M. DeMatteo Construction Co.

Plain-English summary

OSHA found a lanyard with a broken latch, bent wire ropes, and a come-along with a defective latch at a multi-employer construction site. The judge vacated the fall-arrest item because the Secretary did not prove that M. DeMatteo controlled or used the lanyard. She found that the wire-rope bends were not shown to be defects requiring removal from service. Although the come-along was defective and accessible to company employees, the Secretary did not establish how long it had been present or that management knew or should have known about it. Both remaining contested items were vacated, and the parties' settlement of the other items was approved.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.502(d)(21); 29 C.F.R. § 1926.251(a)(1)
• Outcome: The two remaining contested equipment-inspection items were vacated, and the partial settlement of the other citation items was approved.
• Key point: Finding defective equipment at a multi-employer site does not establish a violation without proof tying it to the cited employer and showing actual or constructive knowledge.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. Docket No. 01-1749
M. DE MATTEO CONSTRUCTION
COMPANY,
Respondent.

APPEARANCES:

Natalia A. Baltizar, Esq. Richard D. Wayne, Esq..
Kevin S. Sullivan, Esq. Hinckley, Allan & Snyder, LLP
U.S. Department of Labor Boston MA
Boston, MA For the Respondent
For the Complainant

BEFORE: COVETTE ROONEY
Administrative Law Judge

                                DECISION AND ORDER
   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). This case arose following an OSHA inspection conducted on July
24 and 25, 2001, at a work site in Boston, Massachusetts. Following the inspection, the Secretary
issued M.. De Matteo Construction (“M. De Matteo”) a citation alleging violations of 13 different
standards. M. De Matteo filed a timely notice of contest, and a hearing was held on September 5,
2002. At the hearing, the parties settled all but two of the citation items. This partial settlement
agreement was reduced to writing and executed by the parties on October 17, 2002, and its terms are
approved and incorporated as part of this decision and order. The remaining contested citation items
are Citation 1, Item 2a, which alleges a serious violation of 29 C.F.R. § 1926.502(d)(21), and
Citation 1, Item 4a, which alleges a serious violation of 29 C.F.R. § 1926.251(a)(1). Both parties
have submitted post-hearing briefs with respect to these two items.
Jurisdiction
In its answer, M.. De Matteo admits that it is subject to the Act and to the jurisdiction of the
Commission. It also admits that it is an employer which handles goods and materials that have
crossed state lines, and I so find. I accordingly conclude that M. De Matteo is an employer within
the meaning of section 3(5) of the Act and that the Commission has jurisdiction over the parties and
the subject matter of this proceeding.
Background
The building under construction at the work site was a four-story structure measuring 100
feet wide by 300 feet long. Three companies were identified as general contractors for the job: M.
De Matteo, Massachusetts Electric Construction Company, and Fischbach & Moor. The Secretary
submitted no evidence relating to either the division of authority and control among these companies
or M. De Matteo’s relationship with any of the many on-site subcontractors. (Tr. 11, 106-108.)
The OSHA inspection was conducted by Compliance Officer (“CO”) James Holiday, as part
of the planned inspection program. During the inspection, CO Holiday discovered a lanyard with a
broken safety latch draped over a wooden box located on the second floor, a come-along, or winch,
with a broken spring-loaded safety latch inside a tool box on the top floor, and wire ropes that
appeared to have bends in them located on the deck of a crane on the second floor. There was no
evidence relating to which contractor used or controlled the wooden box on the second floor. An M.
De Matteo employee, however, reported that company employees had a practice of obtaining needed
gear from the tool box on the top floor, where the come-along had been found. (Tr. 12-17, 25-35,
Exhs. C-7-9). Based on these discoveries, the CO recommended the issuance of the two subject
citation items.
Citation 1, Item 2a
This item alleges a serious violation of 29 C.F.R. § 1926.502(d)(21), which provides that
“personal fall arrest systems shall be inspected prior to each use for wear, damage and other
deterioration, and defective components shall be removed from service.” The Secretary did not
submit evidence that M. De Matteo did not inspect its personal fall arrest systems prior to each use.
Rather, this item was based solely on the defective safety latch on the lanyard that CO Holiday found
in the wooden box on the second floor.
I find that the standard applies to the cited condition, in that employees at the site used
personal fall arrest systems during their work and a harness to such a system containing a defective
safety latch was discovered on the site. The Secretary’s evidence, however, did not persuade me that
M. De Matteo violated the terms of the standard, as there was no proof that either the wooden box
or the defective lanyard was controlled or used by M. De Matteo employees. On the contrary, M. De
Matteo required its employees to return their personal fall protection systems to their crew trailer at
the end of each shift, and there was unrebutted testimony that M. De Matteo did not in fact store
lanyards in the subject wooden box. There was also no evidence pertaining to what authority M. De
Matteo had, if any, in the area where the lanyard was found. Moreover, there were at least four other
employers on the site who used lanyards, and any one of them could have been responsible for the
lanyard or the wooden box. (Tr. 106-110).The Secretary has thus failed to establish her prima facie
case, and, consequently, this citation item is vacated.1
Citation 1, Item 4a
This item alleges a serious violation of 29 C.F.R. § 1926.251(a)(1), which provides that:
Rigging equipment for material handling shall be inspected prior to use on each shift
and as necessary during its use to ensure that it is safe. Defective rigging equipment
shall be removed from service.
CO Holiday recommended the issuance of this item based on the wire rope on the second
floor crane and the come-along with the defective latch on the top floor. (Tr. 24-25, 32). Similarly
to Item 2a, the Secretary did not submit evidence that M. De Matteo did not have a practice of
inspecting rigging equipment prior to use. Instead, she relied solely on the existence of the conditions
as the basis for this citation item.
As to the wire rope, I was not persuaded by the Secretary’s evidence that the slight bends
were a “defect” which would warrant removing the ropes from service. While the CO testified that
the ropes were defective because they had “kinked” areas that had been “crushed,” his photographs

    1
        To prove a 5(a)(2) violation, the Secretary has the burden of establishing that:
             (1) the standard applies, (2) the employer violated the terms of the
             standard, (3) Respondent’s employees had access to the violative
             condition, and (4) the employer had actual or constructive knowledge
             of the violative condition.
             Gary Concrete Prod., Inc., 15 BNA OSHC 1051, 1052 (No. 86-1087, 1991).

depict only a slight bend in some areas of the ropes and do not reveal any fractured or frayed wire
strands. Further, as Tim Toth, M. De Matteo’s safety manager, testified, the photographs of the wire
ropes do not depict a crushed rope, as the core was not visible. Rather, the photographs show bends
that occur during normal use and do not warrant removal from service. (Tr. 37, 51-52, 92-93, Exhs.
C-7-10). Notably, the CO did not explain how the “kinked” areas would have weakened the wire
ropes. Accordingly, I conclude that the standard does not apply to the wire ropes.
I find that the come-along, on the other hand, was defective because the safety latch did not
snap back into a closed position after being opened. This would have created a dangerous situation
if, when in use, the hook had slipped off its anchorage point. (Tr. 24-27, 55).2 The standard therefore
applies to the come-along. Further, the Secretary submitted evidence that M. De Matteo’s employees
used the box where the defective equipment was found, and this proof was not rebutted by the
company. (Tr. 28-30). I find, therefore, that the Secretary has made a nominal showing that, at the
very least, a piece of defective rigging equipment was located in an area where Respondent’s
employees had access to it. The Secretary has thus shown, arguably, that Respondent failed to
remove defective equipment from use and that employees had access to the cited hazard.
However, the Secretary failed to establish the knowledge element of her prima facie case.
Commission precedent is well settled that the test in this regard is whether the employer knew, or
with the exercise of reasonable diligence could have known, of the hazard. Beaver Plant Operations,
Inc., 18 BNA OSHC 1972, 1976 (No. 97-0152, 1999), citing Pride Oil Well Serv., 15 BNA OSHC
1809 (No. 87-692, 1992). Clearly, there is no proof of actual knowledge, as the CO obtained no
statements or admissions that any of M. De Matteo’s supervisory employees was aware that a
defective come-along was located on the tool box. There is also no proof of constructive knowledge,
because there was no evidence regarding how long the defective come-along had been in that
location prior to the OSHA inspection; for example, the come-along could have been taken out of

   2
      M. De Matteo argues that the come-along was not defective because the CO could not

identify an OSHA standard which requires that a come-along hook contain a safety latch. I am not
persuaded by this argument. The fact is that this come-along had a safety latch, which was defective
and created a hazard, as discussed, infra. Indeed, Toth agreed that the purpose of the safety latch was
to keep the load from coming undone, and admitted that if he had found this safety clip in use, he
would have removed it from service. (Tr. 73, 89-91, 111). M. De Matteo’s secondary argument, that
the Secretary did not establish that the come-along was rigging equipment, is similarly unpersuasive,
in light of the evidence relating to how the come-along was used. (Tr. 25-26)
service and placed on the tool box only minutes or even seconds before the CO arrived. Further, the
Secretary presented no evidence to support a finding of constructive knowledge based on any failure
of M. De Matteo to adequately supervise or inspect the work site. In view of the evidence, I cannot
find that M. De Matteo could have known of the alleged hazard with the exercise of reasonable
diligence. This citation item is therefore vacated.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
1. Citation 1, Item 2a, alleging a serious violation of 29 C.F.R. § 1926.502(d)(21),
is VACATED.
2. Citation 1, Item 4a, alleging a serious violation of 29 C.F.R. § 1926.251(a)(1), is
VACATED.
3. The Settlement Agreement dated October 17, 2002 is approved, and its terms are
incorporated in their entirety as part of this Order.

                                                         /s/
                                                         COVETTE ROONEY
                                                         JUDGE, OSHRC

Dated: December 20, 2002
Washington, D.C.