Bryan Martin, d/b/a Terra Reclamation

Read the official release (oshrc.gov)

Plain-English summary

Terra Reclamation was demolishing a three-story building in New Holland, Pennsylvania. Two workers used an aerial lift about 28 feet high without lanyards or harnesses, and other workers performed demolition near an unprotected upper-floor edge without fall protection. The company also began demolition without the required engineering survey by a competent person. The judge found that owner Bryan Martin was operating a backhoe in direct view of the work and had admitted the cited conditions after sanctions were imposed for his refusal to provide discovery. The two fall-protection items were affirmed as serious, and the engineering-survey item was affirmed as other-than-serious. Total penalties were $7,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.453(b)(2)(v); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.850(a)
• Outcome: All three items were affirmed, with $3,000 and $4,200 penalties for the serious fall items and no penalty for the survey item.
• Key point: Demolition work requires fall protection both in aerial lifts and at unprotected edges, as well as a competent-person engineering survey before work begins.

Full text (OSHRC public release)

                                     United States of America
                     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                            1120 20th Street, N.W., Ninth Floor
                                               Washington, DC 20036-3457




SECRETARY OF LABOR,
                  Complainant,
                        v.                                 OSHRC DOCKET No. 12-0554

BRYAN MARTIN, d/b/a TERRA
RECLAMATION, and its successors,

                   Respondent.

Appearances:

John Nocito, Esquire, U.S. Department of Labor, Office of the Solicitor, Philadelphia, PA
For the Complainant

Bryan Martin, Pro Se, Respondent

Before: Keith E. Bell, 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”). On August 23, 2011, the Occupational Safety and Health

Administration (“OSHA”) conducted an inspection of a worksite located at 153 East Main Street

in New Holland, Pennsylvania based on a complaint received the same day.1 As a result, OSHA

issued a Citation and Notification of Penalty (“Citation”) to Bryan Martin, d/b/a Terra

Reclamation, and its successors (“Respondent”) alleging violations of the Act. Respondent filed

1
OSHA’s inspection continued through August 24, 2011.
a timely Notice of Contest (“NOC”), bringing this matter before the Commission.

Citation 1, Item 1 is classified as “Serious” and alleges that Respondent violated 29 C.F.R. §

1926.453(b)(2)(v), based on employees observed in the basket of an aerial lift without wearing a

lanyard or harness. A penalty of $3,000.00 is proposed for this item. Citation 1, Item 2 is also

classified as “Serious” and alleges that Respondent violated 29 C.F.R. § 1926.501(b)(1), based

on observations of employees working on a surface elevated six feet or more above a lower level

without protection from fall hazards. A penalty of $4,200.00 is proposed for this item. Citation

2, Item 1 alleges that Respondent violated 29 C.F.R. § 1926.850(a), for failure to have an

engineering survey conducted by a competent person prior to permitting employees to begin

demolition. This item was classified as “Other than Serious” and no penalty was proposed.

A hearing in this case was held on October 16, 2012 in Philadelphia, Pennsylvania. The

parties each filed a post-hearing brief.2 For the reasons that follow, the Citation items are

AFFIRMED, and the proposed penalties, totaling $7,200.00, are assessed.

                                                 Jurisdiction

The record establishes that at all times relevant to this case, Respondent was an “employer”

engaged in a “business affecting commerce” within the meaning of section 3(5) of the Act, 29

U.S.C. § 625(5).3

                                           Factual Background

On August 23, 2011, the OSHA Area Office in Harrisburg, Pennsylvania received a phone

complaint indicating that employees were working from a 50-foot elevation without fall

2
Although Respondent’s post-hearing brief was received after the deadline, it was given due consideration.
3
In addition to the evidence adduced at trial, jurisdiction in this case was established by the Secretary’s request for
admissions which were deemed admitted by my Order of September 28, 2012, imposing sanctions. See GX-5. In
his Answer to the Secretary’s Complaint, Respondent denies coverage under the Act; however, all defenses were
stricken as part of my Order imposing sanctions.

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protection.4 The complaint referenced a site located at 153 East Main Street in New Holland,

Pennsylvania, where the demolition of a historic three-story building was ongoing. The building

was approximately 20 to 28 feet high. There was no work in progress when the OSHA

Compliance Officer (“CO”) first arrived on August 23, 2011, around 5 p.m. However,

demolition was in progress when he returned on August 24th around 8 a.m. The CO observed

about seven people working.5 Some of the workers were using pry bars to remove the front brick

facing of the building. Two workers were in a JLG aerial lift, and one of them was using a

tunneling iron to remove brick. Another was working towards the back of the building in

coordination with the backhoe operator, who was using a chain to pull debris off of the building.

Respondent, Bryan Martin, was the backhoe operator. (Tr. 37-43, 46-48).

                                   Secretary’s Motion for Sanctions

  On July 18, 2012, the Secretary of Labor (“Secretary”) filed a Motion to Compel Discovery in

this matter. As the basis for her motion, the Secretary noted Respondent’s refusal to answer her

First Set of Interrogatories and her Requests for Production of Documents and Admissions. On

July 27, 2012, I issued an Order to Show Cause requiring Respondent to provide an explanation

for his refusal to respond to the Secretary’s discovery. On August 13, 2012, I held a conference

call with the parties to discuss the discovery dispute in an attempt to resolve it without the need

for an Order to Compel. During that conference call, Respondent, Bryan Martin, stated that he

received the Order to Show Cause and had no intention of responding to any pretrial discovery,

motions or orders. I explained the sanctions that could result if he failed to file discovery

responses. Based upon Respondent’s representations during the conference call, I issued an

Order on August 21, 2012, granting the Secretary’s Motion to Compel and giving Respondent

4
Based on the information provided in the complaint, OSHA treated the matter as an “imminent danger.” (Tr. 38).
5
GX-7 contains a series of video clips showing what the CO saw, i.e., employees exposed to the conditions cited.

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until August 31, 2012 to comply. Respondent failed to provide the Secretary with her requested

discovery.6 On September 5, 2012, the Secretary filed a Motion for Default, asking the court to

find Respondent in default due to its repeated failure to obey the court’s orders to provide

discovery responses. In her motion, the Secretary claimed prejudice because Respondent’s

failure to provide discovery responses “obstructed [her] ability to determine the factual merits of

[Respondent’s] defenses that he is not an ‘employer’ under the Act and that he did not engage in

interstate commerce under the Act.” In an Order dated September 28, 2012, I held the

Secretary’s Motion for Default in abeyance and imposed sanctions in the alternative.

The Commission has held that prehearing procedures that aid in the early formulation of

issues benefit all parties during trial preparation and result in the more efficient use of

Commission resources at both the hearing and review stages. Architectural Glass & Metal Co.,

Inc., 19 BNA OSHC 1546 (No. 00-0389, 2001). The Commission has also held that the

imposition of appropriate sanctions is important to ensure compliance with prehearing

procedures and to adjudicate cases fairly and efficiently. Duquesne Light Co., 8 BNA OSHC

1218, 1221 (No. 78-5034, 1980). Although a judge has very broad discretion in imposing

sanctions for noncompliance with the Commission’s Rules of Procedure or his own orders, the

judge must not impose a sanction that is too harsh under the circumstances of the case.

“Reviewing courts universally recognize the harshness of dismissal with prejudice and generally

require that lesser sanctions first be considered.” Id. at 1222. However, the Commission has

stated that a default order may be appropriate where a party displays a “pattern of disregard” for

6
Respondent did not provide responses to the Secretary’s discovery requests at any time before the hearing.
However, in early September 2012, Respondent filed, in response to the Order to Compel, what I construed to be a
request for an extension of time of the hearing date. During a conference call with the parties on October 3, 2012,
Respondent indicated that he would in fact be attending the hearing set for October 16, 2012. I determined that
Respondent had not shown good cause for requesting an extension of time. Subsequently, an Order denying this
request was issued on October 9, 2012.

                                                     4

Commission proceedings. Philadelphia Constr. Equip. Inc., 16 BNA OSHC 1128, 1131 (No.

92-899, 1993). In addition, the Commission has indicated that the “extreme sanction” of

exclusion of evidence critical to a party's case may be appropriate, but only where a party has

willfully deceived the Commission or flagrantly disregarded a Commission order. Jersey Steel

Erectors, 16 BNA OSHC 1162, 1166 (No. 90-1307, 1993), aff'd without published opinion, 19

F.3d 643 (3d Cir. 1994).

Here, Respondent’s failure to comply with the Order to Show Cause and the Order to Compel

was defiant and flagrant. Clearly, not even the possibility of sanctions, as explained to

Respondent, was enough to persuade him to change his mind about filing responses to the

Secretary’s discovery requests. Additionally, the Secretary’s claims of prejudice are found to be

legitimate, in that she was deprived of evidence that could have been used to either prove or

disprove the factual merits of Respondent’s defenses. Nevertheless, I recognize the need for

sanctions proportionate to the misconduct for which they are imposed. Given Respondent’s

participation in two prehearing conference calls and the hearing itself, I find that default is not an

appropriate sanction. Accordingly, the Secretary’s Motion for Default is hereby DENIED.

However, the following sanctions were imposed, in my Order of September 28, 2012, in light

of Respondent’s conduct:

1. All of the defenses (affirmative or otherwise) raised in Respondent's answer shall be and

   are hereby STRICKEN and Respondent shall not be allowed to offer any evidence on any

   of these defenses at the hearing, either through witnesses, documents or otherwise; or in

   any post-hearing briefs filed by Respondent;

2. Respondent shall not be allowed to offer into evidence at the hearing in this case any

   documentary material, including photographs, statements, etc., sought by the Secretary in



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any of her discovery requests;

3. Respondent shall not be able to object to the admissibility into evidence of any offer of

    proof made at the hearing by the Secretary as to the expected testimony of any witness

    that the Secretary has been unable to locate prior to the hearing due to Respondent's

    failure to respond to the Secretary's discovery requests;

4. Respondent shall not be able to object to the admissibility into evidence of any document

    offered by the Secretary at the hearing;

5. Secretary's First Requests for Admissions are deemed admitted.7 (GX-5).

                                   Secretary’s Burden of Proof

The Secretary has the burden of establishing that the employer violated the cited standard.

To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of

the cited standard; (3) employees had access to the violative condition; and (4) the employer

either knew or could have known with the exercise of reasonable diligence of the violative

condition. JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

To demonstrate that a violation was “serious” under section 17(d) of the Act, the Secretary

must show that there is a substantial probability of death or serious physical harm that could

result from the cited condition and that the employer knew or should have known of the

violation. The Secretary need not show the likelihood of an accident occurring. Spancrete

Northeast, Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).

7
My Order also stated that Respondent’s continued failure to comply with the Commission’s Rules could result in
further sanctions, including the dismissal of the NOC and the assessment of costs and expenses incurred by the
Commission and the other parties.

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Discussion

The overarching theme in this case is Respondent’s view towards safety in general, which is

best reflected in his own words:

  Q. [D]o you feel that you were doing right by those workers as far as safety is concerned?

A. Yes. The reason is, their freedoms are more important to me than their safety, and
their freedom to work like that, and I choose to work like that cause [sic] I was up there with
them, that’s what I --- I’ll die for my freedoms before I live under that kind of oppression where
the government comes in and tell [sic] me how to operate and work. (Tr. 241-242). [Emphasis
supplied].
Alleged Violation of 29 C.F.R. § 1926.453(b)(2)(v)

  Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.453(b)(2)(v), as follows:

       A body belt with a lanyard attached to the boom or basket was not worn when working
       from an aerial lift:

                 (a) 153 East Main Street, New Holland, PA – Employee(s) were performing work
                     activities from a JLG 4005 aerial lift approximately 28 feet high. The
                     employee(s) were not protected/restrained from falling by the use of a body
                     belt/harness and attached lanyard, thereby exposing employee(s) to possible
                     fall hazards and injuries, on or about August 24, 2011.

  The CO testified that the standard requires an employee working in an aerial lift to “have a

fall restraint (sic) on them.”8 The CO further testified that this standard is immediately triggered

when workers get into the lift because it can bounce when moved. (Tr. 57). I find that the facts

giving rise to this violation fall squarely within the protective purpose of the standard cited.

   Respondent has admitted that two men were working from an aerial lift and exposed to a fall

hazard of approximately 28 feet. (GX-5, p. 4). Respondent also admitted that the employees

referenced in this citation were not protected from fall hazards. (Tr. 81-83; GX-5, p. 4).

Respondent stipulated that there was no fall protection on this worksite other than the guardrail

on the aerial lift. (Tr. 81-83). The CO testified that, based on his experience, the danger posed

by this hazard included death. He also testified that Respondent was in a position to see the
8
I find that this interpretation is supported by the plain language of 29 C.F.R. § 1926.453(b)(2)(v).

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individuals working in the aerial lift. (Tr. 59).

Based on the foregoing, I find that the Secretary has met her burden of establishing all of the

elements necessary to show a violation of 29 C.F.R. § 1926.453(b)(2). I also find that the

violation is correctly classified as serious.

                         Alleged Violation of 29 C.F.R. § 1926.501(b)(1)

Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.501(b)(1), as follows:

     Employee(s) were on a walking/working surface with an unprotected side or edge which
     is 6 feet (1.8m) or more above a lower level and were not protected from falling by the
     use of guardrail systems, safety net systems, or personal fall arrest systems:

              (a) 153 East Main Street, New Holland, PA – Employee(s) were performing
                  demolition work activities on the third floor, without the use of a fall
                  protection system, thereby exposing employee(s) to a fall hazard of
                  approximately 28 feet, on or about August 24, 2011.

The CO testified that the purpose of this standard is that “[i]t requires that the employer

provide some type of fall protection system.”9 (Tr. 60). I find that this standard applies to the

facts that gave rise to this violation.

Respondent has admitted that the employees referenced in this citation were “exposed to a fall

of approximately 28 feet while performing demolition operations on a walking/working surface

with an unprotected edge and were not protected from falling by a guardrail system, safety net

system or personal fall arrest system.”10 (Tr. 81-83; GX-5, p. 5). Exhibit GX-8 shows two of the

employees working on top of the building near the edge without fall protection. The CO testified

that Respondent was “in direct view and was communicating with these individuals and

employees working on the second floor….” (Tr. 60). The CO testified that the danger to the

exposed employees included death. (Tr. 63).

9
I find this interpretation of 29 § 1926.501(b)(1) is supported by the plain language of the standard, once it is shown
that employee(s) were working from a surface with an unprotected side or edge 6 feet or more above a lower level.
10
During the hearing, Respondent stipulated that there was no fall protection on this worksite other than the
guardrail on the aerial lift. (Tr. 81-83).

                                                       8

In view of the above, I find that the Secretary has established all of the elements necessary to

prove a violation of 29 C.F.R. § 1926.501(b)(1). Further, the violation is correctly classified as

serious.

                       Alleged Violation of 29 C.F.R. § 1926.850(a)

Citation 2, Item 1 alleges an other-than-serious violation of 29 C.F.R. § 1926.850(a), as set

out below:

   Evidence in writing was not available that an engineering survey performed by a
   competent person had been performed prior to permitting employee(s) to start demolition
   operations:

           (a) 153 East Main Street, New Holland, PA – An engineering survey was not
               performed by a competent person prior to employee(s) entering the building to
               ensure the structure could sustain the weight and operating forces imposed
               from the demolition to the other floors/walls, on or about August 24, 2011.

The CO testified the standard requires that “a competent person … have a demolition survey

conducted for the site to know what wall needs to come down at a given time.” (Tr. 64). I find

that this standard applies to the facts that gave rise to this violation. The CO further testified that

a subpoena was issued to obtain a copy of the engineering survey for this project; however, none

was provided. (Tr. 65). Respondent admitted that he did not perform a demolition survey before

permitting workers to start demolition operations. (Tr. 241; GX-5, p. 5).

Based on the foregoing, I find that the Secretary has met her burden of showing a violation of

29 C.F.R. § 1926.850(a). I also find the violation is properly classified as “other than serious.”

No penalty was proposed for this item, and none is assessed.

                                  Penalty Determination

The Commission, as the final arbiter of penalties, must give due consideration to the gravity

of the violation and to the employer's size, history and good faith. J.A. Jones Constr. Co., 15

BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not necessarily accorded

                                               9

equal weight, and gravity is generally the most important factor. Trinity Indus., Inc., 15 BNA

OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a violation depends upon such matters as

the number of employees exposed, duration of exposure, precautions taken against injury, and

the likelihood that an injury would result. J.A. Jones, 15 BNA OSHC at 2213-14.

  In this case, I find that OSHA appropriately evaluated the severity of the violations alleged in

Citation 1, Items 1 and 2, as “high.” (Tr. 217, 223). In regard to Item 1, the OSHA Assistant

Area Director (“AAD”) testified that the exposed employees in the aerial lift were 20 to 28 feet

up in the air. (Tr. 217). The CO testified that, based on his experience, a fall from that height

could include death. (Tr. 59). With respect to Item 2, the CO and the AAD both testified that

the likely injury could include death. (Tr. 63, 223).

  I find that OSHA correctly evaluated the gravity for Item 1 to be “lesser,” based on the

guardrail system in place on the aerial lift. (Tr. 218). I further find that OSHA correctly

evaluated the gravity for Item 2 to be “greater,” in light of how close the exposed employee was

working to the edge and the duration of the exposure. (Tr. 224).11

 Respondent, Bryan Martin, had fewer than 25 employees at the time of the inspection. He was

consequently given a 40% reduction of the originally-proposed penalty amounts. This reduction

resulted in proposed penalties of $3,000 and $4,200, respectively, for Items 1 and 2 of Citation 1.

(Tr. 223-224). I find that the proposed penalties as reduced are appropriate. Accordingly, a

penalty of $3,000 for Citation 1, Item 1, is assessed, and a penalty of $4,200 for Citation 1, Item

2, is assessed.

                      FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

52(a) of the Federal Rules of Civil Procedure.
11
The parties stipulated that no fall protection was provided for the employees cited in Citation 1, Item 2. (Tr. 83).

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ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

    1.   Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.453(b)(2), is

       AFFIRMED, and a penalty of $3,000.00 is assessed.

    2. Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.501(b)(1), is

       AFFIRMED, and a penalty of $4,200.00 is assessed.

    3. Item 1 of Other-than-Serious Citation 2, alleging a violation of 29 C.F.R. §

       1926.850(a), is AFFIRMED, and no penalty is assessed.

DATED: January 7, 2013 /s/Keith E. Bell
Washington, D.C. KEITH E. BELL
Judge, OSHRC

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