United States of America
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
Complainant, |
|
v.
|
|
TERRANCE
MCKITRRICK, d/b/a GREAT
WHITE CONSTRUCTION,
|
|
Respondent. |
OSHRC DOCKET
NO. 16-1719
Appearances:
Jennifer A. Casey, Esq.,
U.S. Department of Labor, Office of the Solicitor, Denver, Colorado,
For Complainant
Jock
B. West, Esq., West Law Firm, P.C., Billings, Montana,
For
Respondent
Before: Administrative Law Judge Peggy S.
Ball
Decision and Order
I.
Procedural
History
On April 13, 2016, Complainant conducted an inspection
of Respondent after Compliance Safety and Health Officers (CSHOs) James Messer
and Ryan Morton drove by Respondent’s jobsite, located at 304 East Lake Circle,
Billings, Montana, and observed four employees engaged in residential roofing
activity without the use of fall protection. (Tr. 31; Ex. 3 at 4). As a result of this inspection, Complainant issued a
single-item Citation and Notification of Penalty, alleging Respondent failed to
use adequate fall protection. Complainant proposed a penalty of $27,436 for the
Citation, which was issued on September 16, 2016. Respondent timely contested
the Citation.
Prior to the
current Citation, Respondent had been issued four other Citations for violating
the same standard, 29 C.F.R. § 1926.501(b)(13). (Tr.
113). One of the previous Citations was dismissed by Complainant for inadequate
service. Id. The other three Citations
were adjudicated and became final orders of the Occupational Safety and Health
Review Commission prior to the April 13, 2016 inspection. (Tr. 113−14).
Trial was
held on November 2, 2017, in Billings, Montana, and both parties submitted
post-trial briefs in lieu of closing on the record. As discussed below, the
Court finds Complainant proved Respondent violated 29 C.F.R. § 1926.501(b)(13), and that the citation was properly characterized as
“repeat” and “serious”. The Court also finds Respondent failed to meet its
burden of proving the elements of its unpreventable employee misconduct
affirmative defense. Therefore Citation
1, Item 1 is herein AFFIRMED.
II.
Jurisdiction
Respondent agreed that it is an “employer” subject to
the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act),
and that the Court has jurisdiction over this matter.[1]
Accordingly, the Court has jurisdiction over this proceeding pursuant to § 10(c)
of the Act.
III.
Factual
Background
Complainant conducted an inspection of Respondent’s
worksite after CSHOs Messer and Morton drove by the worksite and observed four workers
engaged in residential roofing activities without using fall protection. (Tr.
33). Upon seeing this, the CSHOs stopped their vehicle and videotaped the scene.
Id. The CSHOs noticed a work trailer
in front of the jobsite, which was labeled “Great White Construction.” (Tr. 34).
Because CSHO Morton had previously inspected Great White Construction worksites,
he called his OSHA Area Director, Arthur Hazen, to inform him of what they had observed. Id. AD Hazen directed the CSHOs to open
an inspection. (Tr. 35).
The CSHOs proceeded to the jobsite where they displayed
their credentials and asked to speak with the person in charge. Id. Drew Stevens, an employee of
Respondent, identified himself as the site foreman. Id. Mr. Stevens identified the other three employees as Tony Plant,
Joshua Joyce, and James Birkett. (Tr. 33−34). Mr. Stevens informed the
CSHOs
Respondent was under contract to re-roof the residential property, a job which
consisted of tearing off the old shingles, drying the roof in with an
underlayment, and installing new shingles. (Tr. 44). Respondent had already
completed the tear-off and dry-in portion of the project and was installing the
new shingles when the CSHOs arrived. Id.
Mr. Stevens testified he and the other employees had been working on the roof
without fall protection for approximately two hours that day. (Tr. 43−44,
51). The CSHOs measured the height of the roof to be eleven feet from the edge
to the ground. (Tr. 263; Ex. C-3, at 10). They also classified the roof as “steep”
according to a transparent pitch gauge measurement. (Tr. 69).[2]
Terrance McKittrick, the owner of Respondent, had been
onsite for 15−30 minutes the morning of the inspection. (Tr. 275). He
dropped off the equipment trailer, distributed fall protection equipment, and
instructed his employees on the day’s activities. (Tr. 182, 275, 277−78).
Mr. McKittrick testified he held safety meetings by the equipment trailer every
day before starting work, including the morning of the inspection. (Tr. 250,
332, 370, 418, 455). At these meetings, he instructed his crew to work safe and
wear fall protection. Id. Mr.
McKittrick was regularly present at jobsites when employees were working. (Tr.
267−68). If he was not working with them, he routinely stopped by the
sites to check on progress and monitor quality of work. (Tr. 275). According to
Respondent’s employees, before Mr. McKittrick left the jobsite on the day of
the inspection, he instructed them to wear fall protection. (Tr. 418). He did
not inspect fall protection equipment for defects, inspect the roof for
properly secured anchor points, or ensure his employees put on fall protection
equipment. (Tr. 278−80). However, the evidence shows it was likely that anchor
points were secured to the roof. (Tr. 269, 279, 334−35, 358−60; Ex.
C-9). Soon after Mr. McKittrick left, Mr. Stevens and the other three employees
accessed the roof and began working without fall protection. (Tr. 89,
189−90). Mr. Stevens testified he knew Mr. McKittrick would return at
some undefined point in time. (Tr. 343, 442). Mr. Stevens was the only
supervisor onsite, and as foreman, he was responsible for overseeing worker
safety. (Tr. 350).
Respondent provided training to its employees prior to
the April 13, 2016 inspection. Mr. Joyce, Mr. Plant, and Mr. Birkett all observed
a twenty-two minute training video which briefly
covered the topics of fall protection and ladder safety. (Tr. 475). Mr. Stevens
accompanied Mr. McKittrick to a half-day fall protection seminar, which covered
various OSHA standards, including fall protection. (Tr. 322). Respondent did
not have a written safety and health plan in place, nor did it have any written
work rules. (Tr. 242−43). Instead, Mr. McKittrick defined the company’s
safety program as the jobsite discussions he had with employees. (Tr. 243, 247).
McKittrick testified he does not discuss safety with every employee right off
the bat. (Tr. 248−50). According to his testimony, his practice is to
wait to see if an employee makes it through their first day; and if they do, he
will discuss safety on their second day. Id.
Although Respondent did not have a written safety
program or written work rules, it did have a written discipline plan, which
listed three levels of discipline for non-compliance with work rules,
including: (1) first offense equals a verbal warning, (2) second offense equals
one day leave from work without pay, and (3) third offense equals termination.
(Ex. C-11). The discipline plan was implemented in late 2015. (Tr. 253). Notwithstanding
the existence of such a plan, the only time Respondent had ever recorded enforcing
it was after this April 13, 2016 inspection, despite having received multiple
citations prior to the inspection. (Tr. 252, 344, 349−50; Ex. C-12). Notably,
after the April 13, 2016 inspection, Respondent observed Mr. Stevens working again
without fall protection, and did not follow through with the next level of
discipline from its plan. (Tr. 433). Respondent has never terminated an
employee for failing to use fall protection, nor has it ever docked the pay of
an employee who failed to use fall protection. (Tr. 252). In fact, Mr.
McKittrick told his employees if they did not wear fall protection, they would
have to pay the OSHA penalty themselves. (Tr. 181). He has also worked
alongside employees, without using fall protection himself, in the past. (Tr. 206;
Ex. C-7).
OSHA has a Regional Emphasis Program (REP) in place to
provide inspection authority to CSHOs if they observe fall hazards. (Ex. C-4).
In the REP, it lists data for fatal falls from 2013. Id. In 2013, there were 466 fatal falls where the height of the
fall was reported. Id. at 5. Of those
falls, one in four fatalities occurred at heights less than ten feet. Id.
IV.
Findings
and Conclusions
A.
Citation 1,
Item 1
Complainant alleged a serious-repeat violation of the
act as follows:
29 C.F.R. 1926.501(b)(13): Each employee(s) engaged in residential construction
activities 6 feet (1.8 m) or more above lower levels were not protected by
guardrail systems, safety net system.
a) Construction Site: On
April 13, 2016 and at time prior, employees were exposed to a fall of
approximately eleven feet to the concrete below while installing asphalt
shingles on an 8:12 pitch residential roof.
Great White Construction was
previously cited for a violation of this occupational safety and health
standard or its equivalent standard 29 C.F.R. 1926.501(b)(13),
which was contained in OSHA inspection number 1063604, citation number 01, item
number 001 and was affirmed as a final order on August 12, 2015, with respect
to a workplace located at Pa Hollow Trail, Billings, Montana 59106.
Citation
and Notification of Penalty at 6.
The cited standard provides:
Residential Construction.
Each employee engaged in residential construction activities 6 feet (1.8 m) or
more above lower levels shall be protected by guardrail systems, safety net
systems, or [a] personal fall arrest system unless another provision in
paragraph (b) of this section provides for an alternative fall protection
measure….
29 C.F.R. § 1926.501(b)(13).
i.
Respondent Violated 29
C.F.R. § 1926.501(b)(13)
To establish a prima
facie violation of section 5(a)(2) of the Act, Complainant must prove: (1) the standard applies to the cited
condition; (2) the terms of the standard were violated; (3) one or more of the
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. See Ormet
Corp., 14 BNA OSHC 2134, 2135 (No. 85-0531, 1991).
a.
The Standard Applies to the
Cited Condition and it was Violated.
Complainant must prove the standard applies to the
cited condition, and that Respondent violated its terms. See Ormet Corp. 14 BNA OSHC at 2135. The
evidence establishes 29 C.F.R. § 1926.501(b)(13)
applies to the cited condition. Respondent was working on the roof of a
residential construction site at a height of eleven feet above the ground. (Tr.
263; Ex. C-3, at 10). The cited standard requires fall protection at heights above
six feet on residential construction sites. 29 C.F.R. § 1926.501(b)(13). Because Mr. Stevens and Respondent’s three other
employees were engaged in residential construction activities more than six
feet above the ground without proper fall protection, the Court finds the
standard applies and was violated. (Tr. 263; Ex. C-3, at 10).
b.
Employees
Had Access to the Cited Condition.
Complainant must prove there was at
least one employee exposed to the cited condition. “Exposure to a violative
condition may be established either by showing actual exposure or that access
to the hazard was reasonably predictable.”
Phoenix Roofing, Inc., 17 BNA
OSHC 1076, 1078 (No. 90-2148, 1995) (“Reasonable predictability, in turn, may
be shown by evidence that employees while in the course of assigned work
duties, personal comfort activities and normal means of ingress/egress would
have access to the zone of danger.”). Respondent admitted its four employees
were working at heights above six feet without the use of fall protection, and
the evidence presented at trial shows the same. (Tr. 51; Ex. C-1, JS at
2−3). Thus, there is no question Respondent’s four employees were exposed
to a fall hazard. Additionally,
Respondent stipulated the exposed individuals were employees at the time of the
inspection. (JS at 2). As such, the
Court finds four of Respondent’s employees were exposed to the cited
condition.
c. Respondent Knew or with Reasonable Diligence Could Have Known of the
Existence of the Violative Condition.
Complainant must prove the employer knew, or with the
exercise of reasonable diligence could have known of the existence of the
violative condition. See Seibel Modern
Manufacturing & Welding Corp., 15 BNA OSHC 1218, 1221 (No. 88-821,
1991). “Employer knowledge is established by a showing of employer awareness of
the physical conditions constituting the violation. It need not be shown that
the employer understood or acknowledged that the physical conditions were
actually hazardous.” L&B Products
Corp., 18 BNA OSHC 1322, 1324 (No. 95-1722, 1998). Knowledge can be
established by showing Respondent had either actual or constructive knowledge
of the existence of the violative condition. See E. Smalis Painting Co., 22 BNA OSHC
1553, 1562 (No. 94-1979, 2009).
Respondent
was cited on four other occasions for violating the same standard. (Tr. 113).
After those Citations, Respondent took minimal steps to ensure its employees
were adequately protected. Respondent provided brief training in late 2015 and
implemented a disciplinary plan, which it only started to enforce after the
present inspection. (Tr. 246, 256). Respondent’s foreman was caught without
fall protection multiple times after the previous four OSHA inspections, and he
was among the employees working without fall protection at the April 13, 2016
inspection. (Tr. 43−44, 51, 349).
Respondent’s first Citation was in 2013. (Ex. C-7). As
a condition of settlement in that matter, Respondent was required to consult a safety
and health consultant and develop a safety and health management plan. Id. Respondent failed to follow those
steps. (Tr. 242). Respondent’s onsite supervisor testified it was his customary
practice not to wear fall protection on roofs with a pitch less than 8-12, and
that he left it up to the employees to make individual choices about whether
they were comfortable without fall protection. (Tr. 342, 343) Mr. McKittrick’s
practice was to stop by the worksites intermittently, and to verbally chastise
employees not wearing fall protection but take no further action. (Tr. 243, 432,
442). Respondent has received four Citations for violating the same standard
prior to the instant case, but has not adequately
addressed the hazard. The Court finds Respondent had actual knowledge of the
existence of the violative condition.
Alternatively, constructive knowledge may be
established by showing Respondent could have known of the existence of the
violative condition by exercising reasonable diligence. See Pride Oil Well Service, 15 BNA OSHC 1809, 1814 (No. 86-692,
1992). “In exercising reasonable diligence an employer is required to inspect
and perform tests to discover safety-related defects in material and
equipment.” Union Boiler Co., 11 BNA
OSHC 1241, 1245 (No. 79-232, 1983) (citing Prestressed
Systems Inc., BNA OSHC 1864 (No. 16147, 1981)).
Here, McKittrick, as owner of Respondent, could have
discovered his employees were not using fall protection by performing an
inspection of the jobsite. He had been at the site the morning of the
inspection, but he did not inspect the equipment, make sure employees were
roped up before he left, nor did he inspect the roof to ensure anchors were properly
installed. (Tr. 279). He testified to knowing the anchors were installed by his
foreman, but he acknowledged different employees handle anchors differently between
the various stages of roof construction. Id.
Mr. McKittrick admitted he could not be certain of how they were installed
at the time of the inspection. Id. If he performed an inspection of the jobsite
during roof installation, he would have found his employees working without
fall protection. (Tr. 279). Because Respondent failed to perform any
inspections of the jobsite, the Court finds it failed to exercise reasonable
diligence to discover the violative condition. As such, Respondent had
constructive knowledge of the existence of the violative condition.
In addition to the foregoing, knowledge may also be
established by imputing the actual or constructive knowledge of a supervisor. See Dover Elevator Co., 16 BNA OSHC
1281, 1286 (No. 91-862, 1993) (finding the actual or constructive knowledge of
a Respondent’s supervisory employee can be imputed to the employer).[3]
A supervisory employee, for the purpose of imputing
knowledge, is, “[a]n employee who has been delegated authority over other
employees, even if temporarily….” Id.
(citing Tampa Shipyards, Inc., 15 BNA
OSHC 2004, 2007 (No. 85-369, 1991)).
Mr. Stevens identified himself to the CSHOs as the
foreman in charge and Respondent stipulated as such. (Tr. 35; JS at 2).
Therefore, he is properly classified as a supervisory employee for the purpose of imputing knowledge. Because Mr. Stevens
was working on the roof while unprotected by any form of fall protection, and
because he was working alongside the other employees who failed to use fall
protection, he had actual knowledge of the condition. (JS at 2−3).
Therefore, Mr. Stevens’ actual knowledge of the violative condition is
imputable to Respondent.
Based on the foregoing evidence, the Court finds
Respondent either had actual or constructive knowledge of the existence of the
violative condition. Alternatively, the Court finds Mr. Stevens’ knowledge of
the violative condition is imputable to Respondent.
ii.
The
Violation was Serious
A violation is classified as serious under the Act if
“there is substantial probability that death or serious physical harm could
result.” 29 U.S.C. § 666(k). Commission precedent requires a finding that
“a serious injury is the likely result if an accident does occur” as a
condition precedent in affirming a serious violation. Mosser
Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation
omitted); see Omaha Paper Stock Co.,
304 F.3d 779, 784 (8th Cir. 2002).
Complainant does not need to show there was a substantial probability an
accident would occur, it need only show if an accident did occur, serious
physical harm could result. See id. Likewise, Complainant need only show that if a fall occurred, serious physical
injury or death could occur, not that
it would occur. See id at
1046.
Here,
Respondent’s employees were working on a steep roof at a height of eleven feet without
the use of fall protection. (Tr. 263; Ex. C-3, at 10). If any employee were to fall, he would have fallen
eleven feet, which would likely lead to serious injury or death. See The Austin Company, Inc., 2 BNA OSHC
1036, 1041 (No. 899, 1974) (holding although there was testimony showing
isolated instances where a twenty foot fall did not cause serious injury, a
fall from twelve feet is, “quite likely to result in serious physical injury”);
see also Welltech,
Inc., 12 BNA OSHC 1333, 1339 (No. 84-0919, 1985) (holding a fall from
twelve feet is likely to cause injury or death). In addition to the extensive
Commission case law classifying falls of this height as serious, Mr. Stevens
also acknowledged a fall from eleven feet could cause an injury ranging from a
“bruised tailbone to death.” (Tr. 354). The Court finds the violation is
properly classified as serious.
iii.
The
Violation was Repeated
For a violation to be classified as a repeat
violation, Complainant must prove that, at the time Respondent was given the
present Citation, there was a Commission final order against the “same employer
for a substantially similar violation.” Murton
Roofing, Inc., 23 BNA OSHC 1343, 1344 (No. 1924, 2010). Similarity of the
violation may be established by showing the prior and present violations were
failures to comply with the same standard. Id.
(citing Potlatch Corp., 7 BNA OSHC
1061 (No. 16183, 1979)). In other words, a violation is classified as repeat if
the “same employer was cited at least once before and
a final order was issued for a substantially similar violation.” Murton Roofing, BNA OSHC 1343 at 1344.
Here, Respondent had been issued four previous
Citations for violating 29 C.F.R. §1926.501(b)(13).
(Tr. 113). Three of those Citations became final orders of the Commission prior
to the present Citation. (Tr. 113−14). Respondent failed to provide any
evidence to rebut the allegation of substantial similarity between the previous
and current citations, or to distinguish them in any significant way. Therefore, the violation is properly
classified as repeat.
iv.
Unpreventable
Employee Misconduct Defense
To establish the affirmative defense of unpreventable
employee misconduct, Respondent is required to prove: (1) it has established
work rules designed to prevent the violation; (2) it has adequately
communicated those rules to its employees; (3) it has taken steps to discover
violations of its work rules; and (4) it has effectively enforced its work
rules when violations have been discovered in the past. Burford’s Tree, Inc., 22 BNA OSHC 1948, 1951 (No. 07-1899, 2010).
a.
Respondent
Had an Established Work Rule
A work rule is a rule which: (1) is adequate in
providing supervisory personnel a standard of how employees should act; and (2)
would prevent the type of accident it is designed to prevent. See Abbott Contractors, Inc., 16 BNA
OSHC 1251, 1256 (No. 91-3177, 1993) (finding respondent’s unpreventable
employee misconduct defense fails because its rules are so outdated and vague
as to provide no guidance to supervisors); see
also Westar Energy, 20 BNA OSHC 1736, 1743 (No. 03-0752, 2004) (holding respondent’s
work rules were adequate because both parties stipulated if the employees
complied with them, the accident would not have occurred). In other words, to
be sufficient a a work rule
must provide adequate guidance on how to follow OSHA standards. See id. Here, an accident did not occur.
However, if an accident had occurred, using some form of fall protection as provided
in 29 C.F.R. §1926.501(b)(13) would likely have prevented
serious injury. Even though Respondent’s work rule regarding the use of fall
protection was not recorded in writing, Mr. Stevens, Mr. Joyce, and Mr.
McKittrick all testified the work rule existed (Tr. 246, 256, 417−19).
Respondent’s work rule clearly indicated employees were to use fall protection
while working on any roof. Therefore, the rule provided adequate guidance of
how employees were supposed to act, and if the rule were followed, it would have
prevented injury had an accident occurred. The Court finds Respondent had an
established work rule.
b.
Respondent Did Not
Adequately Communicate its Work Rule
Adequate communication is established when employees
are trained to recognize the situations in which they should follow the rule;
and more importantly, how to comply with the rule. See S & E Contractors, Inc., 14 BNA OSHC 2150, 2153 (No.
89-3317, 1991) (finding Respondent’s work rule regarding fall protection was
not effectively communicated because the supervisor was working without fall
protection, and the other three employees did not object to him doing so); see also Betty Brothers, 9 BNA OSHC
1379, 1384 (No. 76-4271, 1981) (holding Respondent “must do more than issue
safety instructions or hold safety meetings” in order to adequately communicate
its work rules).
Respondent provided training to its employees by
showing them a twenty-two minute training video at
some point after their first day of work. (Tr. 475). It trained its supervisor,
Mr. Stevens, by having him attend a half-day training seminar, which covered
various OSHA regulations. (Tr. 322). Additionally, Mr. McKittrick, as owner of
Respondent, held daily safety meetings before the commencement of work where he
highlighted the requirement that employees wear fall protection. (Tr. 250, 332,
370, 418, 455). However, the evidence shows there were several instances where
the same employees were caught without fall protection, prior to and following
the April 13, 2016 inspection. (Tr. 344, 349−50, 433). On the day of the
inspection, all four of Respondent’s employees were working without fall
protection, and none of them objected. (JS at 3). Additionally, Mr. Stevens
knew Mr. McKittrick would customarily return to the jobsite at unpredictable
points in time. (Tr. 343, 442). However, the fact that four employees were
working on the roof in violation of Respondent’s work rule, knowing the
company’s owner would be returning at any moment, shows the importance of following
the work rule had not been clearly communicated or adequately enforced. (Tr.
343).
c.
Respondent Took
Steps to Discover Violations
In order to establish
the defense of unpreventable employee misconduct, Respondent must show it has
taken steps to discover violations of the rule in the past. “Although an
employer is not required to provide constant surveillance, it is expected to
take reasonable steps to monitor for unsafe conditions.” Westar Energy, 20 BNA OSHC at 1744 (quoting Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). Reasonable
steps analysis includes: (1) the amount of job-training received by supervisors;
(2) employee competency and experience; (3) safety records; (4) practicality of
supervision; and (5) the degree of dangerous and hazardous work. New York State Electric & Gas Corp.,
1993 WL 330019 (No. 91-2897), aff’d in
part, 19 BNA OSHC 1227 (No. 91-2897, 2000).
Mr. McKittrick was intermittently present at jobsites
when employees were working. (Tr. 267−68). If he was not working with
them, he routinely stopped by the sites to check on progress and monitor
quality of work. (Tr. 275). When he was present at various sites, he frequently
discovered employees working without fall protection. (Tr. 252, 344,
349−50). The Court finds Respondent has taken reasonable steps to
discover violations of its rule.
d.
Respondent Did Not Effectively
Enforce its Work Rule When Violations Were Discovered
Respondent must show it has effectively enforced its
rule when it has discovered violations prior to the instant citation. See Frank Lill
& Son, Inc., 362 F.3d 840, 845, 20 BNA OSHC 1673 (D.C. Cir. 2004). If
Respondent has discovered violations but not effectively disciplined the
employee(s) involved, it cannot come back in response to subsequent violations
and claim the misconduct was unpreventable. See
id.; see also Abbott Contractors, Inc.,
16 BNA OSHC 1251, 1256 (No. 91-3177, 1993) (finding Respondent did not
adequately enforce its work rules, because although it relied on management to
“disseminate and enforce rules during tool box meetings and on the job, it is
clear that supervisory personnel did not take those rules seriously”). Perfunctory
but unenforced rules are not adequate.
Here, Respondent discovered several violations both
before and after the April 13, 2016 inspection. (Tr. 252, 344, 349−50,
433). The only documented evidence showing Respondent disciplined non-compliant
employees came as a result of this inspection. (Tr.
344−45; Ex. C-12). Despite having three clear levels of discipline in its
discipline plan, those levels were not followed when violations were
discovered. (Ex. C-11); see Westar Energy,
20 BNA OSHC at 1746 (holding “an employer must have evidence of having actually
administered the discipline outlined in its policy and procedures,” and the
discipline administered must be consistent with the policy). Though Respondent
had suspended an employee for tardiness, it had never suspended or terminated
an employee for failing to use fall protection, despite its four previous fall
protection Citations. (Tr. 348−49). This is true even for Mr. Stevens,
who testified McKittrick had caught him without fall protection six to twelve times.
(Tr. 349). Yet he still was the supervisor in charge of safety at the site when
the inspection was conducted. The Court finds Respondent has not effectively
enforced its work rule. Therefore, Respondent’s unpreventable employee
misconduct defense must fail.
v.
Conclusion
Based on the foregoing, the Court finds Respondent
violated 29 C.F.R. § 1926.501(b)(13), and the violation
was serious and repeated. Additionally, the Court finds Respondent failed to
meet its burden in proving the defense of unpreventable employee misconduct.
Accordingly, Citation 1, Item 1 is AFFIRMED.
V.
Penalty
In determining the appropriate
penalty for affirmed violations, the Act requires the Commission to give due
consideration to four criteria: (1) the size of the employer’s
business; (2) the gravity of the violation; (3) the good faith of the employer;
and (4) the employer’s prior history of violations. 29
U.S.C.A. § 666(j). Gravity is the
primary consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the
likelihood of an actual injury. J.A.
Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission
and its judges conduct de novo penalty determinations and have full discretion
to assess penalties based on the facts of each case and the applicable
statutory criteria. E.g., Allied Structural Steel
Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir.
1995).
OSHA issued Respondent a base penalty of $12,471. (Ex. C-2 at
2). Complainant multiplied the penalty by a factor of five because of
Respondent’s previous violations. Respondent was given an additional 10%
increase in penalty because of its repeat history, but
was granted a 60% overall reduction because of its small size. Id. The resulting penalty proposed by Complainant
is $27,436.
Gravity of the violation is the
primary consideration in penalty assessment. J.A. Jones Constr. Co., 15
BNA OSHC at 2214. On the day of the April 13, 2016 inspection, four of
Respondent’s employees were exposed to a fall of eleven feet for approximately
two hours. (Tr. 43−44, 51, 263; Ex. C-3 at 10). Respondent took some
precautions to prevent injury. The evidence shows fall protection was available
onsite to the employees, and anchor points were likely installed on the roof.
(Tr. 262, 269, 279, 334−35, 358−60; Ex. C-9). Additionally,
Respondent had provided some training for its employees. (Tr. 322, 475). Notwithstanding
the foregoing, Complainant contends the likelihood of an actual injury was
classified as “greater” because: (1) the 8/12 pitch of the roof increased the
likelihood of a fall; and (2) the materials and equipment lying on the roof
created a tripping hazard. (Ex. C-2 at 4). He acknowledged the greater the
pitch of the roof, the more likely an actual injury is to occur. (Tr. 96). CSHO
Messer calculated the pitch to be 8/12, but Respondent contends the pitch was
6/12. (Tr. 263, 270).
The Court finds Complainant’s
assessment of the roof pitch to be excessive. Based on the photos and
testimony, the Court finds the roof pitch is closer to 6/12, as testified to by
Respondent and adjusts the probability of injury accordingly. In light of this and the other factors discussed above, the
Court finds a penalty of $22,000 is appropriate.
ORDER
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. Based
upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1 is AFFIRMED as a
serious repeat violation of 29 C.F.R. § 1926.501(b)(13),
and a penalty of $22,000 is ASSESSED.
SO ORDERED.
/s/
Judge
Peggy S. Ball
Occupational Safety and
Health Review Commission
Dated: September 19, 2018
Denver, Colorado
[1]. Joint Stipulation Statement at 1. Hereinafter, the Court will cite the parties’ joint stipulations as “JS”.
[2]. Complainant claims the pitch of the roof was 8/12 which means the roof has 8 inches of vertical rise for every 12 inches in lateral distance. (Tr. 263). Respondent claims the pitch of the roof was 6/12. (Tr. 270). The standard classifies any roof over a 4/12 pitch as steep. 29 C.F.R. § 1926.500.
[3]. The instant case is in the appealable jurisdiction of the Ninth Circuit. Both Commission and Ninth Circuit case law say a supervisor’s knowledge of his own misconduct may still be imputed to the employer. See Empire Roofing Co., 25 BNA OSHC 2221, 2224 (No. 13-1034, 2016); Deep South Crane and Rigging Co., 23 BNA OSHC 2099, 2102 (No. 09-0240, 2012). Ninth Circuit case law differs on this topic than other circuits, which have held that if the supervisor’s misconduct creates the condition, the supervisor’s knowledge of the condition cannot be imputed to the employer unless it is foreseeable to the employer that the supervisor would act in such a way. See ComTran Group, Inc. v. U.S. Dept. of Labor, 722 F.3d 1304, 1315–16 (11th Cir. 2013).