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.

A recent ALJ case, involving a multi-item citation, underscores some unusual, and some recurring, issues in OSHA compliance and procedure.

The case, Secretary v. ASM-Sanders, Inc., arose out of work being done by a mechanical and HVAC subcontractor at the Warner Robins Air Force Base in Georgia.

Part of ASM’s work involved installing pipe from the access highway to a chill water plant.  That pipe had to be installed at a downward angle, below existing utility lines.  ASM was using 6-inch PVC pipe, covered with 2 inches of insulation and 2 inches of hard casing.

Two ASM employees, Andre Maldonado and superintendent Greg Arra, were working together with employees of ASM’s sub, Dublin Mechanical ? its owner, Jacky Brown, and his helper, Adam Westberry.  ASM had discovered a leak in the recently-installed chill water line, and Arra, accompanied by Maldonado, Brown, and Westberry, was making repairs.  Arra used sandpaper to smooth the ends of the pipes to be joined, then treated the sections with solvent and cement.  The workers then slid the two sections of pipe together, and left together for lunch.

During their lunch break, Arra told the three other men that he did not want to test the repaired pipe until the following morning, to give the newly-joined section of transition pipe time to cure.
However, shortly after returning from lunch, Brown asked Westberry and Maldonado to help him test the pipe.  Brown asked Westberry to pressurize the line to 100 psi, and then got down into the trench to see if the repair had been effective.  Maldonado was working outside the trench, and above Brown.  Arra was working about 100 feet away, putting bedding into the trench, and was not aware that the line was being pressurized.

As pressure in the line reached about 70 psi, the pipe exploded, and a section of it struck Brown in the head.  The force of the explosion knocked Maldonado off his feet.  Maldonado called out to Arra, who told him to call 911.  The pipe then exploded in a second location, knocking Arra down, as he tried to come to Brown’s aid.  Emergency personnel arrived shortly, but Brown was pronounced dead at the scene.

OSHA compliance officer Caliestro Spencer arrived at the site at dusk, and returned the following morning to begin his investigation.  Carmine Squatriglia, the safety director for ASM’s parent company, arrived from out of town that same morning.  After a brief delay ? the Air Force had secured the accident site as a crime scene ? the site was released to OSHA.  Spencer conducted an opening conference in ASM’s trailer, and took witness statements from the workers and AFB personnel.  He also inspected, measured, and photographed the trench in which the men had been working.

Spencer charged ASM with three violations.  One was under OSHA’s General Duty Clause, ¬ß 5(a)(1), which mandates that employers furnish their employees with employment and a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to the employees.  This citation item was based on the use of compressed air to test the PVC pipe.
The two additional citation items were for having workers in an unshored trench more than 5 feet deep, and for failing to provide a stairway, ladder, ramp or other safe means of egress from an excavation more than 4 feet deep.

When the matter came on for trial before the ALJ, ASM made, and the judge rejected, a motion to dismiss, based upon the compliance officer’s refusal to permit ASM’s representatives to be present during his (1) interviews of Maldonado, Westberry and others; and (2) inspection of the accident scene.
OSHA’s procedures do not permit management to be present during employee interviews.   This is not entirely fair to employers (as hearsay evidence, attributed to unnamed employees, can be received in evidence at the trial, and may even constitute an “admission” by the employer).  Nevertheless, these procedures are deemed to be necessary, to protect employees from potential retaliation.  Accordingly, ASM’s motion to dismiss was squarely rejected as to that ground.

The other issue ? that ASM’s representatives were excluded from accompanying Spencer during his inspection ?was taken more seriously.  While the ALJ disapproved Spencer’s having denied Squatriglia the opportunity to accompany him (and did not credit Spencer’s claim that he had invited Arra to do so) he did not grant the motion to dismiss, because he determined that ASM had failed to show any prejudice flowing from such denial.

Turning to the merits, recall that OSHA’s “General Duty Clause” is violated when (1) a condition or activity presents a hazard; which hazard (2) is recognized by the employer, or by the industry generally, as such and (3) is likely to cause death or serious physical harm; and (4) a feasible and effective means exists to eliminate, or materially reduce, the hazard.

The Secretary contended (and the ALJ agreed) that the elements of a General Duty Clause violation were shown, as employees were exposed to a struck-by hazard when the 8″ insulated PVC pipe was filled with compressed air to test for leaks.  Ample proof that this posed a hazard of death or serious injury was found from the fact that the pipe exploded, and Brown was killed when struck in the head by a piece of the pipe being tested.  A ready means of abatement existed:  to use only shatter-resistant materials.
The General Duty Clause citation item was vacated, however, and no penalty assessed, because the ALJ found that ASM had not had actual or constructive notice that pneumatic testing was being conducted on the day in question.  Arra had plainly told his crew that he did not want to test the pipe until the following day, Brown (not an employee of ASM) had taken it upon himself to order the testing, and Maldonado had no supervisory authority.  It was not foreseeable, the ALJ found, that Brown would disregard Arra’s instructions.

However, the other two items were affirmed, and monetary penalties assessed (although the item as to the depth of the excavation was downgraded from a “Willful” violation to a “Serious” one).
The lessons from the ASM case are as follows.

1.  Be aware that you are not entitled to be present during OSHA interviews of your employees.
2. You can, however, and should have a representative accompany the OSHA compliance officer during his or her inspection.
3. Know your materials.  PVC pipe, to use the example at hand, is not all the same.  Some types can be tested under pressure; others cannot.  It is important (especially when you are working in collaboration with other contractors) to have clear specifications and lines of authority regarding material purchases and testing procedures.
4. There is little excuse for trenching violations.  These are a leading cause of injury and death.  After fall protection violations, these are the most frequently cited by OSHA at construction sites, and the rules are not particularly complicated.¹   A trench deeper than 5 feet (unless in stable rock) must be sloped, shored, or otherwise protected against a cave-in.  Period.  There is really no excuse for not measuring the depth of the trench. If it’s even close to 5 feet, it’s better to have a written record made that it was measured, and better still to have photographs taken before any incident has occurred, or OSHA inspector has appeared.  Even if less than 5 feet deep, moreover, the trench should be inspected at least daily by a “competent person,” and written records of inspections should be maintained.
5. If you put men down into trenches, provide them with ladders.  Clambering on pipes, cables, and duct banks is not a suitable means of egress.  A way out of the excavation should be readily accessible in case of an emergency.  Often (for example, where the trench is unusually deep, or there are obstructions on the bottom service of the trench) you will want to do better than the minimum under the standard, which requires a ladder or other means of egress within 25 lateral feet, where the excavation is 4 feet deep or deeper.
6. Always keep the General Duty Clause in the back of your mind.  Not every hazard equals an OSHA violation, but a recognized hazard, posing a danger of death or serious injury, and for which means of abatement are available, may be.

On July 28th, OSHA released its new safety rule aimed at reducing injuries and deaths related to the operation of construction cranes.

The new rule, most of which will come into effect on November 8th, has been a dozen years in the making, and supersedes the existing rule promulgated in 1971.

According to OSHA, the new rule “is designed to prevent the leading causes of fatalities including electrocution, crushed-by/struck-by hazards during assembly/disassembly, collapse, and overturn.  It also sets forth requirements for ground conditions and crane operator assessment.  In addition, this rule addresses tower crane hazards, the use of synthetic slings for assembly/disassembly work, and clarifies [its] scope, by providing both a functional description, and a list of examples for the equipment that is covered.”

The new rule, OSHA estimates, “will prevent 22 fatalities and 175 non-fatal injuries each year.”

The substance of the new rule will be the subject of a follow-up article, as it runs to more than 1,000 pages in the Federal Register.  The entire rule can be viewed online at www.osha.gov/doc/cranesreg.pdf.¹ OSHA is promising to have fact sheets and other compliance assistance material available within the next month.

While I will own up to not having read the new rule from front to back, I can offer a heads-up and references to some of its salient provisions, as follows:

First, the new rule governs most types of cranes and derricks when used in construction-related activities (see the definition of construction at 29 C.F.R. ¬ß 1911).  As you probably know, Part 1910 standards apply to general industry, and Part 1926 covers construction.   The new rule will apply to general industrial employers (and to maritime operations) only when cranes and derricks are used in construction-related activities.  The use of cranes in, for example, a manufacturing plant, not for construction purposes, will not be affected.  (For cranes used in demolition, see ¬ß 1926.1501).
Second, the new rule covers most but not all types of cranes and derricks engaged in construction activity.  You can refer online to the scope section at ¬ß 1926.1400, which outlines the types of equipment within the coverage of the rule.  Boom trucks are covered, as they are considered cranes.  Excavators used to hoist loads with a sling are not covered, but multi-purpose equipment is covered, when it is configured like a crane (as described in the preamble to ¬ß 1926.400).  Telehandlers with rotating upper units and booms are not covered, unless equipped with a winch for hoisting.  Heavy equipment service trucks, as used on construction sites to lift parts for equipment repair, are also excluded. 

Another noteworthy change is that the required minimum distance from active electrical power lines is increased from 10 feet to 20 feet.  (Information regarding construction crane activities related to electric utility work may be found in ¬ß 1926.1400, and ¬ß¬ß 1926.1407 through 1411).

Fall protection standards for employees working with cranes are set forth in § 1926.1423.

Perhaps the biggest change overall is that, nationwide, all crane operators will have to be third-party certified by 2014.  In those cities and states in which crane operators are already required to be certified, of course, those requirements continue in effect, so long as they are otherwise consistent with the new rule.  The documentation of certification is described in ¬ß 1926.1427.  

Additionally, both signal persons (see ¬ß 1926.1428) and riggers (¬ß 1926.1401) will be required to be “qualified” (although not third-party certified).

Shift and monthly inspections must be done by a “competent” person.  Annual inspections must be performed by a “qualified” person (as defined in ¬ß 1926.401).

If you have followed the progress of the rule through the lengthy rule-making process, you should be aware that a number of important changes and additions were made since the rule was proposed.  Among the notable additions and changes are the following:

• The operator certification test may be administered in a language, other than English, understood by the candidate.
• Under ¬ß 1926.1427 of the new rule, employers will have to provide the certification for employees employed by them on the effective date at no cost to those employees.
• There are new requirements that require the exchange of information among employers concerning ground conditions on the job site.
• Employers will generally be required to comply with manufacturers’ recom¬≠mendations for the use of synthetic slings.
• Whenever employees are present in the “fall zone,” the load will have to be handled by a qualified rigger.  (The “fall zone” is defined as any area where the load can reach, if lost or out of control).
• Tower crane parts will be required to be inspected before the crane is erected.
• Forklifts are within the scope of the new rule, but only when they are configured like a crane.
• Pole work related to power transmission and to telecommunications has been excluded, although it is covered by a general industry standard (¬ß 1910.269).
• Employers whose employees are qualified in work under subpart V (power trans¬≠mission and distri¬≠bution) of Part 1926, the construction standard, may comply with ¬ß 1910.269 of the general industry standard.

The new rule also clarifies that, consistent with the overall OSHA scheme of things, federal OSHA does not pre-empt local or state rules (many states have their own rules, which are required however to be at least as effective as the federal standards).  States such as California and North Carolina which have their own OSHA statutes will have six months to update their own rules, if necessary.

OSHA estimates that about 267,000 construction, crane rental, and crane certification establishments, employing a total of 4.8 million workers, will be affected by the new standard.  

Keep in mind that, if you are a general contractor, you will generally be co-responsible for compliance with the new crane standard, even if none of your own employees are themselves involved in the operation of covered equipment.

The good news, to be sure, is that a great deal of hard work has obviously gone into this new rule and, certainly, it was the product of a process in which the voices of manufacturers, construction employers, and labor organizations were heard.

Whether the new rule might have been formulated and adopted more expeditiously, or expressed in fewer than 1,070 pages, are now moot points.  Come November, most of the key provisions (other than the third-party certification for operators) will be in effect, and you need to familiarize yourself with the new rule (look for online help after Labor Day, or contact your regional or area OSHA office) and plan accordingly.

An ALJ recently vacated four “Serious” citation items (and $20,000.00 in penalties) arising from an incident at a Manhattan construction site, in which an employee was hospitalized following a 17-foot fall through a faulty floor hole cover consisting of an unsecured sheet of plywood.

Eurotech Construction Corp. had two subcontracts with Tishman Construction on a high-rise construction project.  One subcontract was for masonry work, and the other was to install and maintain temporary fall protection (perimeter guarding, barriers and floor hole covers) throughout the site.

On the day of the accident, Eurotech was erecting a masonry wall on the 45th floor of the building.  It was working in a location at which another subcontractor, Century Maxim (“Century”), had been working that same day.  At about 1:30 in the afternoon, Roberto Rodriguez fell through a floor hole from the 45th to the 44th floor.  OSHA Compliance Officer Robert Stewart arrived at the scene about two hours later, photographed the plywood sheet he believed to have been the faulty cover, and had an opening conference with Richard Centina (a superintendent for general contractor Tishman) and Gerard Sheridan (a Eurotech foreman).

While the CO did not determine who had installed the faulty hole cover, he concluded that the condition had existed for 3-4 days, during which Eurotech’s employees had been working in the area, and that Eurotech should be held responsible for the condition.
Four “Serious” citations were issued, one each for failing:

• to do frequent and regular “competent person” inspections of the floor hole cover;
• to secure from displacement the floor hole cover through which Rodriguez fell;
• to color-code or to label the floor hole cover “HOLE” or “COVER;” and
• to re-train employees, when they were unable to recognize that fall protection was required while working near the inade¬≠quately secured floor hole cover.

The employer preserved its rights by filing a timely Notice of Contest, and contested all four citation items, as well as the $20,000.00 in penalties proposed.

CO Stewart, in conducting his investigation, had interviewed (in addition to Centina and Sheridan) two additional Eurotech foremen, Jerome Byrne and John O’Shea.  He appears not to have interviewed Rodriguez, or to have found anyone who claimed to have seen the accident.  It was not disputed that the cover had not been labeled or color-coded, and was not nailed down properly.  Stewart cited Eurotech, based on its employees having been working near the hole cover for several days, but he never ascertained who actually installed the improper cover.  He was the Secretary’s lone witness at trial.

Byrne, Eurotech’s masonry foreman, testified about accompanying Rodriguez to the hospital, that he conducted weekly safety meetings at which fall hazards were discussed, and that other contractors, including Century, had been working on the 45th floor.

Project Manager Brian Murphy testified about the fall protection subcontract, his and foreman O’Shea’s efforts to enlist Tishman’s help in counteracting other subcontractors’ destruction or breach of fall protection installed, and how a marked improvement in reporting came about as a result of Tishman’s making a demand on all subcontractors.  Murphy also testified that he consulted with O’Shea daily, and that Eurotech regularly had 6-7 men walking the floors to inspect fall protection installations as part of their daily routine.

The ALJ found most convincing the testimony of O’Shea, and ruled that knowledge of the violative condition was negated by O’Shea’s testimony of his twice-daily inspections (including on the morning on the day of the occurrence), the plausibility that Eurotech’s employees on a busy day might not have noticed the non-compliant cover, plus the lack of real proof as to how long the unsafe cover had been in place.

While it appeared that a proper cover had been removed and replaced with the unsafe one, the ALJ found that Eurotech’s burden of care did not extend to anticipating the actions of other contractors.  “If a passageway is properly lighted,” the ALJ stated by way of illustration, “a subcontractor does not have to stand around and see that the bulb does not burn out.”

For the foregoing reasons, the ALJ vacated the first three citation items.  It vacated the failure-to-train item, based on Eurotech’s demonstrated regular training, and the Secretary’s failure to show that the improper cover (not shown to have been in place for any length of time) gave Eurotech reason to believe that its employees lacked the understanding and skill to recognize a faulty floor hole cover.

The lessons from the Eurotech case are these.  First, fall protection isn’t just about body harnesses and lanyards, and floor holes are a major and often-underestimated part of the problem.  Always keep in mind that falls are both the biggest single cause of injuries and deaths on construction sites, not to mention the construction hazard most often cited by OSHA.

Second, you (and your employees, especially your field supervisors) need to be familiar with the OSHA standards governing floor holes and floor hole covers.  Among other requirements, the holes have to be covered, the covers must be of the proper size, and properly labeled and secured, and you must conduct (better still, conduct and keep written records of having conducted) regular and frequent “competent person” inspections.

Third, Eurotech is another recent case in which a separate “failure-to-train” item appeared in the citation. Regular safety and OSHA-compliance training must be conducted, and documented.  And, when management learns of more than isolated instances in which employees fail to conscientiously follow the rules, it’s important to re-train.  You want to create a record of having detected a problem; a proactive response; and measures to ensure employee safety and prevent future violations, while making clear to your employees that their safety is a major concern, and non-observance of OSHA standards is unacceptable.

Fourth, whenever you are cited for an OSHA violation, keep in mind that the employer’s actual orconstructive knowledge of the violative condition is a fundamental element of the Secretary’s burden of proof.  The mere existence of a violative condition is not sufficient:  it must be one that the employer (by its supervisory employees) actually knew existed, or could have been discovered by it with the exercise of reasonable diligence.

Finally, while in a recent article I suggested that COs may enjoy a “home field advantage” in OSHA trials where witness credibility is critical, in Eurotech the employers’ witnesses were found to be more credible.

While, to be sure, the CO’s testimony was not squarely at odds with that of the employer’s witnesses, and the ALJ made no finding that the CO had told less than the truth, I think that the CO failed to do a thorough job, and that O’Shea’s experience and demeanor (and the consistency among the witnesses for the employer, each of whom was excluded from the courtroom while his colleagues testified) won the day.

Sometimes, complying with OSHA can be tricky.  There are many construction-related standards, and some of them require careful monitoring, or the application of some technical expertise.
Others, however, are pretty much matters of common sense.

If your employees are engaged in the application of “harmful contaminants,” including but not limited to “paints, coating, herbicides, or insecticides,” you need to provide them with “adequate washing facilities.”

The relevant standard, 29 C.F.R. ¬ß 1926.51(f)(1), requires that washing facilities “be in near proximity to the worksite and shall be so equipped as to enable employees to remove such substances.”

As an Administrative Law Judge held in Secretary v. Eshbach Brothers, L.P., a water hose and a 55-gallon drum won’t suffice as an “adequate washing facility.”  While the standard in question does not expressly so provide, the Secretary has determined that workers exposed to Portland cement must be provided with clean water, non-alkaline soap, and towels.  Since the Secretary’s interpretation is entitled to deference if reasonable, these simple requirements were upheld by the ALJ.

Eshbach was doing masonry work, as a subcontractor, on a National Guard facility in Pennsylvania.  An OSHA compliance officer inspecting the jobsite  viewed Eshbach’s employees perspiring in the July heat, mixing Portland cement with water, and getting wet cement on their hands and arms.  He photographed open bags of Portland cement displaying large-type warnings that, when in contact with moisture in the eyes or on skin, or mixed with water, the material becomes highly caustic, and can damage or severely burn the eyes or skin.

Asked by the compliance officer what employees used to wash up with, an employee, Timothy O’Brien, pointed to the water hose and 55-gallon drum.  Eshbach was cited for a “Serious” violation of the standard, and contested the citation and the penalty.

On the day of the inspection, the OSHA compliance officer had spoken both with the general contractor’s job superintendent, John Yeich, and with the employer-subcontractor’s foreman, John Gechter.  Mr. Yeich had assured him that he would assist the employer, to ensure that the condition was corrected.
On the following day, the compliance officer telephoned Wilson Eshbach, a senior manager of the employer having safety oversight, and was again assured that the situation would be corrected.

At the trial, however, Eshbach sought to fashion a defense, based upon the existence of a bathroom inside the general contractor’s trailer.  O’Brien testified that, while he had never actually used the bathroom in the trailer, he and other employees did have access to it.  O’Brien stated that his custom was to use the hose to clean off cement; that he washed with soap and water at home; and that, in three years of working for Eshbach, he had never suffered any cement burns.

The employer’s foreman, Mr. Gechter, testified that Dolan’s trailer was favored by employees as it had air conditioning, and that Eshbach conducted its safety meetings there.  O’Brien, however, testified that Gechter had never spoken to him about washing up with soap and water, and Gechter stated that he had not been aware of the hand-washing requirement when the compliance officer spoke with him.

While it’s rare that one can diagnose with certainty, just by reading a decision, that witnesses for the losing side were insufficiently prepared, that may have been the case here.  I suspect that Eshbach’s representative failed to think through his “theory of the case,” and just how he intended to establish it through the employer’s witnesses.

Not only did Eshbach fail to offer any evidence that any employees actually used the lavatory in the job trailer for washing up after handling cement, it failed to show that employees had been told they could use the trailer for that purpose.

Mr. Gechter, the employer’s foreman and “competent person,” testified not only that he had not even inspected the bathroom in the trailer to ascertain that it contained towels, but that he had been wholly unaware of “the hand-washing thing.”  It could not have favorably impressed the ALJ that the so-called “competent person” testified that he had been “floored” by how much the CO “kept going on” about the “thing.”

In developing a defense strategy ? indeed, in determining whether to contest a citation ? you need to know (and to make sure your attorney understands) the practical and economic realities of OSHA litigation.

It’s not that OSHRC proceedings are completely stacked against you.  The ALJs are knowledgeable specialists, and nearly always conscientious in their application of the law.  Nevertheless, as the respondent, you have significant, built-in disadvantages.

One is that the DOL has attorneys on salary, not billing at hourly rates, who know the OSH Act back to front (and are known to the judges, too).  And, while it’s “good news” is that monetary penalties under OSHA are generally modest, a “bad news” consequence of that happy fact is that few, if any, private attorneys make their living mostly by defending OSHA citations.  As a result, your lawyer will almost certainly have less relevant experience, and less in-depth knowledge of the OSHA standards, than his DOL adversary.  He or she will have a “learning curve” in nearly every case.

It’s a challenge, too, for a private attorney to properly prepare your OSHA case for trial, in a manner commensurate with the (usually) small amount of money involved.  In all but the smallest commercial cases, for example, depositions are almost a given — but in an OSHA case, even deposing the CO will often be an extravagance.

While I wouldn’t accuse the ALJ’s of raw partiality, the DOL (as I trust that everybody knows) is the “home team” at an OSHRC trial.  The same CO you believe to have been lazy and careless, to have made up facts to paper over his sloppy work, and whose trial testimony impressed you as inconsistent, evasive and unconvincing, will appear in the ALJ’s decision as an upright, unbiased and wholly credible witness.  If your only route to winning at trial will unavoidably require you to run directly over the testimony of a government witness — if you lack any defense, sufficient to get the citation vacated, that doesn’t depend upon the ALJ finding that the CO testified untruthfully — your best alternative might be to throw in the towel.  While few OSHA cases are straight-up “swearing contests,” that’s not a match you can hope to win on points.  Where there is no basis on which the case can be decided, other than a finding as to the truthfulness of a CO or other government witness, it’s not enough to lay a glove on him in cross-examination; you will almost always need to “put him on the canvas.”

Know, too, that the ALJ, by emphasizing that the outcome reached was very much based upon his assessment of the truthfulness of witnesses who appeared and testified before him, can come close to foreclosing all prospects of a successful appeal.  Findings of fact, to the extent that the same are based on a judge’s findings concerning the credibility of witnesses, are all but untouchable on appeal.

A related disadvantage is that, under the Federal Rules, essentially anything said by employees can be deemed an admission by the employer, and will not be excluded as hearsay.  Plus, hearsay is admissibleunder the rules governing administrative proceedings ? and, in addition, there are rules (in the nature of whistleblower protections) which limit the disclosure to you of what your employees may have told OSHA personnel.

So, if the compliance officer testifies that an (unidentified) employee of yours told him that violations of the cited standard were both rampant and known to management, your lawyer will be in the impossible position of having to “cross-examine” an unnamed witness.  If the CO chooses to buttress his case, by stating that employees made statements damaging to the employer, he’s pretty much at liberty to enhance, or even invent outright, such statements.  (This is another good reason to treat the CO respectfully during his inspection.)

So — in addition to providing “adequate washing facilities” for your employees — it is indispensable, if you elect to invest in a trial of an OSHA citation, that you have a “theory of the case” (an account of what happened, which if established negates the citation) and a detailed plan as to how to prove it.  You must discuss carefully with counsel the nature of your defenses, and agree upon a “theory of the case,” and the evidence to be presented in support.  If you fail to identify what you need to prove, what your witnesses are going to say, and exactly what evidence you have that will give you a chance to win, you would be better off, in almost any OSHA case, withdrawing your notice of contest, paying the recommended penalties, and moving on.  If the case isn’t worth the legal fees for counsel to meet with your witnesses to prepare them to testify, it’s almost certainly not worth the fees for counsel to appear and actually try the case.

Several recent installments have discussed OSHA’s increasing emphasis on “failure to train” as the basis for citations, and as a means to circumvent some of the requirements of OSHA’s “General Duty Clause.”

I have also highlighted practical difficulties employers face in not just going through the motions of training, in order to satisfy OSHA requirements, but in training effectively, so as to accomplish the primary goal of getting employees to “work safe” and thereby reduce the number and severity of job-related illnesses and injuries.

While I am a strong proponent of safety training, and would encourage you to all you can reasonably afford to do in this area, in light of the limited “absorption rate” of even the best training amongst the construction rank-and-file, I have suggested that special emphasis be placed on your supervisory personnel.  They, especially, should receive both comprehensive training in all of the OSHA standards affecting your trades.  No less importantly, supervisors should have ownership’s clear mandate to be alert to safety transgressions, and to correct and discipline workers who break safety rules. ¹

A recent Administrative Law Judge decision signals some recognition at least that, while employers are responsible to lead the proverbial horse to water, it’s not a per se violation of the obligation to train, whenever an employee commits a safety infraction.

The facts in Secretary v. Republic Services of Florida were as follows.  The employer was engaged in garbage collection in South Florida.  Its employee was operating a truck-mounted crane, to unload a container at an apartment complex.  The crane’s boom came within two feet of an overhead power line energized to 230,000 volts, and not guarded or insulated.  Electricity from the line shot to the ground, damaged the crane, thrust Girtman, the operator, back in the cab of the vehicle (causing him to lose consciousness) and opened a hole in the ground.  Girtman, luckily, survived, but was off work for a month, and resigned not long after returning to work on light duty.

A general-industry OSHA standard prescribes that employees be “trained in” and “familiar with” the safety-related work practices required by 29 C.F.R. ¬ß¬ß 1910.332 through 1910.35 that pertain to their job assignments.

The specific standard in which the employer was alleged to have failed to train Mr. Girtman was § 1910.333(c)(iii)(A), which provides as follows:

Any vehicle or mechanical equipment capable of having parts of its structure elevated near energized overhead lines shall be operated so that a clearance of 10 ft. (305 cm) is maintained.  If the voltage is higher than 50kV, the clearance shall be increased 4 in. (10 cm) for every 10kV over that voltage. . . . ² 

The citation issued to the employer consisted of two items.  One was that Girtman had not been trained in the clearance distances in the standard just quoted.  The second was that Girtman had been exposed to the unsafe condition of the crane being operated only 2 feet distant from an energized, 230kV power line.

The employer was shown to have a safety program including a safety manual, monthly safety meetings, and weekly tool box talks.  Girtman’s testimony that, in his 14 years of employment, he had never been trained in the specific distance to maintain from an energized overhead line was contradicted both by the company’s safety manual (which stated the distances per the OSHA standard) and testimony by his supervisor.  The latter testified that the distances were mentioned form time to time in monthly safety meetings, and had been referenced specifically in at least two such meetings in the 16 months prior to the occurrence, at least one of which had been attended by Girtman.³ 

Clearly, the ALJ found based on the evidence presented, in spite of such training received Girtman “obviously did not understand the need to maintain a safe distance or what the safe distance was.”  Touching on a difficult and sensitive point, the ALJ held in effect that a defense to the first citation item was established by proof of the provision of the training.  And, while the Secretary had urged that the standard’s requirement that employees be “familiar with” the distance requirements implied a requirement that the employer not onlyinstruct employees in the standard, but also conduct testing to ascertain that the instructions have been absorbed, the ALJ rejected that view:

The dictionary defines “familiar” as “frequently seen or experienced.” . . . The occurrence of an accident does not establish than an employee did not receive the training. . . . Also, an employee’s failure to comply with a safety rule does not establish a failure to train.

 Based on the foregoing, the ALJ vacated the failure-to-train citation item, holding that the Secretary had failed to prove, first that the employer had not provided training regarding the safe distance to maintain from overhead power lines and, second, that the standard requires employers to test employees, to ensure that they understand the requirements.

As for the second citation item (that Girtman had been exposed to the hazard of the crane boom being only 2′ from the energized power line) that ALJ vacated that violation as well.  It is an essential element of an OSHA violation that the employer have knowledge of the condition, whether actual knowledge orconstructive knowledge.  The latter, of course, is shown by circumstances in which the employer should have known of the condition with the exercise of reasonable diligence.

Actual knowledge was not alleged in the Republic Services case.  As the ALJ noted, the factors relevant to a “reasonable diligence” inquiry include the duty to inspect the work area and anticipate hazards, the adequate supervision of employees, the formulation and implementation of training programs, and work rules designed to ensure that employees work safely.

By those criteria, the ALJ found, it had not been shown that the employer should have known of Girtman’s failure to comply with the safe distance requirements for overhead power lines.  That citation item was vacated accordingly.

While this case did not arise out of a construction scenario, if you operate, e.g., cranes, scarifying machines, or dump trucks, you will need to be in compliance with the construction-industry counterpart to the standard involved in Republic Services.  Operating equipment too close to energized power lines is, in fact, one of the most frequently-cited violations of the OSHA construction standards.

Going back to the issue of testing, in a recent OSHA case defended by my office, although the single citation item was not based on a failure to train (and the Secretary did not squarely allege that the violation consisted in, or included, the employer not testing its employees’ understanding of OSHA standards) it was pointedly raised by the Secretary at trial, and again in her post-hearing brief, that my client did not conduct such testing.

Although, perhaps, I am being overly suspicious, it occurs to me that it may be that OSHA is hoping that, if it persists in raising the issue in ALJ proceedings, it may get a ruling that effectively engrafts onto the training requirements an additional requirement of testing.  If, however, employers are going to be put to the trouble and expense of administering exams to employees, based upon their safety training, such a requirement ought to be enacted through the normal administrative rule-making process, not by judicial pronouncement.