It is said that the definition of insanity is doing the same thing over and over, and expecting a different result. In a recent decision by an Administrative Law Judge of the Occupational Safety & Health Review Commission, a construction industry contractor found this out the hard way when a repeat violation was affirmed with a penalty twice that of the mandatory minimum.
In the 2014 Secretary of Labor v. J. Reed Constructors, Inc., case, the employer contested a citation issued under 29 CFR 1926.453(b)(2)(v), which was issued following an inspection of its Louisiana worksite. The citation alleged a repeat violation of the standard, claiming that the employer permitted employees to perform work from an aerial lift without adequate fall protection. The company argued that it should be vacated because it was “unaware” of the violation and asserted the affirmative defense of “unpreventable employee misconduct.”
JRC is a family owned company which, at the time of the inspection, was acting as the general contractor (GC) for a school renovation project. Its supervisor was on site, overseeing six JRC employees and 25 subcontractors. An OSHA inspector was driving by when he observed two workers in an aerial lift applying Tyvek sheeting to the exterior walls of the school’s entrance. The lift was raised approximately 35 feet high and the workers were not tied off. The inspector parked, took photos, and approached the worksite, asking for the GC’s representative, who was inside the building at the time. Once the inspector showed him the photos, he acknowledged that the persons in the lift were JRC employees. JRC did have fall protection equipment (harnesses and lanyards) on site available for use. The crew was more than 8 hours into the workday when the inspector arrived.
The JRC representative told OSHA that he did not know how long the JRC workers had been up in the aerial lift, because another subcontractor had been using it earlier in the day and he was not present when it switched hands. However, another JRC employee told the inspector that his colleagues had been in the lift for at least 6 hours.
OSHA had previously cited JRC for violations of the same standard in 2008 and 2009 (this inspection occurred in 2012). The company paid reduced penalties in settlement for these violations. Therefore, they became final orders and could be used for repeat purposes. While the “look back” period for repeat violations of the same standard used to be 3 years, in the Obama administration, OSHA changed that to a 5-year period via policy (not through any rulemaking).
To sustain a citation, OSHA has the burden of proof and must show that: (1) the cited standard applies; (2) the employer failed to comply with the terms of the cited standard; (3) employees had access to the violative condition; and, (4) the cited employer either knew or could have known with the exercise of reasonable diligence of the violative condition. JRC conceded the first three elements, but argued that it lacked “knowledge” because the “owners and management of the company did not know that the violation was going on.”
A supervisor’s knowledge of a subordinate’s misconduct is imputed to the employer under precedential case law. While JRC had a supervisor on site, he was inside the school and the trial record established that he did not have actual knowledge of the aerial lift situation. OSHA argued that the company had “constructive knowledge” and was not diligent in enforcing the rules.
An inquiry into whether the employer was reasonably diligent involves several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which workers may be exposed, and to take measures to prevent the occurrence of violations.
At trial, the judge found that JRC did not provide safety training classes for the employees who were in the lift, and while it had a written safety manual, it was given only to supervisors (who are supposed to review it with nonsupervisory workers). The manual calls for 100 percent use of fall protection when working 6 feet above a grade, but there were no specific work rules related to the aerial lift. The employees working without fall protection spoke Spanish and JRC did not have a Spanish language version of its safety manual. The supervisor on site spoke only rudimentary Spanish, although he knew the words for “be careful” and “caution.”
The supervisor also testified that “I can’t just … sit there and watch just one set of guys work. I’m really kind of all over the place.” He said he was “super busy” on the day of the inspection. The owner of the company also testified that “We tell the guys what they need to do and when they need to do it and what safety equipment is provided for them [but] there’s no way to babysit everybody.”
The judge was not moved by the testimony. She found that JRC had a repeated history of employees failing to tie off while working from aerial lifts, based on the two prior violations. JRC was supposed to have developed a series of Job Safety Analysis (JSA) forms for different tasks but had not done any for the school renovation project, and the owner admitted that he knew the supervisor had not done this (as required) for the school project, but did not reprimand him. Neither did the company discipline the two workers who violated the company fall protection policy.
The record established failure to train employees or monitor their use of fall protection. There was inadequate supervision because the supervisor stayed inside the building all day. The safety program was poorly communicated to workers because they did not speak English. The totality of these factors eviscerated the “unpreventable employee misconduct” defense. A penalty of $14,000 was imposed against JRC, which had fewer than 25 employees, based on its “double repeat” violator status. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, February 2015
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