OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC Docket No. 19-1736
SKYLINE RESTORATION, INC.,
Respondent.

·Mr. Zhao-Hong Huang—the OSHA compliance safety and health officer (CO) who conducted OSHA’s inspection and investigation.

·Ms. Janaina Siguencia—a former special investigator with the New York City Department of Investigations (DOI), who had provided Spanish-English translation services during investigative interviews of a Jaen employee (Jorge Aucanshala) and a Skyline employee (Jose Sanchez).

·Mr. Julio Rueda—Skyline’s project manager.

·Did Skyline have the status of “controlling employer” over the multi-employer construction worksite?

·Was the evidence preponderant that the subcontractor had not complied with the cited standards?

·Was the evidence preponderant that Skyline failed to take reasonable measures to prevent, or to detect and abate, the subcontractor’s proven failures to comply with cited standards, so that Skyline was liable for those violations as the controlling employer?

·Did the Secretary prove by a preponderance of the evidence that Skyline is responsible for the HCS violations as a “creating employer”?

1.Skyline Restoration, Inc. (Skyline) is a New York corporation that maintains its offices in Long Island City, New York. (Answer ¶ 2). Skyline is a general contractor that specializes in exterior façade restoration, such as masonry, waterproofing and roofing work. (T. 25556). Skyline has approximately 40 to 50 employees. (T. 283-84, 328; Ex. J-11).

2.Skyline’s construction projects mostly arise from general contracts that it makes with building owners and building management companies. (T. 257).

3.Skyline’s employees do not perform any trade labor construction work in the performance of its general contracts, and none of its employees are employed as skilled labor. Skyline’s corporate model is to subcontract the entire scope of work specified in its general contracts. (T. 257-58, 303, 364; Ex. J-11).

4.After making a general contract, Skyline assigns an employee to serve as the “project manager” and assigns other employees, who are subordinate to the project manager, to serve as “project supervisors” (also referred to as “project superintendents” or “supers”) to administer the project. (T. 256-58, 272-75, 28384, 303-04, 353; Ex. J-11).

5.In March 2019, Skyline made a general contract to perform certain masonry and roofing repair on and around the rooftop water tower on a 12-story building in Brooklyn, New York (worksite) for a contract sum of $4,400. (T. 10-11, 40-41; Ex. J-14). The rooftop was about 130 feet above ground level. (T. 124; Ex. J-14, p. 2).

6.One of the water tower’s four brick-veneer supporting columns (also referred to as “piers”) was the focus of the repair work. The general contract specified the repairs as follows (Ex. J-14):

·Remove and replace 20 square feet of the column’s brick façade (representing $1,200 of the contract sum)

·Remove and repoint another 20 square feet of brick mortar joints (representing $200 of the contract sum)

·Install waterproofing membrane at steel penetrations into the column and the water tank’s drain valve (representing $1,800 of the contract sum)

·Caulk utility boxes anchored to the column (representing $200 of the contract sum)

·Waterproof air conditioner tubing (representing $1,000 of the contract sum)

7.On April 1,3 Skyline subcontracted with Jaen Restoration Corp. (Jaen) for Jaen to perform the entire scope of work specified in its general contract for a subcontract sum of $1,800. (Ex. R-3 at 13).

8.Jaen does not employ any supervisory employees. The only individual at Jaen with managerial or supervisory authority is Jaen’s owner and sole officer. Jaen’s owner is married to Skyline’s vice president. (T. 14-15, 106-07, 396-97).

9.Skyline was familiar with Jaen because beginning in 2016 or 2017 Jaen had been a subcontractor for Skyline on multiple prior projects that had involved façade restoration, masonry, and waterproofing work. (T. 260-61). By virtue of these prior subcontracts with Jaen, Skyline had learned, or reasonably should have learned, that Jaen does not have any employees who act in the role of foreman or supervisor at Jaen’s worksites. (T. 315).

10.Skyline expected that Jaen would complete the project in two days. (T. 104; Resp’t Br. 3).

11.Skyline expected that its supervisors would manage the Jaen employees and assign them the work on the project. (T. 107).

12.Skyline and Jaen executed a subcontractor agreement using Skyline’s “standard” subcontract form. (T. 264, 308, 313). The subcontract identified the worksite address and described the subcontract’s scope of work simply as “Masonry & roofing” and nothing else. Pertinent provisions of the subcontract included the following (bold typeface in original):

13.The subcontract included a “Subcontractor Training and Certification Rider” that included the following provisions:

14.The “fine schedule” referred to in the “Termination” provision quoted in the preceding paragraph specifies 26 infractions for which Skyline may impose a “fine” (also referred to in the document as a “monetary penalty”) on Jaen ranging from $100 to $25,000 depending on the infraction (e.g., $5,000 fine for “no or improper fall protection”). The fine schedule’s introductory paragraph states: “The below fines can and will be enforced by any and all [Skyline] Personnel and are not a substitute or in lieu of any additional fines, fees, or administrative charges by any governing agencies. The fine is the maximum charge issued for [Skyline] per person per infraction.” (Ex. R-3 at 16).

15.Skyline has an arrangement with a company called Andromeda Advantage, Inc., (Andromeda) for Andromeda to provide certain administrative services to Skyline. Skyline and Andromeda share office space in Long Island City, and the companies are affiliated, although the record does not disclose the nature of that affiliation except that it is not a parentsubsidiary relationship. (T. 326-27, 351-52; Skyline’s “Amended Disclosure of Corporate Parents, Subsidiaries, and Affiliates” dated Jan. 28, 2020). Besides providing Skyline certain administrative services, Andromeda has similar arrangements with other construction companies to provide certain administrative services. Some of those other companies are also affiliated with Andromeda, although there is no evidence of the nature of those affiliations. (T. 351-52).

16.The administrative services that Andromeda provides Skyline include general administrative, accounting, risk management, contract administration, and legal assistance. The administrative services that Andromeda provides Skyline also includes managing for Skyline a catalogue of subcontractors for Skyline to use in its projects. (T. 255, 293-94, 349). There are over 100 subcontractors in the catalogue of subcontractors that Andromeda maintains for Skyline, about 40 of which Skyline has subcontracted with multiple times. (T. 259-61, 294-95).

17.Before Jaen commenced work on the project here, Andromeda’s Senior Risk Manager (Patricia Perez) had confirmed that Jaen had not been previously cited by OSHA for workplace safety and health violations. She confirmed this by checking Jaen’s inspection history on OSHA’s public website. Perez also confirmed that the Jaen employees who had been identified to work on the project had completed all formal safety and health training that local authorities require. (T. 276-77, 293, 356-57, 365-66, 379-380). Some of that formal training had been provided by a training school called Andromeda Academy of Construction Trades, which is affiliated with Andromeda in some fashion, although no evidence was presented describing the nature of the affiliation. (T. 350).

18.Skyline assigned Jose Sanchez as a project superintendent/supervisor for the project. (T. 11; Stip. 4). Skyline also assigned another Skyline superintendent/supervisor, Mr. Angel Cajilima, to work on the project. (T. 11, 101).

19.Skyline assigned Julio Rueda to be the project manager for the project. As project manager, Rueda was responsible for overseeing the project superintendents Sanchez and Cajilima. (T. 11, 353).

20.The project manager Rueda did not communicate with anyone from Jaen over the course of the project. Rueda never saw Skyline’s subcontract with Jaen. (T. 417, 420-21).

21.The week before Jaen started work on the project, Skyline superintendent Sanchez went to the worksite to assess it. (T. 142, 425). He determined that fall protection would be needed for the Jaen employees working on the rooftop, and so in multiple telephone conversations with the other Skyline supervisor involved in the project, Angel Cajilima, Sanchez and Cajilima agreed that by April 8 (the day before the Jaen employees were to start work on the project), Cajilima would have anchors installed on the rooftop (for use as a component of a personal fall arrest system (PFAS)) and that Cajilima would also have a guardrail system installed on the rooftop. (T. 101, 139, 141-42, 235-36).

22.Sanchez’s effort to have certain fall protection equipment installed before Jaen was to start work on April 9 indicates that the Skyline supervisors expected that Skyline, not Jaen, would be responsible for providing and installing anchors and a compliant guardrail system, notwithstanding that the subcontract assigned those responsibilities to Jaen. There is no evidence that Skyline and Jaen had agreed that Skyline would charge Jaen for the installation and use of the fall protection equipment that Skyline intended to provide and install before Jaen started work.

23.All the areas specified for repair in the general contract were on and around the northwest column of the building’s rooftop water tower. The rooftop was flat, and its edges were unprotected. (T. 11, 49; Exs. J-2, J-3, J-9, J-12). The building’s penthouse balcony was the immediate next lower level from the rooftop and was about ten feet lower. The width of the balcony was not uniform for all sides of the building’s perimeter. (Ex. J-2).

24.The edges of the penthouse balcony were protected by a parapet wall that was topped by a railing that was of sufficient height and strength to protect workers from falling off, so no fall protection was necessary for work done from the balcony floor. (T. 171, 183-84; Exs. J-2, J-4, J-10).

25.The roof was not accessible to the Jaen employees from the interior of the building by elevator or staircase. Rather, the Jaen employees could access the rooftop only from the balcony. (T. 114, 183-84). To get to the roof, the employees climbed a fixed ladder that ran from the balcony floor to the rooftop. (T. 116, 147; Ex. J-12). The width of the balcony where the fixed ladder was located was less than four feet. (Ex. J10).4

26.The water tower on the building’s roof had a square shaped footprint. Four brick-clad columns formed the four corners of the square shape and supported an elevated platform on which the water tank was located. The elevated platform was about eight feet higher than the rooftop. Portions of the elevated platform extended over the balcony, beyond the rooftop’s unprotected edges. (Exs. J-2, J-3, J-9).

27.The west face of the column under repair (the northwest column) abutted the rooftop surface to form a right angle. (Exs. J-2, J-3, J-5, J-9). The part of the column’s brick façade to be repaired was on an inward face of the column, the foot of which similarly abutted the flat rooftop, and so the masonry work specified in the general contract could be done from a position on the rooftop surface. (T. 248-49; Exs. J-2, J-3, J-6, J-9).

28.To move from the balcony to the northwest column, workers would climb the fixed ladder, step onto the rooftop, and then walk about 15 to 20 feet to reach the column. (Exs. J-2, J-3, J-4. J-9). A worker either exiting from or mounting onto the fixed ladder at the rooftop would necessarily come within two to three feet of the roof’s unprotected edge in that location. (Exs. J-3, J-4, J-9).

29.Skyline provided the mortar that the Jaen employees were to use at the worksite. (T. 12; 384; Ex. J-16 at 3). The mortar was Portland Spec Mix Type N and Portland Spec Mix Type S. (T. 12). The mortar contained Portland cement, which is a hazardous chemical that can cause severe chemical burns to the skin when mixed with water or contacting perspiration. (T. 55, 71, 75; Exs. J-15 & J-16). The Jaen employees mixed the dry mortar with water on the balcony and then moved buckets of the mixed mortar to the rooftop. (T. 56-57, 386-87; Ex. J-9).

30.A hazard communication plan (HCP) that conformed with § 1910.1200(e)(i) would have explicitly identified the mortar containing Portland cement as being present at the worksite. Neither Skyline nor Jaen had developed, implemented, or provided at the worksite an HCP that conformed to the requirements of 29 C.F.R. § 1910.1200(e).5 (T. 57-58, 74, 77-78, 97, 312-13, 398-99).

31.Neither Skyline nor Jaen provided or had available to the Jaen employees at the worksite the mortar’s safety data sheet. (T. 12; Ex. J-16 at 3).

32.Skyline did not inform Jaen prior to the start of work that the mortar that Skyline would be providing to Jaen contained the hazardous chemical Portland cement. Skyline neither provided written notice of this as § 3.2.3 of the subcontract specified nor did Skyline provide Jaen such notice in any non-written form.

33.Skyline did not inform or train the Jaen employees prior to the start of work, or during their work, about the hazards of the mortar that Skyline was providing for the Jaen employees to use for masonry work. (T. 12; Ex. J-16 at 4).

34.There was no evidence that Jaen had provided the Jaen employees with any information or training on the hazards of the mortar that Skyline had introduced to the worksite. (e.g., T. 57-58, 398). There is no evidence that Skyline inquired to determine whether Jaen had provided information or training to Jaen’s employees on the hazards of the mortar that Skyline was introducing to the worksite for the Jaen employees to use.

35.The only evidence of training and information that the Jaen employees had received that would meet the requirements of OSHA’s hazard communication standard (HCS), 29 C.F.R. § 1910.1200(h), was training required by 29 C.F.R. § 1926.1153(i) that relates to respirable crystalline silica. (Exs. R-2 & R-3). (There is no evidence that respirable crystalline silica was known to be present at the worksite.)

36.On April 9, Skyline superintendent Sanchez picked up the two Jaen employees (Aucanshala and the decedent) and drove them to the worksite. (There is no evidence of the location(s) where Sanchez collected the two workers.).

37.Sanchez also picked up the bricks and several bags of dry mortar that the Jaen employees to use in doing the masonry work. (T. 12). Skyline had purchased the mortar, but there is no evidence whether Skyline had also purchased the bricks. (T. 284-85, 337-38).

38.Sanchez dropped the Jaen employees off at the building, and the Jaen employees unloaded the bricks and mortar from Sanchez’s vehicle onto the sidewalk. (T. 12). Sanchez did not go onto the rooftop on April 9 before the Jaen employees started working. Rather, Sanchez simply departed the area, and he did not return until the end of the workday. (T. 184-85, 241-42). There is no evidence that while the Jaen employees worked on the project on April 9 that Sanchez attended to any matters relating to the project.

39.Materials used at the worksite included bricks, mortar, and chemical waterproofing material. (T. 11-12, 146). The Jaen employees moved these materials from the street level to the balcony on April 9. (T. 56; Ex. J-7). The Jaen employees did some demolition work on the rooftop on April 9. (T. 342-44; Ex. J-17 at 3-4). There is no evidence that the Jaen employees moved bricks and mortar or other materials from the balcony to the rooftop on April 9. There is no direct evidence that the decedent worked on the rooftop on April 9, or that if he did work from the rooftop that he failed to use a compliant PFAS. There is no evidence addressing what type of fall protection, if any, was used for the demolition work done on the rooftop on April 9.

40.At the end of the first workday (April 9), Sanchez returned to the worksite to collect the Jaen employees and transport them from the worksite. (T. 105, 142). (There is no evidence of the location(s) to which Sanchez drove the Jaen employees.) But before departing, Sanchez went inside the building and up the roof to look at the work area. Upon doing so, he discovered that Skyline supervisor Cajilima had not installed the anchors or the guardrail system that Cajilima had previously agreed he would have installed before the Jaen employees started work on April 9. (T. 13, 105, 142, 235).

41.In an investigative interview conducted on the day of the fatal fall, Sanchez told the CO and other governmental investigators that while driving the Jaen employees from the worksite on April 9 (after he had discovered that no fall protection equipment had been installed as he had expected), he told them to be careful and to remember to “tie off” for the next day’s work. (T. 105, 143).

42.During a post-fatality internal investigation that Andromeda conducted in its support of Skyline, Sanchez said that as he was driving the Jaen employees from the worksite at the end of the workday on April 9, he instructed the decedent not to work on the rooftop on the next day of work (April 10). Sanchez said that he instructed the decedent to work from the balcony level (i) removing demolition debris from the day before, and (ii) assisting Aucanshala, who would be on the rooftop, in the hoisting of materials to the rooftop. (T. 342-44; Ex. J-17 at 3).

43.Sanchez instructed the decedent not to work on the rooftop on April 10 because Sanchez had determined that whatever fall protection equipment that would be available to the decedent at the worksite would be inadequate to provide the decedent with compliant fall protection on April 10.

44.Sanchez did not take any positive action to have anchors or a guardrail system installed on the rooftop before the Jaen employees returned to work on the project on April 10. (T. 235-36). Sanchez did not report the absence of that fall protection equipment to anyone at Skyline or Jaen.

45.Aucanshala and the decedent returned to the worksite on April 10. (There is no evidence addressing whether Sanchez again transported them or whether they returned to the worksite by some other means.)

46.Aucanshala worked on the rooftop on April 10, and he used some form of PFAS while doing so. (T. 12, 343-44). There is no evidence that the PFAS Aucanshala used did not conform to the requirements for a PFAS that are specified in 29 C.F.R. § 1926.502(d). (T. 165).

47.Sometime after the Jaen employees started work on April 10, the decedent fell to his death to the ground level courtyard. (T. 35-36, 116, 148, 211-12, 218-19, 248, 250, 299; Exs. J6, J9).

48.There was no guardrail system or safety net system installed on the rooftop at any time to protect the decedent from falling off the roof’s unprotected edges. (T. 13, 52-53, 127-29, 221-23). There were no anchors installed on the rooftop that would have enabled the decedent to use a compliant PFAS to protect him in any fall from the roof’s unprotected edges. (Findings of Fact ¶ 43).

49.Sanchez returned to the building soon after learning about the fatal fall. He went to the courtyard where the decedent had fallen, and he then went up to the rooftop. (T. 12-13, 138-39, 148, 184-85). While on the roof, Sanchez erected a rope over the roof’s unprotected edge between the fixed ladder and the water tower. Sanchez erected the rope in that location because he concluded that decedent had fallen over the roof’s edge in that area, and he intended the rope to indicate the presence of the unprotected edge. (T. 138-39; Exs. J-3, J-4, J-12).

50.Compliance Safety and Health Officer (CO) Huang of OSHA was assigned to investigate the fatal fall. (T. 35). When the CO arrived at the building on April 10, the police had control of the premises and investigators from the New York City Department of Investigations (DOI) were at the scene. (Tr. 35, 118). The police told the CO that the decedent had fallen into the building’s courtyard, and the building manager took the CO to view that location. The CO was positioned in that location in the courtyard when he took the photograph received in evidence as Exhibit J-5 looking upward toward the water tower. (T. 36, 123). The CO then went to the penthouse balcony and then onto the rooftop to inspect those areas along with the DOI investigators. (T. 36).

51.The CO observed opened bags of dry mortar on the balcony floor. (Ex. J-7). He also observed a fivegallon bucket of waterproofing material on the balcony floor at the foot of the fixed ladder. A rope was tied to the bucket’s handle. The rope’s other end was tied to the top of the fixed ladder. (T. 127, 145, 219-20; Exs. J-3, J-4, J-10).

52.On the rooftop, near the base of the water tower structure, there were buckets of wet mortar and a stack of approximately 50 to 60 bricks, along with some hand tools. (T. 57, 94-95, 112-14, 250; Ex. J-3, J-9). The bricks and mortar were about 10 to 15 feet from the fixed ladder. (Exs. J2, J-3, J-9).

53.Sometime before the fatal fall, the Jaen employees had moved the bricks and buckets of the wet mortar from the balcony to the rooftop. They did so by tying a rope to the handle of the bucket to be hoisted and using the rope to pull the loaded bucket up from the balcony to the rooftop. The hoisting was done from a position at the roof’s unprotected edge near the fixed ladder.

54.After the CO inspected the balcony and rooftop, he went to the lobby of the building where he met Skyline’s project manager, Mr. Rueda. (T. 37, 104, 424). The CO also met Mr. John Tsampas, who identified himself as the “principal” at Skyline. (T. 37-39). Tsampas informed the CO that Andromeda would act as Skyline’s safety consultant/representative for the OSHA inspection and investigation, and he asked that all investigatory communications be made to Andromeda. (T. 37). The CO honored that request. The two Andromeda employees with whom the CO communicated during his investigation were an in-house attorney for Andromeda (Mr. Daniel Wilenchik) and Andromeda’s Senior Risk Manager (Ms. Patricia Perez). (Both Wilenchik and Perez testified at the hearing in Skyline’s case-in-chief. [T. (T. 37, 78-79, 106, 255, 263, 315-16, 329-33].)

55.Andromeda also served as the identified representative of Jaen for the OSHA investigation. (T. 315-16, 329-31).

56.After departing the worksite on April 10, the CO went with two DOI investigators, Ross Hoffman and Janaina Siguencia, to NYPD Precinct 84 to interview Skyline superintendent Sanchez and Jaen employee Aucanshala. (T. 37-38, 129-30, 223). Sanchez and Aucanshala were interviewed separately. (T. 223). Ms. Siguencia was the Spanish-English interpreter for both interviews. (T. 131-32, 207-08, 226).

57.Jaen did not submit to Skyline the name of any “experienced and capable foreman” (or the name of any designated “foreman” at all) that Jaen intended to assign to the project for Skyline to approve, and Jaen further did not assign any employee to act as foreman for the project, even though § 14.2 of the subcontract required Jaen to do so. (T. 348; Ex. J-17, p. 3).

58.There is no evidence that either Aucanshala or the decedent had been designated as a foreman under § 14.2 of the subcontract, and thus there is no evidence that Jaen supervised or directed the work of the Jaen employees as § 4.1.1 of the subcontract required.

59.Skyline’s superintendent for the project, Jose Sanchez, was the sole onsite superintendent/supervisor, even though § 4.1.1 of the subcontract required Jaen to “supervise and direct” Jaen’s work. (Tr. 100-01, 241-42). The only evidence of any active supervision of the Jaen employees is the supervision and instructions provided by Skyline’s supervisor Jose Sanchez.

60.No provisions of the subcontract expressly empower Skyline to stop the work of Jaen employees for safety violations, or to remove the offending employee or the subcontractor itself from the worksite, but Skyline regarded itself to possess such authority. (T. 278, 348-49).

61.Section 14.3 of the subcontract requires Jaen to comply with the provisions Skyline’s health and safety program (HASP), and Skyline’s practice is to include its HASP in a binder that it provides for each worksite. Skyline did not provide such a binder at the worksite, and there is no evidence that Skyline otherwise provided Jaen with a copy of Skyline’s HASP. (T. 74, 7778, 310-13).

62.There is no evidence that Skyline assessed any fines or monetary penalties against Jaen arising out of the performance of the subcontract.

63.There is no evidence that Jaen requested that Skyline provide Jaen with any equipment for Jaen’s performance of the subcontract, which under § 3.1.3 of the subcontract would be made “available to [Jaen] only at [Skyline’s] discretion and on mutually satisfactory terms.”

64.There is no documentary evidence that Skyline made any record of the bricks and mortar that it provided to Jaen or that Skyline made any claim for the cost of those materials to Jaen for performance of the subcontract as contemplated by § 3.3.2 of the subcontract. (T. 333-38).

65.There is no evidence that Skyline gave Jaen prior written notice of the chemical composition of the mortar that Skyline intended to supply to the Jaen workers to use in performing the subcontract work “in sufficient detail and time to permit [Jaen's] compliance with” Jaen’s duty to notify its employees and otherwise comply with the HCS as § 3.2.3 of the subcontract provided.

66.On the same day that OSHA issued the Citation and Notification of Penalty to Skyline, OSHA issued a separate Citation and Notification of Penalty to Jaen that cited Jaen for violating the same standards for which OSHA was citing Skyline.6 Jaen resolved that citation by entering into a formal settlement agreement which had the effect of affirming all seven citation items. (T. 79).7

67.On August 17, 2017, OSHA had previously issued a citation to Skyline that had alleged a violation of § 1910.1200(e)(1). (Ex. C-2). That 2017 Citation was resolved through a formal settlement agreement which became a final order of the Commission on April 23, 2018, and which affirmed the violation with a classification of “other than serious.” (T. 14, 83-84; Exs. C-2, C-5). The formal settlement agreement amended the original citation’s description of the alleged violation to read as follows: "Subcontractor employers did not implement a written hazard communication program for employees required to perform demolition of masonry concrete structures that contain silica and work with masonry chemicals that contain silica, including but not limited to Sika Quick 1000 hardening mortar, Sika YOH vertical and overhead repair mortar and Sika Armatec Bonding Agent." (Ex. C-5 at 3).

ØThe subcontract required Jaen to “assign an experienced and capable foreman, approved by [Skyline’s] project management.” (Ex. R-3, ¶ 14.2). Jaen did not assign any foreman to the project because Jaen does not employ any individuals as “foremen.” And because Jaen does not employ any individuals as foremen, Jaen did not submit to Skyline’s project manager for prior approval the name of a foreman for the project, as the subcontract required.

ØThe subcontract required Jaen to “supervise and direct the [Jaen’s] Work” (Ex. R-3 § 4.1.1), but Jaen does not employ any individuals as “supervisors,” and so Jaen had no supervisors to assign to the project. The only supervisor with whom the Jaen employees had contact was a Skyline supervisor (Sanchez).

ØOn the first day of Jaen’s work (April 9), Skyline supervisor Sanchez transported the two Jaen employees to and from the worksite—this could be viewed as incongruous with Jaen’s contractual responsibilities for supervising and directing its employees and for performing the general contract’s entire scope of work.

ØEven though the subcontract required Jaen to comply with all applicable safety requirements (Ex. R-3 § 4.3.1), Skyline did not hold Jaen responsible for providing all components of compliant fall protection systems. Rather, the Skyline superintendents communicated between themselves about Skyline providing and installing certain fall protection equipment for the Jaen employees, and they had planned for that equipment to be in place before the Jaen employees started work. (T. 101, 139, 235).

ØWhen a Skyline supervisor (Sanchez) discovered that another Skyline supervisor (Cajilima) had not provided and installed anchors and a compliant guardrail system on the rooftop as they had previously agreed between themselves, Sanchez took no action to require the Jaen employees to install the equipment, which under the terms of the subcontract was wholly Jaen’s responsibility.

ØThe subcontract made Jaen wholly responsible to “supervise and direct” the Jaen employees, but Skyline superintendent Sanchez said he assigned specific tasks to both Jaen employees. Andromeda’s Senior Risk Manager indicated this was Skyline’s common practice. (T. 107). Sanchez said he assigned Aucanshala to hoist materials onto the roof from a position on the rooftop, and that he instructed the decedent to assist Aucanshala as he did so from a position on the balcony. (Ex. J-17 at 3-4; T. 343-44). Sanchez also said that he instructed Aucanshala to “tie off,” likely expecting that Aucanshala would tie off to an I-beam that was part of the water tower structure rather than to an anchor that Sanchez had expected Cajilima to have installed before work began. (See T. 423). Cf. Part 1926, subpart M, Non-mandatory Appendix C § II(h)(1)(i) (indicating that under some circumstances a structural I-beam may provide an anchor point for a PFAS). (Ex. R-3 § 4.1.1; Ex. J-17 at 3-4; T. 343-44).

ØEven though the subcontract required Jaen to pay for all materials and equipment (Ex. R-3 § 4.1.6), Skyline provided materials (bricks and mortar) and certain equipment (chisels and trowels) used to perform the subcontract work. (Ex. J-16 at 3). There is no evidence that Skyline maintained a record of the materials that it provided to Jaen in preparation for back-charging Jaen, as the subcontract would permit, for the cost of these materials or for the use of this equipment. Nor is there any evidence that Jaen otherwise paid or intended to pay Skyline for the materials or the use of equipment that Skyline provided for the performance of the subcontract work. (T. 333-38).

ØSkyline did not provide written notice to Jaen regarding the hazardous chemical contained in the mortar mix that Skyline provided for the Jaen employees to use in performing the repairs, as Skyline was required to do by § 3.2.3 of the subcontract, so that Jaen could then comply with the requirements of the HCS.

ØThe general contract, which set forth the detailed scope of work, was not annexed to the subcontract as the terms of the subcontract stated that it was, and the subcontract’s description of the scope of work was limited to simply “Masonry & Roofing” at the project address. (Ex. R-3 at 1, 13).

ØSkyline’s Health and Safety Program (HASP) was not attached to the subcontract as the subcontract stated that it was (Ex. R-3 at 10-11), and there is no evidence that the HASP had been provided to Jaen prior to Jaen starting work on the subcontract. (T. 310-11). Providing Jaen with a copy of Skyline’s HASP would be necessary for Jaen to perform the subcontract’s requirement that Jaen comply with the HASP, as well as to be subject to certain penalties for failing to comply with it. (Ex. R-3 § 14.3).12

1.Citation 1, Item 1a, alleging a serious violation of 29 C.F.R. § 1910.1200(g)(1), is AFFIRMED, and Citation 1, Item 1b, alleging a serious violation of 29 C.F.R. § 1910.1200(h)(1), is AFFIRMED. A single penalty of $5,304 is assessed for the two grouped violations.

2.Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.20(b)(2), having not been proven, is VACATED.

3.Citation 1, Item 3a, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is AFFIRMED, and a penalty of $9,282 is assessed.

4.Citation 1, Item 3b, alleging a serious violation of 29 C.F.R. § 1926.501(b)(3), having not been proven, is VACATED.

5.Citation 1, Item 4, alleging a serious violation of 29 C.F.R. § 1926.502(d)(6)(i), having not been proven, is VACATED.

6.Citation 2, Item 1, alleging a serious and repeated violation of 29 C.F.R. § 1910.1200(e)(1), is AFFIRMED, and a penalty of $10,608 is assessed.

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·The sole owner and sole officer of Jaen is married to the vice-president of Skyline, and Jaen’s owner is the only individual at Jaen who possesses managerial or supervisory authority. (Findings of Fact ¶ 8).

·Skyline’s project manager (Rueda) had previously acted as the project manager for other projects involving Jaen at least a “few” times. (T. 418-22). Rueda had never heard the name of the only individual at Jaen who has supervisory authority—Jaen’s owner and sole officer. (T. 107). Rueda did not communicate with any Jaen supervisory personnel in connection with this subcontract, and he could not identify any Jaen supervisory personnel by name, although he claimed that he had had contact with Jaen supervisory personnel in connection with Jaen’s work on previous Skyline projects. (T. 419-22).

·Prior to this project, Skyline had subcontracted work on its projects to Jaen on multiple subcontracts (Finding of Fact ¶ 9; T. 260-61, 390-91, 417-19), presumably utilizing the same standard subcontract form that Skyline used for this project (T. 264, 308, 313), which requires the subcontractor (Jaen) to assign an experienced foreman to be approved by Skyline. Skyline subcontracted with Jaen multiple times even though Jaen’s performance of those prior subcontracts likely would have revealed to Skyline that Jaen does not employ any supervisory foremen, and thus that Jaen would not comply with the provision requiring Jaen to “assign an experienced and capable foreman, approved by [Skyline’s] project management.”

·Skyline supervisors sometimes assign the employees of its subcontractors, including Jaen, to work on different Skyline projects, depending on Skyline’s requirements and needs. (T. 424-25).

·The subcontract sum ($1,800) appears potentially undervalued relative to the general contract sum ($4,400), considering that Jaen was responsible for performance of the entire scope of work, to include providing all materials, equipment, and supervision.

·Jaen identified Andromeda to be its representative over the course of OSHA’s inspection and investigation, even though Jaen is not one of those companies for which Andromeda has an arrangement to provide administrative services (as Andromeda provides to Skyline and to other contractors).

·Andromeda and Skyline are affiliated companies (Andromeda’s in-house attorney testified that he did not know the nature of the affiliation, although he confirmed that that the two companies share office space). The only Skyline employee to testify at the hearing was the project manager Rueda. The other two witnesses that Skyline presented were both employees of Andromeda (Andromeda’s in-house attorney, and its Senior Risk Manager).

·Andromeda identified the same individual (its Senior Risk Manager, Ms. Perez) to be the point of contact for OSHA officials in Andromeda’s dual representation of both Skyline and Jaen in the OSHA inspection and investigation. (T. 393-95). As the Senior Risk Manager for Andromeda, Ms. Perez regards herself to serve in that same capacity for all contractors to which Andromeda provides administrative services (which includes Skyline). (T. 399-400).

·After the separate citations were issued to Skyline and Jaen, two different in-house attorneys for Andromeda filed separate notices of contest on behalf of each. (See supra footnote 7, as to official notice of the filings in OSHRC Docket No. 19-1796).

·One of the decedent’s training credentials was from Andromeda Academy, which is a related company to Andromeda. (Ex. R-1 at 3).

·Mr. Aucanshala, the other Jaen employee working on the rooftop, was purported to have said during an investigative interview that was conducted at a police station on the day of the fatal fall that he had been employed by Skyline for eight years (but that he received his paycheck from Jaen, even though he does not know anybody from Jaen), that he reports on a daily basis to Skyline’s project manager (Rueda), and that both he and the decedent were assigned to Skyline’s “emergency repair unit,” which works on projects that usually take only a few days to complete. (The written memorandum of this interview [Ex. C-4 for identification], as well the testimony of the CO and Special Investigator Siguencia regarding their recollections of what Aucanshala had said in the interview, were not admitted in evidence on hearsay grounds as described infra at footnote 15, except to the extent that Skyline was ruled to have “opened the door” to the CO’s hearsay testimony as to some of what Aucanshala had said in that interview [T. 191-92].)