United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

REMAND ORDER

Before:  ATTWOOD, Chairman; LAIHOW, Commissioner.

BY THE COMMISSION:

As to exposure, the judge found that Respondent had no employees exposed to the violative conditions and was not a controlling employer under OSHA’s Multi-Employer Citation Policy or the Commission’s multi-employer worksite doctrine.  See McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000) (“Under Commission precedent, an employer who . . . controls the cited hazard has a duty . . . to protect not only its own employees, but those of other employers engaged in the common undertaking.”) (citations omitted).  Regarding knowledge, the judge found that: (1) the crane operator was not a supervisor whose actual knowledge could be imputed to Respondent; (2) the operator did not, in any event, have actual knowledge of the violative conditions; and (3) even if Respondent were a controlling employer, the inadequacy of such an employer’s safety program cannot be used to establish constructive knowledge of violative conditions to which only another’s employer’s employees were exposed.

The Secretary petitioned for review, asserting that he “never alleged that [Respondent] was a controlling employer,” that his “actual position . . . was that [Respondent] was a ‘creating’ employer,” and that the judge therefore erred in “treat[ing] the case as if it involved a ‘controlling employer’ under OSHA’s multi-employer citation policy.”  See, e.g., Summit Contractors, Inc., 23 BNA OSHC 1196, 1205 (No. 05-0839, 2010) (“[T]he Commission has long held that the employer who creates a violative or hazardous condition is obligated to protect its own employees as well as employees of other contractors who are exposed to the hazard.”) (emphasis added) (citation omitted), aff’d, 442 F. App’x 570 (D.C. Cir. 2011) (unpublished).

For these reasons, we conclude that the judge erred in analyzing this case under a controlling employer framework rather than the Secretary’s stated theory for Respondent’s alleged liability.   Accordingly, we remand this case to the judge for consideration of whether the Secretary has proven that Respondent was a creating employer.  See, e.g., Smoot Constr., 21 BNA OSHC 1555, 1557 (No. 05-0652, 2006) (“[T]he contractor created the non-compliant trench.”); C. Abbonizio Contractors, Inc., 16 BNA OSHC 2125, 2127 (No. 91-2929, 1994) (“It was therefore the duty of Abbonizio, the employer of the workers who created the condition, to comply . . . .”). But cf. Lewis & Lambert Metal Contractors, Inc., 12 BNA OSHC 1026, 1029 (No. 80-5295-S, 1984) (employer asserting multi-employer worksite defense “did not create . . . the elevator shaft or stairway guardrail violations”).

SO ORDERED.

       /s/                                       

       Cynthia L. Attwood

       Chairman

       /s/                                       

       Amanda Wood Laihow

Dated:   January 10, 2023    Commissioner

Some personal identifiers have been redacted for privacy purposes.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

DECISION AND ORDER

Attorneys and Law firms

Jeremy B. Dailey, Cameron W. Ellis, Rachel L. Graeber, Attorneys, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Complainant.

J. Larry Stine, Sherifat Oluyemi, Attorneys, Wimberly Lawson Steckel Schneider & Stine, PC, Atlanta, GA, for Respondent.

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

II. BACKGROUND

On the first day, [redacted] hoisted  two of Superior’s employees on the personnel platform. (Tr. 104:18-24). On the second day, one or two of Superior’s employees were lifted. (Tr. 105:2-12). On the third day, March 21, 2019, Gorman loaded the personnel platform with equipment and three Superior employees. [redacted] testified at trial that due to the platform's location, he could not see it until it had been lifted about halfway up the communications tower. (Tr. 106:4-16; 156:1-16; Tr. 106-13-20; Jt. Stip. ¶10). [redacted] testified that at that point he decided it was safer to take the three workers to the top of the tower rather than lower them to the ground. (Tr. 106:21-24). Tragically, while attempting to tie off to the tower, one of Superior’s employees fell approximately 105 feet to his death. (Tr. 46:2-8).

At trial, when Starks was asked when he arrived at the accident scene arrived if it changed since the accident had happened, he testified that “Based on my knowledge and the questions that I asked, the position of where the basket was -- personnel basket was located and the crane is the position that they were doing the lifting and the lowering of the employees that were in the personnel basket.” (Tr. 23:5-12). However, Starks did not see the crane in the position that it had been at the time of the accident. (Tr. 71:12-21).

By the time Starks visited the worksite, [redacted] credibly testified that the crane had already been placed into “the safed-up position,” which is the normal end-of-day position, meaning it had been “boomed-in” and the basket was sitting directly in front of the operator’s cab. (See Ex. R-1; Tr. 103:14-104:3). [redacted] testified that when the crane is in “the safed-up position at the end of the job,” the crane “is all the way retracted. It's not a working configuration; it's just how the crane is parked so that if something did fail overnight, had a hydraulic issue or anything else, the crane would be safe.” (Tr. 102:18-19, 21-25). [redacted] testified that the “safed-up position” that Starks observed the crane is not where [redacted], as an experienced crane operator, “would lift the personnel basket from.” (Tr. 103:14-18). And [redacted] testified that during the lifts the basket was located in various places: “It would be by their trailer behind the tree line sometimes, it would be behind the shed sometimes, and sometimes behind the antennas.” (Tr. 101:20-22).

Section VI (B)(6) of ACrane’s written procedure for Crane Hoisted Personnel Platforms requires that “workers to be hoisted” must attend the pre-lift meeting. (Jt. Stip. ¶13). Earlier that day, Gorman, Superior’s foreman at the worksite, in his capacity as the lift director, held a lift meeting with [redacted]. (Tr. 112:20-113:1; see also (Jt. Stip. ¶¶11, 12). [redacted] did not know which Superior employees would be hoisted and had no knowledge of whether Gorman briefed Superior’s employees to be hoisted separately, although [redacted] did observe Gorman walking towards Superior’s crew after meeting with [redacted]. (Tr. 113:5-12).

III. ANALYSIS

The “Commission is responsible for carrying out adjudicatory functions” under the Act. CF&I, 499 U.S. at 144. Thus, “[t]he Commission’s function is to act as a neutral arbiter and determine whether the Secretary's citations should be enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam). Therefore, Congress vested the Commission with the “adjudicatory powers typically exercised by a court in the agency-review context.” CF&I, 499 U.S. at 151.

Alleged Violations

The Secretary alleges in amended Item 2 that on or about March 21, 2019, ACrane committed a serious violation of section 1926.1431(m)(2) of OSHA’s Cranes and Derricks in Construction standard when it did not ensure that “employees hoisted in a personnel basket attended the pre-lift meeting with the crane operator and competent person responsible for the communication tower work.” (Compl. Ex. A.) The cited standard mandates that the pre-lift meeting must be attended by “the equipment operator, signal person (if used for the lift), employees to be hoisted, and the person responsible for the task to be performed.” 29 C.F.R. § 1926.1431(m)(2).

(1) Whether Cited Standard Applied

OSHA’s Cranes and Derricks in Construction standard applies to “power-operated equipment, when used in construction, that can hoist, lower and horizontally move a suspended load.” 29 C.F.R. § 1926.1400(a). ACrane does not dispute that the equipment it used at the worksite is covered by the standard. Further, it admits that it provided the crane, operator, personnel basket and sling system at the worksite on March 21, 2022, and that the personnel basket was used to hoist workers. (Ex. J-3 ¶¶ 1-4, 10). Therefore, the Secretary has established the cited standard applied to the cited conditions.

(2) Whether Cited Standard Was Violated

ACrane stipulated that on March 21, 2019, [redacted] hoisted ACrane’s personnel basket at the worksite while three of Superior’s employees were inside the basket, even though the personnel basket was rated to carry no more than two persons. (Ex. J-3 ¶¶ 7-10; see also Tr. 245:8-11). Further, although [redacted], the equipment operator, attended a pre-lift meeting on the day of the accident, [redacted] could not identify anyone else who had attended and did not know whether the Lift Director separately briefed the workers to be hoisted. (Tr. 112:20-113:1; Tr. 113:5-12). As indicated supra, the pre-lift meeting must be attended by “the equipment operator, signal person (if used for the lift), employees to be hoisted, and the person responsible for the task to be performed.” Therefore, the Secretary has established that both instances of the cited standard were violated.

(3) Whether Employees were Exposed to Hazard

However, “the common-law element of control is the principal guidepost that should be followed.”  Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003). The Secretary offered no evidence addressing this common-law element of control to establish ACrane was the employer of the exposed workers at the site. Instead, the Secretary simply asserts since ACrane stipulated that on March 21, 2019, [redacted] hoisted the personnel basket with three Superior employees on it even though only two people were allowed in the personnel basket, these admissions establish “the exposure of personnel to the hazard” and that based upon these stipulations, “the only issue remaining for the Court in determining whether Respondent violated the OSHA standard is employer knowledge.” (Sec’y’s Br. 13; Ex. J-3 ¶¶ 7-10) (emphasis added). The court disagrees. Again, the Secretary bears the burden of showing that the cited respondent is the employer of the exposed workers at the site. Quinlan, 812 F.3d at 836. And the evidence shows the three workers lifted by [redacted] were not employees of ACrane but were employees of Superior. Therefore, the Secretary has failed to satisfy the third element by proving ACrane was the employer of the exposed workers.

As the Eleventh Circuit has noted, under OSHA's multi-employer citation policy, “[t]he type of control required is not control over ‘the manner and means by which the [work] product is accomplished,’ Darden, 503 U.S. at 323, but control over matters affecting the safety of the workers on the jobsite.” Fama, 2022 WL 2375708 at *4. This would include things like “the authority and ability to control the workers’ use of safety equipment and adherence to safety procedures.” Id.

Here, ACrane was one of multiple companies working at the worksite and there is no evidence in the record that it exercised control over any of the other companies’ employees or had the authority and ability to control the other companies’ employees use of safety equipment or adherence to safety procedures. [redacted]’s unrefuted testimony was that Gorman, Superior’s foreman, was the worksite lift supervisor, and Gorman was responsible for determining when lifts occurred and who would be hoisted in the personnel basket. (Tr. 107:11-13; 101:11-16). [redacted]’s testimony is corroborated by Starks, who also testified that “the lift director would have to be someone from Superior because they would know more about what had to go up and what position they needed to be in.” (Tr. 88:22-25). While [redacted] admitted he had the authority to refuse to hoist personnel or terminate a lift if a safety concern was identified, (Tr. 107:11-13; 117:2-7; 144:9-12; 229:7-11), there is no evidence this authority included the authority and ability to control the workers’ use of safety equipment or adherence to safety procedures.

The court concludes Gorman, not [redacted], as the worksite lift supervisor, had the authority and ability to control the workers’ use of safety equipment and adherence to safety procedures. Therefore, the court concludes the Secretary has failed to establish ACrane was a controlling employer. As indicated supra, the Secretary also failed to prove ACrane was the employer of the exposed workers at the worksite. Thus, the court concludes the Secretary has failed to satisfy the third element of his prima facie case.  

(4) Whether ACrane “Knowingly Disregarded” the Act's Requirements

To satisfy this fourth element, the Secretary can prove ACrane had knowledge of the violations in two different ways:

First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer.... An example of actual knowledge is where a supervisor directly sees a subordinate's misconduct.... An example of constructive knowledge is where the supervisor may not have directly seen the subordinate's misconduct, but he was in close enough proximity that he should have.... In the alternative, the Secretary can show knowledge based upon the employer's failure to implement an adequate safety program, with the rationale being that—in the absence of such a program—the misconduct was reasonably foreseeable.

Quinlan, 812 F.3d at 837 (quoting Comtran, 722 F.3d at 1307–08). For the reasons indicated infra, the court concludes [redacted] was not an ACrane Supervisor. But even if he was, the court credits his testimony that he was unaware of the violative actions because he did not witness the overloading of the personnel platform and only became aware of it mid-lift, i.e., after the violation had already occurred. Therefore, the Secretary has failed to show that an ACrane supervisor had actual knowledge of the violation.

As to constructive knowledge, the Secretary argues that [redacted]’s knowledge can be imputed to ACrane because [redacted] was the only ACrane employee at the worksite and he controlled ACrane’s crane operations. (Sec’y’s Br. 13-14). The hallmark of a supervisor is authority over other employees. Here, although a pre-lift document from March 21, 2019, was completed and signed by [redacted] as the “Job Site Supervisor,” (Tr. 26:23-27:8; Ex. R-6), [redacted]’s unrefuted testimony was that he signed to certify the “calculations” and “capacities.” (Tr. 146:8-10). In deciding whether an employee qualifies as a supervisor, “[i]t is the substance of the delegation of authority that is controlling, not the formal title of the employee having this authority.”' Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). And [redacted]’s unrefuted testimony was he had no supervisory authority over any other employees. (Tr. 107:11-13). [redacted]’s unrefuted testimony is supported by Starks testimony where Starks admitted that while Graham attended the opening conference, [redacted] did not, and that most of the time “opening conferences are with the manager or supervisor.” (Tr. 92: 9-18). There is no other evidence that [redacted] was the worksite supervisor and the court concludes the preponderance of evidence in the record shows he was not.

Finally, even if [redacted] was ACrane’s worksite supervisor and was aware of the overloading of the platform, a “supervisor’s ‘rogue conduct’ cannot be imputed to the employer in that situation. Rather, ‘employer knowledge must be established, not vicariously through the violator's knowledge, but by either the employer's actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].’” Comtran, 722 F.3d at 1316 (quoting W.G. Yates & Sons Constr. Co., Inc., 459 F.3d at 609 n. 8).

Here, the Secretary has not offered any evidence to show ACrane had actual knowledge of the overloading of the platform. And as to constructive knowledge of a controlling employer, “neither the Commission nor the Eleventh Circuit has ever relied on that theory to determine whether a controlling employer had constructive knowledge of violative conditions to which only another employer’s employees were exposed on a multi-employer worksite.” Summit, 2022 WL 1572848 at n. 13 (emphasis in original). “Moreover, doing so here would be concerning given that [ACrane] lacked a direct contractual relationship with [Superior] whose employees were exposed” to the hazard. Id. “While such evidence may be relevant to determining whether a controlling employer has exercised reasonable care in relation to its secondary safety role on a multi-employer worksite,” the court finds it “inappropriate to analyze the adequacy” of ACrane’s “own safety program as an independent basis for proving constructive knowledge.” Id. Therefore, the court concludes even if ACrane was a controlling employer, any inadequacies in its safety program cannot be used to establish it had constructive knowledge of violative conditions that only Superior’s employees were exposed to. Thus, the Secretary has also failed to satisfy the fourth element of his prima facie case. Accordingly,

IV. ORDER

IT IS HEREBY ORDERED THAT the citation is VACATED and no penalty is assessed.

SO ORDERED.

                                                /s/                                       

                                                JOHN B. GATTO, Judge

Dated: October 31, 2022

Atlanta, GA

1 The cited provision states that “[t]he number of employees occupying the personnel platform must not exceed the maximum number the platform was designed to hold or the number required to perform the work, whichever is less.”  29 C.F.R. § 1926.1431(f)(4).

2 The cited provision states that “[a] pre-lift meeting must be . . . [a]ttended by the equipment operator, signal person (if used for the lift), employees to be hoisted, and the person responsible for the task to be performed.”  29 C.F.R. § 1926.1431(m)(2).

3 “In order to establish a violation, the Secretary must demonstrate that (1) the standard applies, (2) the employer failed to comply with the terms of the standard, (3) employees had access to the cited condition, and (4) the employer knew, or, with the exercise of reasonable diligence, could have known of the violative condition.”  Conie Constr., Inc., 16 BNA OSHC 1870, 1871 (No. 92-0264, 1994), aff’d, 73 F.3d 382 (D.C. Cir. 1995).

4 The Secretary did not raise the exposing employer theory in his petition seeking review of the judge’s decision, presumably because the record is clear that only Superior employees were exposed to the alleged violative conditions.  Indeed, as the judge found, Respondent had no employees exposed to the violative conditions and thus could not have been an exposing employer under OSHA’s own policy.  OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy (Dec. 10, 1999) (exposing employer is one “whose own employees are exposed to the hazard”) (emphasis added).

5 For this reason, we question the judge’s assertion (made in a footnote in his decision) that, “[a]s to Item 1, the Secretary never . . . relied on OSHA’s multi-employer citation policy.”

6 The judge need not revisit the exposure element because the parties’ factual stipulations along with undisputed testimony at the hearing establishes that employees of Superior were exposed to the alleged violative conditions.  See Summit Contractors, 23 BNA OSHC at 1205 (creating employer “is obligated to protect its own employees as well as employees of other contractors who are exposed to the hazard”).

7 While the named respondent is “A Crane” Rental LLC, respondent’s notice of contest references “ACrane” Rental LLC. For ease of reference, the court will use “ACrane.”

8 The citation alleges violations of 29 C.F.R. §§ 1926.1431(f)(4) and 1926.1431(m)(2).

9 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order No. 1–2012, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety and Health, 77 Fed. Reg. 3912 (Jan. 25, 2012). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein. For simplicity, the court also refers to actions taken by the Assistant Secretary and the Area Directors as actions taken by the Secretary.

10 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

11 Vertical Vision Construction, LLC d/b/a Superior Broadband Towers was referred to by some witnesses as “Southern Broadband” and others as “Superior Broadband.” However, both parties referred to it as Superior Broadband in their briefs.

12 [redacted] identified Superior’s foreman as the lift director and testified his last name was Gorman. (Tr. 118:11-17).

13 Although Graham and [redacted] were on-site upon Stark’s arrival, Graham did not visit the site until the accident. (Tr. 15:16-25; Tr. 92:9-18; Ex. C-3).

14 “Compliance Safety and Health Officer”  means “a person authorized by the Occupational Safety and Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. § 1903.22(d).

15 While Starks did not know if the photograph was an accurate depiction of the accident scene because he did not take it and he was behind the building where the tower, crane, and the personnel basket were located, the Secretary offered no evidence to rebut this photographic evidence. Since this exhibit corroborates [redacted]’s testimony and the Secretary offered no evidence to rebut it or to corroborate Starks’ testimony, the court finds the preponderance of evidence shows [redacted] was unable to see the personnel platform until it cleared the trees about halfway up the tower.

16 Although the court also found Starks to be a credible witness, unlike [redacted], Starks did not have first-hand knowledge of the worksite at the time of the accident. Therefore, the court gives Starks’ testimony less weight.

17 As indicated supra, the Secretary delegated his authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health. The Assistant Secretary promulgated the Cranes and Derricks in Construction standard.

18 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). Here, the alleged violations occurred in Georgia, which is in the Eleventh Circuit and A Crane’s principal place of business is in Pennsylvania, which is in the Third Circuit. (See (Compl. ¶ III, Answer ¶ III). Compl. Ex. A; see also Jt. Prelim. Report and Disc. Plan ¶11.) Since both parties cited to the Eleventh Circuit in their post-trial briefs, the court applies the precedent of the Eleventh Circuit in deciding the case where it is highly probable that the case will be appealed.

19 The citation, pleadings, and Pretrial Order were amended by consent of the parties at trial to reflect the correct date for both Items 1 and 2 is March 21, 2019. (Tr. 52:7-23).

20 A “serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k).

21 The Act defines an employer as “a person engaged in a business affecting commerce who has employees,” 29 U.S.C. § 652(5).

22 As to Item 1, the Secretary never mentioned or relied on OSHA’s multi-employer citation policy at trial or in his post-trial brief (the first mention of this policy was on page 19 of the Secretary’s brief related to Item 2).