United
States of America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1120
20th Street, N.W., Ninth Floor
Washington,
DC 20036-3457
FINAL ORDER
Former Administrative Law Judge Ken S. Welsch issued a Decision and Order in this case affirming
the citation item at issue, and subsequently, that decision was directed for
review. On August 15, 2014, the Respondent notified the Commission of its
decision to withdraw its notice of contest of the citation and proposed penalty
pursuant to Commission Rule 102, 29 C.F.R. § 2200.102. Because the Respondent
has withdrawn its notice of contest in this case, the Commission vacates the
Administrative Law Judge’s Decision and Order.
SO ORDERED.
BY
DIRECTION OF THE COMMISSION
Dated: August 20,
2014 /s/
John
X. Cerveny
Executive
Secretary
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1924
Building – Room 2R90, 100 Alabama Street, S.W.
Atlanta,
Georgia 30303-3104
|
Secretary of
Labor, |
|
|
Complainant |
|
|
v. |
OSHRC Docket No. 12-0318 |
|
Torre Mackle
Group, LLC, |
Simplified Proceedings |
|
Respondent. |
|
Appearances:
Brooke D. Werner McEckron,
Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta,
Georgia
For
Complainant
Vincent F. Vaccarella,
Esquire, Law Office of Vincent Vaccarella, Fort
Lauderdale, Florida
For
Respondent
Before:
Administrative Law Judge Ken S. Welsch
DECISION
AND ORDER
Torre Mackle Group, LLC (TMG) is a construction
managing company located in Coral Gables, Florida. On November 16, 2011, a
safety compliance officer with the Occupational Safety and Health
Administration (OSHA), in response to a referral from the police department,
initiated an inspection into a secretary’s head injury at the Mt. Sinai Medical
Center in Miami, Florida. At the time of the injury on November 15, 2011, the
secretary was sitting at her desk in the Office of Human Resources while a TMG
employee, standing on a ladder in an adjacent office, attempted to catch a
concrete core in a bucket that had been drilled through the roof. Instead, the
employee lost control of the 29-pound concrete core and it fell through the
tile ceiling above the secretary’s desk. It struck the secretary on top of the
head; causing bleeding.
As a result of the OSHA inspection, TMG received a serious citation
on December 27, 2011. The citation alleges that TMG violated 29 C.F.R. §
1926.501(c)(3) for failing to barricade the area where employees were exposed
to falling objects such as a concrete cylindrical core. The citation proposes a
penalty of $ 3,000.00. TMG timely contested the citation.
The Secretary of Labor’s motion, filed May 9, 2012, to
allege, in the alternative, a violation of 29 C.F.R. § 1926.100(a) for failing
to provide protective helmets, was granted at the hearing. The amendment did
not change the nature of the alleged violation and hazard (Tr. 9, 13). Paschen Contractors, Inc., 14 BNA OSHC 1754,
1757 (No. 84-1285, 1990). Also, TMG was unable to show prejudice as evident by
it not needing the record kept open to offer additional evidence (Tr. 19, 200).
The hearing, designated for simplified proceedings
pursuant to 29 C.F.R. § 1926.2200 et Seq., was held on May 15, 2012, in
Miami, Florida. The hearing was reconvened on June 26, 2012 to receive the
testimony of the Director of Human Resources who was unable to attend the May
15 hearing because of a personal emergency (Tr. 19). The parties stipulated
jurisdiction and coverage (Tr. 5). The parties filed post-hearing briefs on
July 26, 2012.
TMG denies the alleged violation. It argues that the
cited standards do not apply to the working conditions and the medical center
employee was not a covered employee. Also, TMG claims the required safety
measures were impermissible and inappropriate. As an affirmative defense, TMG
asserts unpreventable employees misconduct.
For the reasons discussed, TMG’s serious violation of
§ 1926.501(c)(3) is affirmed and a penalty of $ 3,000.00 is assessed.
The
Inspection
TMG is in business as a general construction manager.
In 2011, the Mt. Sinai Medical Center contracted TMG to manage the replacement
of windows and a new roof for the Ascher Building. The Ascher Building is two
stories and contains the medical center’s administrative offices including
Payroll and Human Resources offices on the second floor. TMG assigned a project
manager to oversee the project and contracted subcontractors to perform the
work. TMG also assigned two full-time employees to work on the project (Tr. 71,
95, 148, 161-162, 188).
As part of the new roof project, additional pipes
needed to be installed through the concrete roof to increase the drainage of
rainwater. TMG contracted a core drilling contractor to drill several holes
through the roof and a plumbing contractor to install the new drain pipes (Tr.
46, 172).
On November 7, 2011, TMG’s project manager e-mailed
the medical center’s construction manager that it would “commence the
chipping/core drilling of the roof drains starting Monday, November 14th”
(Exh. C-9). The e-mail also stated that a TMG
employee assisting in the core drilling (identified as “our superintendent”)
“should be getting in contact with each of the departments on the 2nd
floor and trying to work out a plan of action to see what times work best for
the individuals affected by the work.” The e-mail advised that the work would
last one week, “with the majority of the noisy work
(chipping/core drilling) being completed by Tuesday.” Pursuant to its agreement
with the medical center, if an employee needed to be temporarily evacuated from
the area, the TMG employee was to speak directly with the affected employee,
the supervisor, or contact the hospital’s construction manager (Tr. 150).
On November 14, 2011, the core drilling work began. While
the core drilling contractor drilled three holes through the roof, the plumber,
on the second floor, standing on a 6-foot ladder held by the TMG employee,
caught the drilled concrete core (a cylindrical concrete block) in a 5-gallon
bucket (Tr. 68, 76). During this process, there is no evidence that any
employee was exposed to a falling core or what, if any, precautions were taken
to prevent employee exposure.
On November 15, 2011, because the plumber was
unavailable, the TMG employee who had assisted him was assigned by TMG’s
project manager to catch the concrete core while the other TMG employee held
the ladder (Tr. 51, 67, 194-195). As determined by the plumber, the core hole
drilled in the roof this day was located directly above the secretary’s desk in
the Office of Human Resources (Exh. C-2; Tr. 46).
Because her desk could not be moved, the two TMG employees decided to set up in
the adjacent Director’s office (Exh. C-1; Tr. 43, 72,
229). After removing the nearest ceiling tile to the wall, the TMG employee
stood on top of the 6-foot ladder holding the bucket underneath the concrete
roof where the core was expected to be drilled (Tr. 73). The employee had to
lean over the wall that separated the Director’s office and the secretary’s
work area, holding the bucket against the roof (Tr. 42). The office ceiling was
9-feet above the floor and there was an additional 4 feet from the office
ceiling to the roof (Tr. 97).
After the hole was drilled, the TMG employee lost
control of the concrete core when it dropped into the bucket. The core fell
through a ceiling tile above the secretary’s desk. As described by the TMG
employee, the “bucket knocked out of my hand when the concrete core fell – The
impact was so great that it didn’t come down, but rather it flew away from me –
it went into the bucket, but when it landed, it never really came on a vertical
plane, but rather it flew on a horizontal plane away from me” (Tr. 62). He
claimed that his “arms were getting tired from holding them up too long because
it was taking too long for it to come thru, much longer than before” (Tr. 77).
The secretary, who was sitting at her desk on the
other side of the wall, was struck on the left side of the head; causing
bleeding. She was taken to the medical center for treatment (Tr. 228, 231). The
concrete core measured 7 ¾ inches in diameter, 6 ¾ inches in length, and
weighed 29 pounds (Exhs. C-6, C-7; Tr. 101-102). The
accident occurred at approximately 9:30 a.m. (Tr. 193).
The TMG employee testified that he had not
been trained on how to perform the task. “I saw what Pablo [the plumber] did
before, so that’s about where I placed the bucket, according to what I
experienced the day before” (Tr. 79). Also, he claimed that he told the
secretary that “we’re going to drill. You need to remove yourself from this
area and we’ll let you know when we’re done” (Tr. 79). According to his
testimony, he advised the secretary at least twice to leave the area but she kept returning to her desk (Tr. 54-55). The
secretary denied receiving any instruction to leave her desk (Tr. 130).
On November 16, 2011, based on a referral from the
Miami Police Department, an OSHA safety compliance officer initiated an
inspection (Tr. 88). After arriving at the Ascher Building, the compliance
officer photographed the Human Resources offices and interviewed the medical
center and TMG employees (Tr. 90). The tile above the secretary’s desk had been
replaced and the area cleaned up (Tr. 90-91).
As a result of the OSHA inspection, TMG received the serious citation
at issue on December 27, 2011 for failing to place a barricade at the
secretary’s work area.
DISCUSSION
The
Secretary has the burden of proof.
In order to establish a
violation of an occupational safety or health standard, the Secretary has the
burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge
of the violation (i.e., the employer either knew or, with the exercise
of reasonable diligence could have known, of the violative conditions).
Atlantic
Battery Co., 16 BNA OSHC 2131, 2138
(No. 90-1747, 1994).
TMG
stipulates that the construction standards are applicable to the core drilling
work performed on November 15, 2011. If a violation is found, TMG also agrees
the violation is properly classified as serious and the penalty of $ 3,000.00
is reasonable (Conference Order dated May 8, 2011; Tr. 5).
SERIOUS
CITATION
Alleged
Violation of § 1926.501(c)(3)
The citation alleges that “[O]n or about 11/15/2011,
the company did not barricade an area where employees were exposed to falling
objects such as concrete debris and a concrete cylindrical core.”
Section 1926.501(c)(3) provides:
(c) Protection from
falling objects. When an employee is exposed to falling objects, the
employer shall have each employee wear a hard hat and shall implement one of
the following measures.
*
* * * * * * * * * * * *
(3) Barricade the area
to which objects could fall, prohibit employees from entering the barricaded
area, and keep objects that may fall far enough away from the edge of a higher
level so that those objects would not go over the edge if they were
accidentally displaced.
In the alternative, the Secretary alleges that “[O]n
or about 11/15/2011, the company did not protect an employee with a protective
helmet when that employee was working in an area where there was a possible
danger of head injury from a falling concrete cylindrical core.”
Section 1926.100(a) provides:
Employees working in
areas where there is a possible danger of head injury from impact, or from
falling or flying objects, or from electrical shock and burns, shall be
protected by protective helmets.
There
is no dispute the medical center secretary was struck on the head by the
concrete core that had been drilled through the roof. The location of the core
drilling was directly above the secretary’s desk. The door between the
Director’s office and the secretary’s work area was open (Exh.
C-2; Tr. 248). The Director, who sat at her desk near the opposite wall from
the drilling, could not see the secretary (Tr. 238). There were no barricades
placed around the secretary’s desk (Tr. 51-52, 233).
Application
of § 1926.501(c)(3)or §1926.100(a)
The standard at § 1926.501(c)(3) is more specific to
the alleged unsafe condition at issue than § 1926.100(a) and therefore deemed
the appropriate standard. McNally Construction & Tunneling Co., 16
BNA OSHC 1879, 1880 (No 90-2337, 1994) (If the same hazard is addressed by two
standards, the more specific standard preempts the application of the other
standard). Both standards address the potential for head injuries from falling
objects. However, § 1926.100(a) applies to other hazards to the head from
flying or falling objects, impact, and electrical shock and burns. The standard
requires protective helmets to protect against such hazards.
Section 1926.501(c)(3), on the other hand, addresses
only injuries to the head from falling objects. It requires a hard hat and the
implementation of additional measures such as barricades to protect employees
from such hazard. The standard addresses more closely the hazard identified by
OSHA in this case, i.e. a falling concrete core and the means of abatement,
i.e. a barricade.
Section 1926.501(c)(3) is the applicable standard.
TMG
was the Responsible Employer
The only employee exposed to the alleged overhead
hazard on November 15, 2011, was the medical center secretary who was struck on
the head by the concrete core (Tr. 17-18, 27-28, 111-112). 
A central issue in dispute is whether TMG, as construction manager,
should be held responsible for the safety of an employee of the property owner
who contracted TMG to perform the drainage work. No Review Commission cases
were identified that specifically addressed the issue.
On November 15, 2011, TMG employees were directly
involved in supervising and performing the core drilling work above the
secretary’s desk. An employer engaged in construction activities is responsible
for both those hazardous conditions to which its own employees at the site are
exposed and those hazardous conditions to which it either creates or controls
and to which employees of other employers are exposed. McDevitt Street Bovis, Inc. 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000).
This employer’s responsibility has been extended to protect employees exposed
to hazards on non-construction multi-employer worksites. Harvey Workover,
Inc., 7 BNA OSHC 1687, 1689 (No. 76-1408, 1979) (The safety of all
employees can be achieved if each employer at multi-employer worksites has the
duties to (1) abate hazardous conditions under its control and (2) preventing
its employees from creating hazards). Therefore, it stands to reason that a project
related non-construction employer’s employee, who is exposed to a construction
hazard and is required to work in the same work area, is afforded the same
protection from hazards created or controlled by a general contractor as a
subcontractor’s employees. Such application does not imply that passers-by or
unrelated third parties exposed to construction hazards are covered under the
Occupational Safety and Health Act (Act).
In this case, the medical center contracted TMG to
perform the drainage work as part of the roof project. The secretary was
employed by the medical center and worked in the Human Resources Office where
TMG’s core drilling work was performed. The secretary was an employee at a
construction worksite during the time of the core drilling. Her workplace was
the same as TMG’s construction worksite. She was exposed to an overhead hazard.
Under the contract with the medical center, TMG
controlled the construction work at the Ascher Building and was responsible for
the safe removal of the concrete core in the secretary’s work area. The TMG
employee in charge knew the work area was accessible to the secretary and that
she was exposed to an overhead hazard. TMG’s contract held it responsible to
keep medical center employees safe when performing construction work (Tr. 164).
TMG outlined the work plan and determined when and where the work would take
place (Tr. 39, 117, 163, 171). TMG in this case had a duty to protect from a
construction hazard the employee of the building owner who worked in the unsafe
work area controlled by TMG.
TMG’s employees also created the unsafe condition on
November 15, 2011 by working over the head of a non-construction employee. TMG
assumed the responsibility to complete the core drilling. TMG, in the absence
of the plumber, became responsible for the protection of the exposed secretary
who worked in same work area. It was responsible for securing the concrete core
and assuring the secretary’s work area was safe from the overhead hazard. The
secretary’s desk was located directly underneath the core drilling (Exh. C-2). The TMG employee, without first-hand experience,
made the decision to work from the adjacent office, stand on top of a 6-foot
ladder, and to use a bucket to catch a 29-pound concrete core. He was in charge of the core drilling and supervised the work.
He knew the process was “unsafe” (Tr. 50). He decided not to place a barricade
although there was no clear view of the secretary’s desk.
The Act’s “focus of the compliance duty imposed on an
employer is the employer’s workplace, not any specific employees.” Summit
Contractors, Inc., 23 BNA OSHC 1196, 1205 (No. 05-0839, 2010). Once an
employer is deemed responsible for complying with OSHA regulations, it is
obligated to protect employees who work in its workplace. The secretary was in
TMG’s workplace and exposed to a hazard created or controlled by TMG. It was a
common worksite. The secretary’s employer, the medical center, contracted TMG
to perform the drainage work. TMG, as an employer, owed a duty not only to its
own employees but to other employees at the same worksite when it created
and/or controlled the cited conditions. A construction employer, TMG has a duty
to protect the place of employment including other employees who work at the
place of employment, so long as the employer also has employees at the place of
employment.
TMG, as the creating and controlling employer, was
responsible to provide the medical center secretary a safe workplace during the
core drilling.
Failure
to Comply
There is no dispute that there were no barricades
placed around the secretary’s work area, deterring entry into the danger zone
during the core drilling (Tr. 52). Section 1926.501(c)(3) requires in this case
a hard hat and a barricade. If the secretary was allowed to work at her
desk (zone of danger) during the core drilling, a hard hat was required. If she
did need to work at the desk, a barricade deterring access to the desk area was
required by the standard. A barricade would prevent her exposure to a falling
object.
There is no showing that TMG offered a hard hat or
installed a barricade. Its argument that the use of a hard hat and barricade
were impermissible and inappropriate is rejected. The standard requires them as the means of abatement. There is no
showing that TMG advised the medical center or the Director about the need to
keep the secretary away from the desk or made a request for a barricade or a
hard hat. There is no showing the medical center objected to the abatement. The
Director testified that a rope (barricade) could be placed around the
secretary’s desk without interfering with access to her office (Tr. 237).
Although no barricade was installed, TMG argues that
the secretary was asked to leave her desk by its employee in charge of the core
drilling. The TMG employee testified that he repeatedly told the secretary to
leave her area (Tr. 79). The secretary denied receiving any instructions to
leave (Tr. 130).
Having
considered the witnesses’ demeanor and responsiveness, the secretary’s denial
is given weight as more credible. Her denial is corroborated to an extent by
the Director’s testimony (Tr. 231-232). The Director did not hear her secretary
given an instruction to leave the desk although the door was open between her
office and the secretary’s work area (Tr. 232-233, 248). She could not see her secretary,
but she could hear her at her desk (Tr. 230). “I could hear her out there” (Tr.
238). “I think she was there most of the time, but she gets up, she’s up and
down, she answers the phone, she goes out front. She may not have been just
sitting there the whole time, but she’s usually there because she answers my
phone” (Tr. 238). The Director testified that she allowed the secretary to
remain at her desk because the TMG employees were in her office and she did not
know the secretary was in the zone of danger (Tr. 234). “I had no idea that
[the secretary] might be exposed to any dangerous conditions that day” (Tr.
234). TMG’s earlier e-mail to the medical center only described the work as
“noisy” (Exh. C-9).
Also, the circumstances support the secretary’s
testimony. It is hard to imagine a reason why the secretary would remain at her
desk if she knew TMG’s work was being performed directly overhead and she was
asked to leave the area. The TMG employee, however, had a reason to misstate
what transpired because of the injury to the secretary. Also, the employee
acknowledges the secretary repeatedly returned to her desk despite his
instruction. This shows the inadequacy of an instruction and increases his
awareness that the secretary would be at her desk during the core drilling (Tr.
55). Even knowing she had repeatedly returned to her desk, the Director was not
asked by the TMG employee to keep her away (Tr. 234, 250). Regardless, the
standard requires a barricade, not an alleged instruction.
TMG’s argument that the standard did not apply because
the falling object from the core drilling was intentional and not accidental is
rejected. The standard does not distinguish between an intentional and an
accidental falling object. It applies to any falling object.
The
terms of § 1925.501(c)(3) were violated.
Employee
Exposure
The secretary was exposed to the hazard of a falling
concrete core. The location of the core drilling was directly above the
secretary’s desk (Exh. C-2; Tr. 45-46). Her desk was
in the zone of danger of a falling object. On November 15, 2011, the secretary,
sitting at her desk, was struck on the head from the falling concrete core. The
core which struck her weighed approximately 29 pounds and fell approximately 13
feet (Tr. 97, 101).
TMG’s
Knowledge
As the last element of the Secretary’s prima facia case,
TMG, through its employee, knew or should have known with an exercise of
reasonable diligence of the violative condition. Phoenix Roofing, Inc.,
17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995) aff’d without published
opinion, 79 F.3d 1146 (5th Cir. 1996). The TMG employee directed the work
and as a supervisor, his knowledge is imputed to TMG. It is sufficient to
establish TMG’s knowledge. Pride Oil Well Serv., 15 BNA OSHC 1809, 1814
(No. 87-692, 1992).
The employee was assigned by the TMG project manager
the task of catching the concrete core and assuring the area was kept clear of
employees. TMG knew the core drilling procedure was unsafe (Tr. 50-51, 176).
Although the employee identified his job as laborer, he was placed in charge of
the work by TMG (Tr. 70, 176). On November 15, 2011, he was delegated
supervisory authority at least temporarily. In an e-mail to the hospital, the
employee was referred by TMG as “our superintendent” in the core drilling
process (Exh. C-9). The TMG project manager described
the employee as a field supervisor or superintendent who was in charge when he
was not present (Tr. 95, 189, 190). He expected the employee to “use his
judgment” and he had the authority to stop work if it was unsafe (Tr. 191). He
directed the work of the other TMG employee. The unsafe condition caused by the
core drilling was in plain view.
An employee who has been delegated authority over
other employees, even if only temporarily, is considered a supervisor for the
purposes of imputing knowledge to the employer. A.P. O’Horo,
14 BNA OSHC 2004, 2007 (No. 85-369, 1991) (laborer designated as working
foreman) Paul Betty, d/b/a Betty Brothers, 9 BNA OSHA 1379, 1382 (No.
76-4271, 1981) (plasterer functioned as a supervisor).
The employee’s knowledge of the core drilling
operation and the failure to place a barricade is imputed to TMG.
Unpreventable
Employee Misconduct
TMG argues that if a violation is found, it was due to
its employee’s misconduct. TMG asserts unpreventable employee misconduct if the
employee failed to instruct the secretary to leave the area. The employee knew
that he was to instruct workers to leave the area while the work was performed
(Tr. 176).
In order to establish the affirmative defense of unpreventable
employee misconduct, TMG must show that it has (1) established work rules
designed to prevent the violation, (2) adequately communicated these rules to
its employees, (3) taken steps to discover violations, and (4) effectively
enforced the rules when violations are discovered. American Sterilizer Co.,
18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).
There is no showing TMG had a work rule on core
drilling or placing barricades. The employee had not received any training by
TMG on the core drilling process. He had only observed the plumbing contractor
perform the job on the previous day (Tr. 79). He had never performed the job
himself. There is no evidence the prior core drilling involved employees
exposed to a hazard. Also, despite the project manager’s trips to the project
once or twice a day for about an hour, there is no showing that he monitored
the employees to assure compliance with TMG’s safety procedures involving the
core drilling process. There is a lack of evidence of enforcing safety rules
through a disciplinary program.
TMG’s unpreventable employee misconduct defense is
rejected.
Serious
Classification
TMG’s violation of § 1926.501(c)(3) is classified as
serious. A serious violation under §17(k) of the Act, is where there is a
substantial probability of death or serious physical harm that could result
from the cited condition and the employer knew or should have known with the
exercise reasonable diligence of the presence of the violation.
There is no dispute that a concrete core, weighing 29
pounds and falling 13 feet, could cause serious injury. The secretary was
struck on the head, causing bleeding, and she needed emergency room treatment
(Tr. 228). The employee’s knowledge, as a supervisor regarding the failure to
place a barricade, is imputed to TMG. TMG has stipulated and the record
supports a finding that TMG’s violation § 1926.501(c)(3) was serious under the
Act (Tr. 5).
PENALTY
CONSIDERATION
The Review Commission is the final arbiter of
penalties in all contested cases. In determining an appropriate penalty, the
Commission considers the size of the employer’s business, history of previous
violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.
A penalty of $ 3,000.00 is reasonable for the
violation of § 1926.501(c)(3). One employee was exposed to a head injury from a
29-pound concrete core. The record supports and TMG stipulates that a penalty
of $ 3,000.00 was reasonable in this case (Tr. 5).
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of
fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules
of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that
Serious Citation No. 1:
1. Item 1, alleged serious violation
of § 1926.501(c)(3), is affirmed and a penalty of $3,000.00, is assessed.
SO ORDERED.
/s/
Date: August
9, 2012 KEN
S. WELSCH
Administrative Law Judge