federal OSHA has not ? yet ? shown signs of fiscal distress or diminished enforcement activity, in broad terms it may well be that, in the next years, governmental attention to workplace safety and health will trend downward.  And, even if the economic optimists prove to be correct, you’re probably not counting on having money to burn over the next few years.

What, then, can you do, as a construction executive facing budget constraints, to maintain high health and safety standards within your company?  Leadership, transparency, communica¬≠tion, employee involvement, improved liaison with OSHA (and with any labor organizations representing your employees) and emphasizing the basics are all elements of an effective strategy.

 “Leadership” can mean a lot of things in this context, but one essential is that, come what may, employee safety and health must always be an agenda item.  Construction is inherently dangerous, so safety is a challenge in both good times and bad.  Generally, a company’s safety record reflects the owners’ attitude that the lives and the well-being of the rank-and-file are, or are not, important.  If your company has less work, has undergone layoffs, or has lost key safety or other supervisory personnel, you’ll be doing extra planning in any case.  You need to include an evaluation of what impact changed circumstances will have on safety, and what adjustments might be considered to ensure that any adverse impact is kept to a minimum.

By “transparency” I mean openness concerning safety issues and planning.  If you’re operating with 60% fewer employees than you had three years ago, and your safety director has been laid off, there’s no use pretending that you’re not facing challenges.  These days, most employees appreciate that keeping their job, not to mention keeping their employer afloat, requires added effort on their part.  I’m an advocate of giving field supervisors as much training and responsibility for safety as they can handle.  You should meet regularly with managers and supervisors to discuss safety issues generally, and accidents and near-miss occurrences in particular.  Encourage them to take responsibility to report whatever problems they observe.

“Communication” and “employee involvement” mean that the rank-and-file should be made aware that safety remains a top concern, but requires greater alertness and responsibility on their part.  More broadly, communication means reaching out to people outside your company who may be able to assist you in making your workplace safer, while conserving money.

To give just a few examples, if yours is a union shop, your employees’ union may have training or other resources to offer.  Shop stewards should be enlisted to assist in impressing on your employees that OSHA compliance and injury avoidance is more than ever a shared responsibility, and that while management is striving to maintain safety (and keep the company going) obvious transgressions ? e.g., failing to tie off while working aloft, and especially such irresponsible conduct as fighting, drug or alcohol use on the job, or stunt-driving company vehicles ? cannot be tolerated.

Another potential resource is your workers’ compensation carrier.  Many carriers will evaluate your workplace for hazards, go over OSHA and N.Y. Labor Law standards that apply, and help you develop or improve your health and safety program.  That’s definitely worth a phone call.

Finally, stress the basics.  OSHA’s construction standards are complex, but most injuries result from a relative handful of hazards (falls from elevations, trench cave-ins, struck-by accidents, unsafe scaffolds and stairwells, openings in surfaces, and working too close to live power lines).  Most of the essentials, frankly, can be summarized in a three-page checklist, embracing eye, face, foot hand and head protection and PPE, scaffolding, excavations, electrical safety, floor and wall openings, elevated surfaces and fall protection, crane safety, forklift and vehicular safety, and hazard communication.  Such a limited focus may leave you exposed to the sharp eye of a zealous OSHA inspector for items not covered, but if the basics are understood and observed by your employees, most serious accidents (and most-often-cited OSHA violations) should be avoided.

Construction companies large and small are facing the need in these times to work and plan smarter, and be more cost-effective.  Employee safety is a critical element of your company’s success. Make sure it remains on your agenda.

Forty years after the passage of the OSH Act, there remains no definitive answer to a question of considerable practical importance.  On a multi-employer jobsite, does responsibility for OSHA compliance rest singly with each employer (such responsibility being limited to its own employees)?  Or does responsibility extend to any employer that creates a hazard, or controls an area in which there exists a hazard ? even if none of its own employees are exposed?

Posed another way, does the Act create a duty on the part of each employer to direct the work of others’ employees as necessary to ensure OSHA compliance, overriding the rule that each trade controls its own employees, and is responsible for its own means and methods?

In the first years following the enactment of OSHA in 1970, the Commission held (in the words of one 1973 decision) that Congress did not intend to go so far as to make a contractor who subs out work (while retaining control of the jobsite) “responsible for the safety and health of working men and women who do not work for him, who are not subject his direction and control, who are not on his payroll and who cannot be discharged by him.”

In the years that followed, however, the Secretary promulgated instructions to enforcement personnel, creating what became to be known as its “Multi-Employer Policy” (“MEP”).  This authorized citations to employers for violations they had created, or in areas under their control, even if none of their own employees had been exposed.

Changing his view, former Commissioner Cleary (who had joined in the unanimous decision quoted above, confining OSHA liability to the employment relationship) in a series of opinions in the 1970s proposed several theories expanding liability beyond the traditional employment relationship.  One such theory was that, in order to accomplish the remedial purpose of the OSH Act, “employee” should not be construed “solely according to common-law concepts of master and servant.”  For purposes of the OSH Act, he argued, “employees of a subcontractor should be considered the employees of the general or prime contractor.”

This broader view of OSHA liability came to be the prevailing one, and found wide approval in the Courts of Appeals.

The standard came to be one holding employers responsible for violations of other employers when they “could reasonably be expected to prevent or detect and abate the violations” thanks to their “supervisory authority and control over the worksite.”

In 2007, however, in a split decision, the Commission (in what came to be known as the “Summit I” case) construed 29 C.F.R. ¬ß 1910.12(a) ? the applicability provision for OSHA’S construction standards ? as limiting a construction employer’s duties to its own employees. ¹

“Summit I” became “Summit II” when the Commission’s determination was reversed by the U.S. Court of Appeals for the Eighth Circuit in St. Louis.  The Eighth Circuit decision ? technically controlling only within that Circuit ? reasoned that permitting the issuance of citations to employers whose own employees are not exposed to the hazard is justified by the mandate of ¬ß 1910.12(a) to protect not only employees, but “places of employment.”

In 2005, Summit Contractors, the employer involved in Summit I and II, was cited for a new violation.  Summit was general contractor on a project on which it subbed out nearly all of the work, having onsite only a superintendent and assistant superintendent.  Summit’s subcontracts provided that Summit “may provide . . . temporary electrical services” which the subcontractor would “make use of . . . as provided.”
Summit provided a rented portable generator and a spider box.  Summit’s super did not request that the generator be equipped with a ground fault circuit interrupter, and did not inspect it for GFCI protection when it was delivered.   The rented equipment was put into service, with the framing sub’s employees using portable electric tools that they plugged into the spider box.

OSHA cited Summit for violating the electrical standard mandating GFCI protection.  After a hearing, the ALJ affirmed the citation, and assessed the proposed penalty.  Neither of the two Summit employees on the project was among the employees exposed.

The Commission saw this case, which will presumably go down as “Summit IV“² as appropriate for a reconsideration of “Summit I.”  In this newest case, a 2-1 majority of the Commission overruled its prior decision in Summit I, approved the Eighth Circuit’s reasoning in Summit II, and affirmed the citation.
In addition to making the familiar invocation of the remedial purpose of OSHA, the Commission rejected Summit’s threshold argument that the U.S. Supreme Court decision in Nationwide Mutual Insurance Co. v. Darden (1992) precludes the imposition of OSH Act liability.

Darden reaffirmed a rule that terms in statutes having familiar common-law meanings should be construed accordingly, unless Congress has provided a different definition.  The Act’s definition of an “employee” is essentially the common-law one. Summit argued that, since it did not control its subcontractors’ employees, the latter could not meet traditional agency law criteria for master-servant relationships, and hence there could be no OSH Act liability.

The majority in Summit IV all but breezed past Darden, relying chiefly on an argument that the focus of the OSH Act is on workplaces, and a 2007 Third Circuit case that pronounced Darden to have “no impact” on whether the Act covers workers other than common-law employees of the employer.
Commissioner Horace A. Thompson’s dissent in Summit IV argues persuasively that the MEP arose from former Commissioner Cleary’s 1970s dissents (which, by 1975, won Commission approval in theGrossman Steel case) and represented a choice, based expressly on policy considerations, to define “employer” and “employee” broadly, to accomplish the Act’s remedial purpose.  However, to be consistent with Darden, liability should have to require not just that the employer control the overall work ? it must control the workers.  That necessitates a traditional employer-employee relationship, which ought to nullify the MEP.

As for the majority’s treatment of ¬ß 1910.12(a), Commissioner Thompson’s dissent cites two D.C. Circuit cases that noted (although they did not expressly rule) that “the relevant regulation by its terms only applies to an employer’s own employees . . . leaving little room for invocation of the [MEP].”  The dissent also points out that the Secretary’s “controlling employer” theory imposes an obligation different from that imposed by the Act, or by ¬ß 1910.12(a).  “It is one thing to protect employees by complying with appropriate standards,” the dissent notes, but “it is quite another to protect employees by requiring others to comply.

The dissent also ably refutes the Eighth Circuit’s analysis that seized upon the term, “places of employment” (and the rule of statutory interpretation that disfavors interpreting any terms in a statute as meaningless or redundant) as necessarily implying a duty to all employees, not just one’s own, in the employer’s workplace.  The dissent likens the Eighth Circuit’s approach to “slicing a single word from a sentence, mounting it on a definitional slide, and putting it under a microscope in an attempt to discern the meaning of an entire statutory provision.”

In its context, the dissent concludes, the reference to “employment and places of employment” means that employers should protect their own employees from the full array of risks, by complying with the Part 1926 standards.  It is exorbitant to construe “places of employment” as extending the employer’s duty to include employees other than or in addition to its own.

While I read Commissioner Thompson’s dissent in Summit IV as discrediting the MEP as an impermissible expansion of OSHA’S powers, it also makes a strong practical argument for limiting liability to the affected workers’ own employer, who will more often be in a readier position to identify hazards (and have the technical know-how to correct them).

While I will not be surprised if Commissioner Thompson’s views gain acceptance in the Courts of Appeals leading, eventually, to the overthrow of the MEP, for the time being you must continue to presume that you may be cited for violations as a “creating” or “controlling” employer, even if none of your own employees are exposed.