Hensel Phelps Construction Co., and its successors

Plain-English summary

An OSHA compliance officer photographed workers on the second floor of a hotel structure where only one top rail protected an edge nearly 10 feet above the ground. OSHA attributed one photographed worker to Hensel Phelps because the worker appeared to be a woman and Hensel Phelps had one female employee at the site. The judge found that inference speculative because the worker's face was not visible, the hard-hat color and task did not match the Hensel Phelps employee, and many subcontractors worked at the site. The Secretary did not prove that any Hensel Phelps employee was exposed to the cited edge. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: Fall-protection citation vacated.
• Key point: A citation cannot rest on speculation that an unidentified worker belongs to the cited employer.

Full text (OSHRC public release)

                                              United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                       1244 North Speer Boulevard, Room 250
                                           Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                               OSHRC DOCKET NO. 01-2028

HENSEL PHELPS CONSTRUCTION CO., and
its successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles, California

      For the Respondent:
               Robert R. Miller, Esq., Stettner, Miller and Cohn, PC, Denver, Colorado

Before: Administrative Law Judge: Benjamin R. Loye

                                          DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Hensel Phelps Construction Co., and its successors (Hensel Phelps), at all times
relevant to this action maintained a place of business at the Barona Indian Reservation, Lakeside,
California, where it was engaged in construction. Respondent admits it is an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.
On August 7-8, 2001 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Hensel Phelps’ work site on the Barona Indian Reservation. As a result of that
inspection, Hensel Phelps was issued a citation alleging violations of §1926.501(b)(1) of the Act
together with a proposed penalty. By filing a timely notice of contest Hensel Phelps brought this
proceeding before the Occupational Safety and Health Review Commission (Commission).
On May 7-8, 2002, a hearing was held in San Diego, California. On May 16, 2002, the
Secretary withdrew citation 1, item 1(b). The parties have submitted briefs on the remaining issue, i.e.,
citation 1, item 1(a), and this matter is ready for disposition.
Alleged Violations
 Citation 1, item 1(a) alleges:
Each employee on a walking/working surface (horizontal and vertical surface) with an
unprotected side or edge which is 6 feet (1.8 m) or more above a lower level was not protected
from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems:

    On the second level of the hotel structure, there was no fall protection along the south
    side as there was only one guardrail at 42-inches, exposing employees to the hazard of
    falling from an elevation of 8-feet to the ground and debris below.

Facts
On the afternoon of August 7, 2001, OSHA Compliance Officer (CO) Daniel Mooney visited
the Respondent’s work site at the Barona Indian Reservation (Tr. Vol. I, p.19). Mooney testified that,
from his car, which was in a parking lot next to a golf course, he saw and photographed workers on the
second story of a hotel structure. Mooney determined the second story floor was 9'8" above ground
level (Tr. Vol. I, pp. 61-64; C-18 through C-23). A single guardrail, approximately 42" high, had been
installed on the edge of the floor (Tr. Vol. I, pp. 61, 95). Mooney testified that, because it was late in
the day, and the work site was a large multi-contractor site, he would return the following day to
conduct his inspection (Tr. Vol. I, p. 72).
Mooney returned on August 8, 2001, at which time he held an opening conference with the
employers on the site (Tr. Vol. I, p. 75). Mooney did not observe any OSHA violations on August 8,
2001 (Tr. Vol. I, p. 77). Nonetheless, Mooney spoke with Hensel Phelps’ project superintendent, Tony
Fombon, and with the on-site foreman, Bruce Lambert, showing them his photographs from the
preceding day (Tr. Vol. I, pp. 76, 78-79). According to Mooney, Fombon and Lambert provided
Mooney with the names of Hensel Phelps’ employees on the site but were unable to identify any of the
employees pictured working on the hotel structure (Tr. Vol. I, pp. 78-79). Mooney testified that he
pointed out that one of the laborers pictured was a woman. Hensel Phelps had only one female
employee working on the site, Vicky Seidler, a field engineer. According to Mooney, they deduced,
therefore, that the pictured laborer was Ms. Seidler (Tr. Vol. I, pp. 66, 79, 93, 95; Vol. II, p. 51; Exh.
C-21, C-22).
At the hearing, Tony Fombon testified that, to his knowledge, neither he nor anyone else
identified the laborer in Complainant’s Exhs. C-21 and C-22 as Ms. Seidler (Tr. Vol. II, pp. 158, 164-
65). According to Fombon, he did not instruct, or have anyone else instruct Ms. Seidler to work on the
second floor of the hotel structure on August 7, 2001 (Tr. Vol. II, p. 160). Furthermore, Fombon
stated, field engineers wear red hats; the laborer pictured in Exhs. C-21 and C-22 is wearing a white

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hard hat (Tr. Vol. II, p. 159). Fombon noted that there were approximately 140 other subcontractor
employees on the site, many of whom did wear white hard hats (Tr. Vol II, pp. 159-60). Finally,
Fombon testified, it was unlikely that a field engineer would be performing manual labor such as
sweeping up (Tr. Vol. II, p. 169).
Mr. William Fritz, another Hensel Phelps superintendent, testified that he participated in the
August 8, 2001 OSHA inspection (Tr. Vol. II, p. 104). Mr. Fritz stated that he was unable to identify
any of the workers on the second floor for CO Mooney (Tr. Vol. II, p. 110). Mr. Fritz further stated
that on August 7 there would have been no work for Hensel Phelps employees on the second floor
because the concrete floor above had not yet been poured (Tr. Vol II, p. 111).
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show, by a
preponderance of the evidence, that (1) the cited standard applies, (2) there was a failure to comply
with the cited standard, (3) employees had access to the violative condition and (4) the cited employer
either knew or could have known of the condition with the exercise of reasonable diligence. See, e.g.,
Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-
1359, 1991). In this case, the Secretary has failed to show the third element, access.
In order to show employee exposure, the Secretary must prove that employees have been, are,
or will be in zones of danger during either their assigned working duties, their personal comfort
activities while on the job site, or their movement along normal routes of ingress to or egress from their
assigned workplaces. Carpenter Contracting Corp. 11 BNA OSHC 2027, 1984 CCH OSHD ¶29,950
(No. 81-838, 1984). Complainant introduced no evidence establishing that Hensel Phelps employees
had any assigned work activities, or any other reason to be on the second floor of the hotel structure on
August 7, 2001. Hensel Phelps’ superintendent Fritz testified that, to the contrary, there was no reason
for any Hensel Phelps employee to be on the second floor. Neither CO Mooney, nor any of Hensel
Phelps’ witnesses were able to identify workers photographed on the second floor as Hensel Phelps
employees. The sole basis for the citation in the above captioned action is Mooney’s inference that,
because Hensel Phelps had only one woman working on the site, Vicky Seidler, and because one of the
workers on the second floor was a woman, that woman must be Vicky Seidler. Said inference is not
logically sound. The face of the pictured employee is not shown. Both CO Mooney and Mr. Fombon
testified that there were a number of subcontractors on the site, any of whom could have employed
female laborers. That the pictured employee was not Vicky Seidler is supported by Fombon’s
testimony that Seidler would have been wearing a red hard hat, and would not have been doing broom

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work. Complainant’s identification of the worker in Exh. C-21 and C-22 as Vicky Seidler is pure
speculation, and does not establish the element of employee exposure by a preponderance of the
evidence. The sole citation is, therefore, vacated.

                                            ORDER

1. Citation 1, item 1, alleging violation of 29 CFR 1926.501(b)(1) is VACATED.

                                                           /s/
   
                                                     Benjamin R. Loye
                                                     Judge, OSHRC
   

Dated: July 25, 2002

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