Saiia Construction

Plain-English summary

Saiia Construction was installing concrete pipe in an excavation when OSHA investigated a worksite accident. The remaining citation alleged that an employee in the trench was exposed to being struck by a concrete pipe as an excavator lifted it. The judge found that the hazard was recognized but that the Secretary did not prove Saiia knew, or reasonably could have known, that the employee was exposed outside the previously laid pipe. The general duty clause item was vacated, and the Secretary had withdrawn the alternative excavation item before the hearing. No penalty was assessed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) and 29 C.F.R. § 1926.651(e).
• Outcome: The general duty clause item and its proposed $7,000 penalty were vacated; the alternative excavation item was withdrawn.
• Key point: Recognizing a lifting hazard was not enough to establish a violation without proof that the employer knew or should have known the employee was exposed at the site.

Full text (OSHRC public release)

                                            United States of America
                 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                             1924 B uilding - R oom 2R90, 1 00 A labam a Stree t, S.W .
                                          Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 04-0709 (EZ)
Saiia Construction, LLC,
Respondent.

Appearances:

     Brian W . Dougherty, Esquire                                  Kathleen G. Hend erson, Esquire
        Office of the Solicitor                                        King & Ballow
        U. S. Department of Labor                                      Nashville, Tennessee
        Nashville, Tennessee                                               For Respondent
              For Com plainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                    DECISION AND ORDER

     Saiia Construction, LLC (Saiia) is engaged in construction and was installing concrete pipe

in an excavation in Birmingham, Alabama, on November 21, 2003. The Occupational Safety and
Health Administration (OSHA) conducted an investigation of the Respondent’s jobsite on
November 25, 2003. This investigation concerned working conditions relating to an accident at that
worksite on November 21, 2003. As a result of this investigation, the Respondent was issued a
citation. The Respondent timely filed a notice contesting the citation and proposed penalty. A
hearing was held, pursuant to EZ trial procedures, in Birmingham, Alabama, on September 30 and
October 1, 2004. Prior to the hearing, the Secretary withdrew her allegation of a violation of
29 C.F.R. § 1926.651(e). Remaining at issue is the alleged violation of Section 5(a)(1) of the Act
and the proposed penalty of $7,000.00. For the reasons that follow, the alleged violation of Section
5(a)(1) is vacated and no penalty is assessed.
 Citation No. 1, Item 1, issued on April 15, 2004, in pertinent part, alleges a violation of
Section 5(a)(1) of the Act as follows:

           The employer did not furnish employment and a place of employment which
   were free from recognized hazards that were causing or likely to cause death or
   serious physical harm to employees in that employees were exposed to the hazard of
   being struck by the load attached to the bucket of the Komatsu Hydraulic Excavator,
   PC300LC-6:

           At Overton Road - Southend - On or about 11/21/03, employees were
           exposed to the hazard of being struck by the 48"X8' concrete pipe
           attached to the bucket of the Komatsu Hydraulic Excavator,
           PC300LC-6. The concrete pipe was being lifted from the excavation.

          Among other methods, one feasible and acceptable method to correct this
   hazard is to ensure through training, that employees adhere to the instructions
   outlined in the Operations and Maintenance Manual for the Komatsu PC300LC-6,
   Section 7.2 and Section 7.6.

   The Secretary has the burden of proving, by a preponderance of evidence, a violation of

Section 5(a)(1) of the Act.

            To establish a violation of section 5(a)(1) of the Act, the Secretary must prove
   that an activity or condition in the workplace presented a hazard, that the employer
   or its industry recognized this hazard, that the hazard was likely to cause death or
   “serious physical harm,” and that a feasible and effective means of abatement existed
   by which the employer could eliminate or materially reduce the hazard. Kokosing
   Constr. Co., 17 BNA OSHC 1869, 1872, 1995-97 CCH OSHD ¶ 31,207, p. 43,724
   (No. 92-2596, 1996). As part of her burden to prove these elements, the Secretary
   must define the alleged recognized hazard in a manner that gives the employer fair
   notice of its obligations under the Act by specifying conditions or practices which are
   within the employer’s control. Inland Steel Co., 12 BNA OSHC 1968, 1970, 1986-
   87 CCH OSHD ¶ 27,647, p. 35,997 (No. 79-3286, 1986); Pelron Corp., 12 BNA
   OSHC 1833, 1835, 1986-87 CCH OSHD ¶ 27,605, p. 35,871 (No. 82-388, 1986).

    Beverly Enterprises, Inc., 19 BNA OSHC 1161, at 1168, 2000 CCH OSHD ¶ 32,227,

p. 48,958 (No. 91-3144 et al., 2000).

   To prove a violation of Section 5(a)(1), the Secretary must prove employee exposure and

employer knowledge. Under Section 5(a)(1), the Secretary must show knowledge of the hazard and
knowledge that the alleged hazardous condition exists at the jobsite. See Getty Oil Co. v. OSHRC,
530 F.2d 1143 (5th Cir. 1976); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257
(D.C. Cir. 1973).
Here, the Secretary proved knowledge of the hazard, that is, that the Respondent and its
industry recognized the hazard of an employee working in a trench, being struck by a concrete pipe,
while that pipe was being lifted from the trench. The Secretary, however, failed to prove that the
Respondent had the requisite knowledge that the hazardous condition existed at this jobsite.
Specifically, the evidence presented at the hearing did not prove that the Respondent knew or with
the exercise of reasonable diligence could have known of the presence of the violative conditions;
that is, that the Respondent’s employee was in the trench, exposed to the pipe being lifted, and not
inside the previously laid pipe. The Secretary, therefore, did not present sufficient evidence to prove
a violation of Section 5(a)(1) of the Act.
Excerpts of relevant transcript pages and paragraphs, including findings of fact and
conclusions of law (Tr. 559-564), are attached hereto in accordance with 29 C.F.R. § 2200.209(f).

                               FINDINGS OF FACT
                            AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Federal Rule of Civil Procedure 52(a).

                                          ORDER

   Based upon the foregoing decision, it is ORDERED:
   (1)     Citation No. 1, Item 1, which alleged a violation of 29 C.F.R. § 1926.651(e), was
           withdrawn prior to the hearing and no penalty is assessed ;
   (2)     Citation No. 1, Item 1, which in the alternative alleged a violation of Section 5(a)(1)
           of the Act, is vacated. No penalty is assessed.


                                                   /s/
                                                   STEPHEN J. SIMKO, JR.
                                                   Judge

Date: November 1, 2004