Fastrack Erectors

Plain-English summary

Fastrack Erectors sought $13,091.40 in attorney fees and expenses after a steel-erection fall-protection citation was vacated. OSHA's compliance officer had observed and videotaped two employees working without fall protection on a roof about 30 feet above the ground and believed they came within three feet of the edge. The underlying decision found that the officer's distant ground-level view could have been distorted and that the Secretary did not prove employee exposure by a preponderance of the evidence. The fee decision nevertheless found that the observations and videotape gave OSHA a reasonable factual and legal basis to pursue the citation. Because the disputed exposure question turned on credibility and conflicting evidence, the Secretary's position was substantially justified and the application was denied.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.760(a)(1)
• Outcome: The application for $13,091.40 in attorney fees and expenses was denied.
• Key point: Losing a close, credibility-dependent exposure issue does not make OSHA's position unjustified when direct observations and video reasonably supported the citation.

Full text (OSHRC public release)

Fastrack Erectors, Docket No. 04-0780

Secretary of Labor,

Complainant

v.

OSHRC Docket No. 04-0780

Fastrack Erectors,

EAJA

Respondent.

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

DISMISSING EAJA APPLICATION

Fastrack Erectors seeks an award for fees and expenses in accordance with the Equal Access
to Justice Act (EAJA), 5 U.S.C. § 504, 29 C.F.R. § 2204.101, et seq ., which it incurred in its
defense against serious Citation No. 1, alleging a violation of 29 C.F.R. § 1926.760(a)(1), issued on
March 4, 2004. The alleged violation was vacated after hearing by Decision and Order dated
November 19, 2004. The decision became a final order of the Commission on December 30, 2004.
Fastrack’s application dated January 26, 2005, claims costs totaling $13,091.40 . For the reasons
discussed, Fastrack’s application is DENIED .

Background

In February 2004, Fastrack was engaged in steel erection activities for an addition to a bank
in Troy, Missouri. On February 25, 2004, Occupational Safety and Health Administration (OSHA)
Compliance Officer Larry Davidson observed two employees of Fastrack without fall protection
walking on steel beams at the roof level. He estimated that the employees were within 3 feet of the
edge. Davidson made his observations from across the street of the worksite. He did not see the
employees on the roof when he entered to inspect the worksite. Based on the inspection, OSHA
issued to Fastrack serious and “other” than serious citations on March 4, 2004. Fastrack timely
contested the citations.

Citation No. 1 alleged a serious violation of 29 C.F.R. § 1926.760(a)(1) for failing to protect
employees exposed to a fall hazard engaged in steel erection with fall protection. The citation
proposed a penalty of $2,500.00. Citation No. 2, alleging an “other” than serious violation of 29
C.F.R. § 1904.40(a) for failing to provide copies of OSHA Forms 300 and 330-A within four hours
of their request. The citation proposed a penalty of $500.00.

The hearing was held in St. Louis, Missouri, on September 3, 2004. By Decision and Order
dated November 19, 2004, Citation No. 1, alleging a violation of § 1926.760(a)(1), was vacated.
Citation No. 2, in violation of § 1904.40(a), was affirmed and a penalty of $300.00 was assessed.

On November 24, 2004, Fastrack petitioned the Review Commission for discretionary
review. The Commission declined to review the case, and the court’s decision and order became
final on December 30, 2004. Fastrack then moved for an award of fees and expenses under the
EAJA on January 26, 2005.

Equal Access to Justice Act

EAJA applies to proceedings before the Commission through § 10(c) of the Occupational
Safety and Health Act of 1970 (Act), 29 U.S.C. § 651, et seq . The purpose of the EAJA is to ensure
that an eligible applicant is not deterred from seeking review of, or defending against, unjustified
actions by the Secretary. K.D.K. Upset Forging, Inc ., 12 BNA OSHC 1857, 1859 (No. 81-1932,
1986). An award under the EAJA is made to an eligible applicant who is the prevailing party, if the
Secretary’s action is found to be without substantial justification, and there are no special
circumstances which make the award unjust. Asbestos Abatement Consultation & Engineering , 15
BNA OSHC 1252 (No. 87-1522, 1991). While the applicant has the burden of persuasion to show
that it meets the eligibility requirements to receive an award, the Secretary has the burden to show
that her position in the matter was substantially justified. 29 C.F.R. §§2204.105 and 2204.106.

Eligibility

The party seeking an award for fees and expenses must submit an application within thirty
days of the final disposition in an adversary adjudication. 5 U.S.C. § 504(a)(2). There is no dispute
that Fastrack timely filed its application.

Also, the party seeking an award must meet certain eligibility requirements. Commission
Rule 2204.105(b)(4) requires an eligible employer to be a “corporation . . . that has a net worth of
not more than $7 million and employs not more than 500 employees.” Commission Rule, 29 C.F.R.
§ 2204.202(a), requires that the applicant “provide with its application a detailed exhibit showing
the net worth of the applicant” as of the date of the notice of contest, and that the applicant provide
sufficient “full disclosure of the applicant’s assets and liabilities” to determine whether it qualifies
under the EAJA.

There is no dispute that Fastrack is a Missouri corporation (Complaint/Answer).

The record
shows that Fastrack employed approximately 26 employees in February 2004 (Tr. 85, 125). Fastrack
submitted financial information for DNRB, Inc., d/b/a Fastrack Erectors, in the form of a balance
sheet showing assets and liabilities as of March 26, 2004, the date of the notice of contest.

The net
worth reflected in the balance sheet is substantially less than $7 million.

However, it is noted that the certified public accountant indicates the balance sheet
compilation was limited to the representations of management. The accountants state that “[w]e
have not audited or reviewed the accompanying balance sheet and, accordingly, do not express an
opinion or any other form of assurance on it.” They further state that:

Management has elected to omit substantially all of the disclosures required by
generally accepted accounting principles. If the omitted disclosures were included
with the balance sheet, they might influence the user’s conclusions about the
Company’s financial position. Accordingly, this balance sheet is not designed for
those who are not informed about such matters.

Even considering the accountants’ disclaimers and the possible effect of the omitted
disclosures on the employer’s net worth, the record in this case leaves little doubt that Fastrack meets
the eligibility requirements of the EAJA. The Secretary agrees that Fastrack is an eligible applicant
under EAJA (Complainant’s Memorandum in Opposition, p. 2). Even if there is doubt about
eligibility, it is unnecessary to allow Fastrack to supplement its application because, as discussed,
it is determined that the Secretary was substantially justified in pursuing this case.

Prevailing Party

The Review Commission stated in K.D.K. Upset Forging, Inc. , 12 BNA OSHC 1856, 1857
(No. 81-1932, 1986):

Although the term is not defined in the EAJA, an applicant is considered to be the
“prevailing party” . . . if it has succeeded on any of the significant issues involved in
the litigation, and if, as a result of that success, the applicant has achieved some of
the benefit it sought in the litigation.

In the instant case, Citation No. 1, alleging a violation of § 1926.760(a)(1), was vacated after
a hearing by Decision and Order dated November 19, 2004. The Secretary agrees that Fastrack was
the prevailing party as to Citation No. 1 (Complainant’s Memorandum in Opposition, p. 3). Fastrack
meets the EAJA requirement as the prevailing party.

Substantially Justified

In order for Fastrack to be awarded costs under the EAJA, it must be determined that the
Secretary’s position in bringing this case was not substantially justified. “The test of whether the
Secretary’s action is substantially justified is essentially one of reasonableness in law and fact.”
Mautz & Oren, Inc ., 16 BNA OSHC 1006, 1009 (No. 89-1366, 1993). The reasonableness test
comprises three parts. The Secretary must show: (1) that there is a reasonable basis for the facts
alleged, (2) that there exists a reasonable basis in law for the theory it propounds; and (3) that the
facts alleged will reasonably support the legal theory advanced. Gaston v. Bowen , 854 F.2d 379,
380 (10 th Cir. 1988). There is no presumption that the Secretary’s position was not substantially
justified simply because she lost the case. Also, the Secretary’s decision to litigate does not have
to be based on a substantial probability of prevailing. See, S&H Riggers & Erectors, Inc. v OSHRC ,
672 F.2d 426, 430 (5 th Cir. 1982).

Citation No. 1 alleged a serious violation of § 1926.760(a)(1) , which provides:

Except as provided by paragraph (a)(3) of this section, each employee engaged in a
steel erection activity who is on a walking/working surface with an unprotected side
or edge more than 15 feet (4.6 m) above a lower level shall be protected from fall
hazards by guardrail systems, safety net systems, personal fall arrest systems,
positioning device systems or fall restraint systems.

The citation alleges Fastrack failed to protect employees who were on the roof along an
unprotected edge, approximately 38 feet above the ground, by appropriate fall protection. Fastrack
did not dispute the employees were on the roof without any means of fall protection or that the
foreman was aware of the employees’ activities (Exhs. C-1, C-2; Tr. 29-30, 97, 99, 103, 135-136).

Fastrack initially argued the employees were not engaged in steel erection because they were
taking measurements for the installation of roof decking. Also, Fastrack argued that its employees
were not exposed because they were more than 6 feet from the unprotected edge.

Fastrack’s first argument was rejected because taking measurements for the placement of roof
decking is still considered part of steel erection and not roof decking. See § 1926.750(b)(2). The
record showed the employees were using a black magic marker and tape measure to mark every 3
feet on the bar joists (Tr. 151-152). It was also determined that the exception in § 1926.760(a)(3) did
not apply because no controlled decking zone had been established, and the metal decking was not
being installed (Tr. 86, 98-99).

With regard to lack of exposure argument, Fastrack mis-characterizes the decision when it
states the court found “no evidence to prove a violation of the cited standard because there was a
total failure to show employees were exposed to a fall hazard more than 15 feet to the outside of the
building” (Fastrack’s Motion, p. 3). To establish employee exposure, the Secretary relied on the
observations and videotape made by Compliance Officer Davidson. Davidson testified that he saw
the employees come within 36 inches of the unprotected edge of the roof twice during a two-minute
period (Tr. 16, 30-31). The videotape made by Davidson tends to support his observations when
comparing the location of the employees’ feet to the unprotected edge (Exh. C-2).

However, Davidson’s observations and videotape were not found persuasive when the court
considered Davidson’s observations were made from across the street and at ground level,
approximately 75 yards from the roof. The roof was approximately 30 feet above ground level (Tr.
40, 49). At such a distance and angle, Davidson’s view may have been distorted. Also, after he
entered the worksite, the employees were no longer working on the roof .

Fastrack’s evidence was not much more persuasive than the Secretary’s evidence. It
consisted of the foreman, who was working below the employees and Fastrack’s owner. The
foreman testified the employees were standing on the decking bundle which had been placed at least
6 feet from the edge (Tr. 109). However, it was unclear from the record that the foreman was in a
position to see the employees at all times working overhead while he was preparing the floor for
decking (Tr. 97-98, 127). Fastrack’s owner, in describing the procedures for laying metal decking,
testified there was no reason for the employees to be closer than 6 feet from the edge while taking
the measurements (Tr. 135, 151). However, the owner was not present during OSHA’s inspection
and did not observe the employees’ actual work.

Based on this record, it was reasonable for the Secretary to pursue this matter based on
Davidson’s observations and videotape. Although the employees denied working at the roof’s edge
when interviewed by Davidson, they did not testify during the hearing, and it was not shown that
Davidson asked the distance they were working from the edge. Also, according to the Secretary, the
factual basis of Fastrack’s defense was not provided during discovery so that the Secretary could
have confirmed the validity of the argument prior to the hearing (Secretary’s Memorandum in
Opposition, p. 5).

In cases before the Commission, facts need to be proven by a preponderance of the evidence.
The Secretary failed to meet her burden. The decision on employee exposure in this case was
resolved on the basis of witnesses’ credibility and contradicted facts.

The EAJA is not to be read to deter the Secretary from pursuing, in good faith, cases which
are reasonable in advancing the objective of workplace safety and health, if such cases are reasonably
supportable in fact and law. The facts forming the basis of the Secretary’s position do not need to
be uncontradicted. Determinations based on disputed facts which are not resolved in favor of the
Secretary do not necessarily render the Secretary’s position as unjustified. If the credibility
determinations in this case had been resolved in favor of the Secretary, as opposed to Fastrack, the
Secretary’s claim of violation would have been supported “[A] case which truly turns on credibility
issues is particularly ill-suited for the reallocation of litigation fees under the EAJA.” Consolidated
Construction, Inc., 16 BNA OSHC 1001, 1006 (No. 89-2839, 1993).

The Secretary has established that she was substantially justified in pursuing the alleged
violation of § 1926.760(a)(1) . She had a reasonable basis: the observations of the compliance
officer, which were supported by a videotape for the facts alleged. Fastrack did not deny the
employees were on the roof approximately 30 feet above the ground without fall protection. The
standard cited requires employees utilize fall protection if exposed to a fall hazard. Thus, a
reasonable basis in fact and law existed for the case the Secretary propounded. The alleged facts
supported the legal theory advanced by the Secretary that Fastrack violated § 1926.760(a)(1) .

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

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.

ORDER

Based upon the foregoing decision, it is ORDERED:

Fastrack’s EAJA application for attorney fees and expenses is DENIED .

/s/

KEN S. WELSCH

Judge

Date: April 8, 2005