Daniel O'Connell's Sons, Inc.
Lifesaving-skiff citation settled for $5,000
Apply this precedent to your situation
This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Daniel O'Connell's Sons, Inc. performed bridge work over the Connecticut River and was cited for failing to make a lifesaving skiff immediately available. The administrative law judge had affirmed the item as willful with a $35,000 penalty. While the case was under Commission review, the parties agreed that the violation had been abated and would remain abated. The settlement amended the item's characterization, reduced the penalty to $5,000, and required the employer to withdraw its contest. The Commission approved the agreement and set aside the judge's decision to the extent it conflicted with the settlement.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.106(d).
- Outcome: Settled. The employer accepted the amended lifesaving-skiff citation and agreed to pay $5,000.
- Key point: The Commission may approve a settlement reached during review and replace inconsistent portions of the judge's decision with the parties' agreed terms.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
I1 20 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
COM (202) 60645100 COM (202) 6o64050
~(202)60&6100 Frs (202) 606-5050
SECRETARY OF LABOR,
Complainant,
v. .. Docket No. 93-2160
.
DANIEL O’CONNELL’S SONS, INC.,
Respondent.
ORDER
This matter is before the Commission on a direction for review entered by
Commissioner Velma Montoya on July 21, 1995. The parties have now filed a stipulation
and settlement agreement.
Having reviewed the record, and based upon the representations appearing in the
stipulation and settlement agreement, we conclude that this case raises no matters
warranting further review by the Commission. The terms of the stipulation and settlement
agreement do not appear to be contrary to the purposes of the Occupational Safety and
Health Act and are in compliance with the Commission’s Rules of Procedure.
Accordingly, we incorporate the terms of the stipulation and settlement agreement
into this order, and we set aside the Administrative Law Judge’s decision and order to the
extent that it is inconsistent with the stipulation and settlement agreement. This is the final
order of the Commission in this case. See 29 U.S.C. $9 659(c), 660(a), and (b).
Stuart E. Weisberg
Chairman
Edwin G. Foulke
Commissioner
Commissioner
1995 OSHRC No. 13
I certify that a copy of this order has been served on the following parties this
15th day of March, 1995:
Daniel J. Mick
Counsel for Regional Trial Litigation
Orlando J. Pannocchia, Attorney
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Albert H. Ross, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
One Congress Street
P. 0. Box 8396
Boston, MA 02114
Bruce L. Leiter, Attorney
Ryan, Martin, Costello, Leiter,
Steiger & Cass, P.C.
1500 Main St., Suite 2500
P. 0. Box 15629
Springfield, MA 01115-5629
Robert A. Yetman
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
Stella Key Acree
Legal Technician
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
l
0
ROBERT B. REICH, SECRETARY OF LABOR, l
.
.
0
Complainant, .
.
l
0
v.
:OSHRC Docket No. 93-2160
l
.
DANIEL O'CONNELL'S SONS, INC., 0
.
l
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Respondent. 0
.
0
a
STIPULATION AND SETTLEMENT AGREEMENT
I
The parties have reached agreement on a full and complete
settlement and disposition of the issues in this proceeding which
is currently pending before the Commission.
II
It is hereby stipulated and agreed by between the
Complainant, Secretary of Labor and the Respondent, Daniel
O'Connell's Sons, Inc. that:
1. Respondent represents that the alleged violation of 29
C.F.R. 1926.106(d) (Willful Citation 2, item 1) has been abated
and shall remain abated.
2. Complainant hereby amends Item 1 of Willful Citation 2
to characterize the alleged violation of 29 C.F.R. 1926.106(d) as
a violation of Section 17 of the Act. The proposed penalty for
this citation is amended to $5,000.
3. Respondent hereby withdraws its notice of contest to
the citation and penalty as amended herein.
4. Respondent hereby agrees to pay a penalty of $5,000 by
submitting its check, made payable to U.S. Department of Labor,
Occupational Safety and Health Administration (OSHA) to the OSHA
Area Office within 30 days from the date of this Agreement.
50 Each party agrees to bear its own fees and other
expenses incurred by such party in connection with any stage of
this proceeding.
6. None of the foregoing agreements, statements,
stipulations, or actions taken by Daniel O*ConnelPs Sons shall
be deemed an admission by Respondent of the allegations contained
in the citations or the complaint herein. The agreements,
statements, stipulations, and actions herein are made solely for
the purpose of settling this matter economically and amicably and
they shall not be used for any other purpose, except for
subsequent proceedings and matters brought by the Secretary of
Labor directly under the provisions of the Occupational Safety
and Health Act of 1970.
7. No authorized employee representative elected party
status in this case.
8. The parties agree that this Stipulation and Settlement
Agreement is effective upon execution.
90 Respondent certifies that a copy of this Stipulation
and Settlement Agreement was posted at its main office on the
'I
:<P day of February 1995, pursuant to Commission Rules 7 and
100, and will remain posted for a period of ten (10) days.
r ',
%J1
Dated this.,
2% . day of February 1995.
Respectfully submitted,
THOMAS S. WILLIAMSON, JR.
Solicitor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional
Trial Litigation
Attorney for Daniel
O'Connell% Sons, Inc. Secretary of Labor
RYAN, MARTIN, COSTELLO, 200 Constitution Avenue, NW
LEITER, STEIGER & CASS, P.C. Room S-4004
1500 Main St., Suite 2500 Washington, D.C. 20210
P.O. Box 15629
Springfield, MA 01115-5629
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
13 20 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
COM (202) 6064100 COM (202) 6064050
Frs (202) 6064100 FTS (202) 606-5050
SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NO. 93-2160
DANIEL O’CONNELL’S SONS, INC.,
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June 23, 1994. The decision of the Judge
will become a final order of the Commission on July 25, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
July 13, 1B94 in order to ermit sufficient time for its review. T ee
Comssion Rule 91, 29 is .F.R. 2200.91.
All further pleadings Of comnnunications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent th .e Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: June 23, 1994
DOCKET NO. 93-2160
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
205 Constitution Ave., N.W.
Washington, D.C. 20210
Albert H. Ross, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
One Congress Street, ilth koor
P.O. Box 8396
Boston, MA 02114
Barrett A. Metzler, CSP
Northeast Safety Management, Inc.
PO Box 330733
West Hartford, CT 06103
Robert A. Yetman
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501
00017519760:01
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501
PHONE FAX
COM (617) 223-9746 COM (617) 223-4004
FTS (617) 223-9746 FTS (6 17) 223-4004
I
SECRETARY OF LABOR, I
I
Complainant, I
I
v. I OSHRC DOCKET
I NO. 93-2160
DANIEL O’CONNELL’S I
SONS, INC., I
I
Respondent. I
Appearances:
James Glickman, Esq. Barrett A. Metzler, CSP
Office of the Solicitor North East Safety Management, Inc.
U.S. Department of Labor West Hartford, CT
For Complainant For Respondent
Before: Administrative Law Judge Robert A. Yetman
DECISION AND ORDER
This proceeding arises under $10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. 8651, et seq., (“Act”) to review citations issued by the Secretary of Labor
pursuant to $9(a) of the Act and a proposed penalty assessment thereof issued pursuant to
$10(a) of the Act. R espondent admitted jurisdiction in its answer.
On June 25, 1993, the Secretary issued citations to Daniel O’Connell Sons, Inc.
(O’Connell) alleging that Serious and Willful violations occurred at Respondent’s worksite
located on the Memorial Bridge spanning the Connecticut River and connecting the cities
of Springfield and West Springfield, Massachusetts. The complaint charges O’Connell with
a Willful violation of 29 C.F.R. $1926.106(d) and Serious violations of 29 C.F.R. 51926.28(a)
and 29 C.F.R. §1926.106(c). The Secretary proposed a $35,000 penalty for the Willful
violation and a total penalty of $7,500 for the Serious violations.
By fifing a timely Notice of Contest, Respondent brought this proceeding before the
Occupational Safety and Health Review Commission (“Commission”). The parties have
submitted their briefs and the matter is now ready for decision.
Summarv of the Evidence
During May, 1993, Respondent commenced working on the Memorial Bridge. The
work entaiIed the removal and replacement of the road bed and significant portions of the
supporting structure. Another contractor had commenced the work and, for unknown
reasons, the job was put out for new bids and Respondent was awarded the contract.
During the initiaf phases of its work activity, Respondent was engaged in “cleaning up”
debris and work performed by the previous contractor.
On May 25, 1993, William Lambert and Steve Spencer, Safety and Health inspectors
for the Massachusetts Department of Labor and Industries, visited the worksite at
Respondent’s request to view the area and discuss potential safety and health problems (Tr.
20,21). Respondent was represented by Mr. Lytwyn, Safety Director, Mr. Maiorano, Project
Manager and Mr. Kislowski, Superintendent, at this meeting. Mr. Lambert noted several
openings in the deck of the bridge, as well as other potentia1 safety hazards and conveyed
his concerns to Respondent’s representatives. Lambert also “strongly suggested” that a fife
boat should be made available for launch “and it should be along the river bank” (Tr. 24).
According to Lambert, he was told that Respondent “had a boat stolen from them on one
bridge job, and they didn’t know what they were going to do” (Tr. 24). Respondent also
spent “at least $2,000 repairing the boat as a result of vanda?ism” (Tr. 367). Thereafter, a
discussion took place among Respondent’s representatives regarding the best method
available to comply with the lifeboat requirement. A major concern was the potential
vandalism of the boat (Tr. 167, 193, 197,200,210,217). It was decided to keep the boat on
the bridge1 on a trailer inside a “Drag0 box”” for security reasons (Tr. 217). It was
’ The bridge is approximately 1000 feet long with four ianes of traffic. Two lanes were closed for
construction purposes.
concluded that two methods were available for launching the boat. The first method was
to drive the boat to the nearest boat launch (Bondi’s Island), about one-half mile away or,
secondly, place the boat in the water from the bridge by crane. Mr. Kislowski, the
Superintendent, later told the Compliance Officer, however, that it was his intent to leave
the boat in the water during the work day after the clean-up phase had ended (Tr. 156).
Kislowski stated that they made a “dry run” for launching the boat at Bondi’s Island (Tr.
166) prior to June 1, 1993 (Tr. 171) to make sure that it could be done. Kislowski
estimated that it took seven to eight minutes to drive the boat and trailer from the bridge
and launch the boat at Bondi’s Island (Tr. 179). Respondent did not practice launching the
boat from the bridge by crane prior to June 2, 1993 (Tr. 180).
On June 2, 1993, Albert Springer, a carpenter employed by Respondent for 27 years,
was working on the bridge removing steel brackets from exposed horizontal concrete support
beams (Tr.43, Exh. C-3). The road bed had been partially removed exposing the beams and
the river fifty feet below. This activity was considered as part of the clean-up work since the
brackets had been installed by the previous contractor. Springer and his co-workers initially
attempted to remove the brackets while standing in a man basket suspended from a crane
and placed alongside the concrete beam. Because of the weight of the brackets, this
procedure proved to be unsuccessful (Tr. 444546). Springer and his foreman decided that
it was necessary for Springer to walk out on the beam and attach the line from the crane
to each bracket and the crane wouid lift the brackets from the beams (Tr. 46). Springer put
on a body harness consisting of a life preserver, a safety belt and lanyard (Tr. 49). Mr.
Springer intended to attach the safety belt lanyard to reinforcing bars which were protruding
from the side of the road bed immediately adjacent to the cement beam (Exhibit C-3).
Tangled reinforcing bars were also located at various intervals along the top of the beam
(Exhibit C-3). The beam was approximately 12 to 15 inches below the bridge surface (Tr.
88). As Mr. Springer attempted to step onto the beam through the tangle of reinforcing
bars, he stubbed his toe and fell off the beam and into the river fifty feet below (Tr. 56-57).
2 A Drago box is a storage container approximately B-20 feet long that is capable of being locked to
prevent vandalism (Tr. 79).
3
He scraped his head and knee on the way down (Tr. 72, 73). After resurfacing, Springer
determined that he was not seriously hurt, and yelled up to his co-workers that he was all
right. He did so because he was fearful that his co-workers would jump in after him and he
didn’t want them to risk their lives by jumping in to rescue him (Tr. 74, 75). The current
was swift, and he quickly floated downstream. No ring buoy was thrown to him (Tr. 76).
After approximately twenty minutes in the river, Springer was rescued by a Springfield Police
boat (Tr. 78).
At the time that Mr. Springer fell in the water, Superintendent Kisfowski was located
at the West Springfield end of the bridge. An employee ran to him and informed Kislowski
that Springer had fallen. Kistowski was the designated driver for the rescue launch (Tr.
179); however, a nearby policeman offered to call a police boat by radio to rescue Springer.
Kislowski had not considered using the police boat for rescue purposes prior to this time,
and the use of that boat was not part of Respondent’s rescue plan (Tr. 180, 181). Kislowski
immediately agreed and Springer was removed from the river by police boat. No attempt
was made by Respondent’s employees to launch the rescue boat. After investigating the
accident, the Secretary issued citations alleging the following violations:
(a) Willful Citation No. 2, Item No. 1:
29 C.F.R. 1926.106(d): A lifesaving skiff was not immediately available at locations
where employees were working over or adjacent to water:
MEMORIAL, BRIDGE: IN AN AREA WHERE WORKERS
WERE WORKING NEAR OR OVER WATER THERE WAS
NOT A LIFESAVING SKIFF IMMEDIATELY AVAILABLE.
WORKERS INVOLVED IN CLEANUP OPERATIONS ON
THE BRIDGE WERE EXPOSED TO FALLS INTO THE
WATER AND THE EXISTING BOAT WAS LOCATED UP
ON THE BRIDGE AND WAS NOT IMMEDIATELY
AVAILABLE.
The issue to be resolved regarding this alleged violation is whether Respondent’s
rescue boat was “immediately availabfe” to effectuate a rescue in the event that an
employee fell in the river. Upon notification by the Commonwealth of Massachusetts
Department of Labor and Industries that a rescue skiff should be at the work site,
Respondent’s representatives decided to place a boat in a secure container on the bridge.
4
In the event that an employee fell in the river, the boat was to be launched either by crane
or driven to the nearest boat landing approximately one-half mile away. Both alternatives
presented major difficulties for Respondent. First, with respect to placing the boat in the
river by crane, there was one crane on the site for construction purposes and there was no
assurance that it would be available to quickly launch the boat. Secondly, Respondent had
not practiced this launching method to determine whether it was feasible to effectuate a
rescue in an timely fashion. Third, Respondent had not determined how to place rescue
personnel in the boat after its placement in the water. Moreover, no one had been
designated to determine whether the crane should be used to launch the boat or the
circumstances that must be present in order to launch the boat by crane. The facts elicited
at the hearing support the conclusion that launching the rescue boat from the bridge by
crane was an ill-conceived rescue procedure which failed to render the rescue boat
immediately available for rescue purposes.
Respondent’s second rescue option involved the removal of the boat from the Drago
box by truck3 and transportation of the boat and trailer to a boat launch located
approximately one-half mile from the bridge. According to Respondent’s superintendent,
a “dry run” of this procedure had taken place prior to the accident, and it was concluded
that the boat could be launched in approximately eight minutes. The facts reveal, however,
that Mr. Kislowski’s time estimate is extremely optimistic, even under the most favorable
conditions. The truck designated to haul the boat and trailer was not used solely for that
purpose. It was a general purpose truck used as necessary during the construction work.
As a result, it could have been located at any point on the bridge, engaged in a variety of
activities at a critical point in the rescue procedure. Moreover, no one had been designated
to drive the truck to the boat for hook up and, thence, to the boat landing for launching.
Since Mr. Kislowski was the designated boat driver, the boat could not leave the bridge until
he was in the truck. At the time of the accident, Kislowski was at the far end of the bridge
approximately 500 feet from the boat. Furthermore, as described by Mr. Springer, the traffic
3 The truck was not attached to the boat trailer. In the event of a fall, the truck had to be driven to the
D-ago box and hooked onto the boat trailer.
5
on the bridge was very heavy as a result of two lanes being closed. It would have been
necessary to drive the truck and trailer from the middle of the bridge in heavy one-lane
traffic around a traffic circle and then to the boat launch located one-half mile from the
bridge. Under these circumstances, it is clear that the rescue boat was not immediately
available to effectuate Mr. Springer’s rescue See Structural Painting Corp., 1977 OSHD
(CCH) V21,432 afs’d olt other growds, 1979 OSHD (CCH) 823,817. This fact is supported
by the actions of Superintendent IKislowski who, without any hesitation, accepted the
fortuitous and unexpected offer by the police officer on the bridge to summon a police boat
to rescue Mr. Springer without, thereafter, even attempting to Iaunch the boat which was
specifically assigned to that task. Thus, it is concluded that Respondent violated the
provisions of 29 C.F.R. §1926106(d) by failing to make a lifesaving skiff immediately
available where employees were working over water. Secretary of Labor v. Gabriel Fuerttes
Constr. Co., 15 BNA, OSHC 1330.
The Secretary asserts that the violation described above is “willful” within the
meaning of Section 17(a) of the Act. Although not defined in the Act, “willful” has been
defined by the Courts as “conscious and intentional disregard of conditions”, “deliberate and
intentional misconduct”, “utter disregard of consequences” and similar descriptions. See
Brock v. Morello Brothers Construction, hc., 809 F2d 161 (Zst Cir. 1987). fn order to
establish a willful violation, it is necessary to determine the “state of mind” of the employer
at the time of the violations. The standard of proof requires that evidence be produced
establishing that the Respondent displayed an intentional disregard for the requirements of
law and made a conscious, intentional, deliberate and voluntary decision to vioIate the law
or was plainly indifferent to the requirements of the statute. A. Schenbek and Company v.
Donovan, 646 F2d 799, 800 (2nd Cir. 1981); Morello Brothers Construction, supra at 164;
Georgia Electric Co. v. Marshall, 595 F2d 309, (5th Cir. 1979). Wilfful violations are
distinguished by a “heightened awareness of illegality - of the conduct or conditions - and
by a state of mind-conscious disregard or plain indifference.” WiIliams Enterprises, he, 1986.
87, CCH OSHD 727,893. The employer’s good faith is irrelevant in determining whether
a willful violation has occurred. Secretary of Labor v. Ttinity hdustries, 16 BNA OSHC 1665
(11th Cir. 1994).
The record in this case establishes that Respondent was well aware of its
responsibility to provide for a life saving skiff at the job site. The Massachusetts
Department of Labor had informed Respondent’s representatives prior to the start of work
that a boat should be placed by the shore (Tr. 24-25). The record also reveals that
Respondent was quite concerned about the safety of the boat. The Project Manager,
Stephen Maiorano, Superintendent Richard Kislowski and Safety Director, William Lytwyn
testified at length that they were greatly concerned about the possible vandalism of the boat
if it was left unattended either in the water or at the water’s edge. Mr. Maiorano testified
that they “generally keep any launches adjacent to the water or ready to be launched” (Tr.
225); however, in this case, they believed that it was necessary to take measures to protect
the boat from vandalism. Accordingly, the decision was made to place the boat on the
bridge under the watchful eyes of the workers and in a secure container (Tr. 228, 167, 193,
197, 200, 210, 217). Respondent’s Safety Director testified that the threat of vandalism was
the only reason for not placing the boat in the water for rescue purposes (Tr. 200-201).
Thus, Respondent knowingly altered its normal procedure and elevated the security of the
boat above its responsibility to provide a readily accessible boat for rescue purposes.
Although these actions were intended to be temporary until a barge was placed in the river
at some future date, the conscious decision by Respondent’s management employees not to
have a rescue boat readily available on June 2, 1993 exposed Mr. Springer and his co-
workers to serious injury or death by drowning. For the foregoing reasons, it is concluded
that Respondent willfully violated 29 C.F.R. §1926.106(d) as alleged.
(b) Serious Citation No. 1, Item No. 1:
29 C.F.R. 1926.28(a): Appropriate personal protective equipment was not worn by
employees in all operations where there was exposure to hazardous conditions:
A. MEMORIAL BRIDGE: A WORKER EXPOSED TO A FALL IN
EXCESS OF 45 FEET OVER WATER WAS NOT PROTECTED
FROM A FALL AT ALL TIMES BY MEANS OF AN ATTACHED
SAFETY BELT AND LANYARD.
In order to establish a violation of the cited standard, the Secretary must prove the
following elements: (1) there was an exposure to a hazardous condition, (2) some other
section in Part 1926 indicates a need for using personal protective equipment, in this case,
safety belts, and (3) the employer faiied to require the use of the equipment L.E. Myers Co.,
12 BNA OSHC 1609; Pace Construction Corporation, 14 BNA OSEE 2X7. The first
element was clearly established by the Secretary. Respondent’s employee was exposed to
a fall of approximately fifty feet into the Connecticut River while workmg on a narrow
concrete support beam. The second element of proof, however, cannot be as clearly
discerned from the record of this case. The citation issued to Respondent and the complaint
filed in this matter merely recite the language of Section 28(a) with an explanatory note that
exposed employees should be protected “by means of an attached safety belt and lanyard.”
There is no reference in either document that places the Respondent on notice that some
other section in Part 1926 requires the use of safety belts under the conditions present at
Respondent’s worksite. The Secretary’s failure to state in the pleadings the applicable
“other section in Part 1926” is not fatal, however, to the Secretary’s case. In L.E. Myers
Company, supm, at Footnote 11, the Commission states:
[w]e do not say, at this point, that the Secretary must specify in
the citation itself the conjunctive section in Part 1926 that
‘indicates the need’ for personal protective equipment under the
particular circumstances, although that seems to us to be the
better approach. We only reiterate the due process
requirement that at somepoirzt in theproceedings the respondent
must have fair notice of the conjunctive section upon which the
Secretary relies. . . . Emphasis supplied
At no time during the hearing did the Secretary state, or through his witnesses indicate, the
“other section of Part 1926” requiring the use of safety belts. Moreover, Complainant’s pre-
trial submission meremy states that the issue to be tried was “fwlhether respondent failed to
ensure that safety belts and lanyards were used at all times while employees worked over
water.” Respondent, on the other hand, listed the issue to be tried as whether Respondent
“committed the violations alleged in the complai~lt.“4 Emphasis supplied
In his post-trial brief, the Secretary, for the first time, announces the “other section
in Part 1926” as follows:
4 Respondent’s representative is a non-lawyer.
8
Second, another standard in Part 1926, 29 C.F.R. 51926.105(a)
indicates a need for the use of fall protection under these
circumstances, such as safety belts. Id. No safety nets,
referenced in Section 1926.105(a), were used at the site at the
time in question. Tr. 86. Because Respondent decided not to
use safety belts, [sic]’ Tr. 866, it was obligated to use another
form of protection.7
The Secretary’s failure to disclose the fact that Section 1926.105(a) forms an essential
element for the violation until the post-hearing brief has denied Respondent fair notice of
its alleged violative conduct. Diebold, hc. v. Marshall, 6 BNA OSHC 2002; Secretary of Labor
v. Cardinal hdustries, 14 BNA OSHC 1009, and is a sufficient ground for vacating the
alleged violation.
Even if it were possible to glean from the pleadings and trial of this matter that the
Secretary was alleging Respondent had violated Section 105(a) by failing to protect
employees from falls by means of an attached safety belt and lanyard, the Secretary failed
to establish that the use of that equipment was practical under the circumstances of this case
as required by that standard. According to the evidence, employee Springer was wearing
a safety belt and a lanyard as he attempted to step down from the road bed of the bridge
to the supporting beam to attach the lanyard somewhere among a tangle of reinforcing bars
when he stubbed his toe and fell. The Secretary argues that the placement of two lanyards
on the safety belt would have prevented Mr. Springer’s fall from the bridge. However,
whether the safety belt had two lanyards or ten lanyards would not have made any difference
It is apparent, in view of the facts of this case, that the Secretary meant to say “safety nets” rather than
“safety belts.”
6 The cited testimony occurred during the direct examination of the employee who fell from the bridge
and is the only reference in the entire transcript to safety nets:
BY MR. GLICKMAN: Mr. Springer, did the company on or before your
fall on June 2nd of ‘92 have a safety net under the bridge, under the portion
of the bridge you were working?
Never had no nets there when I was there. We didn’t have no nets.
7 The Secretary has misinterpreted the employer’s obligations under Section 105(a). Safety nets must be
used when the use of safety belts or other safety devices listed therein are impractical.
9
in this case for the simple reason that no Iifeline or other appropriate structure was provided
for attaching the lanyard before Springer attempted to step onto the beam? It was during
that activity that Springer became exposed to the falling hazard. No evidence was presented
by the Secretary establishing that it was feasible or practical to provide a lifeline or other
appropriate structure at the worksite in such a manner that the fall could have been
prevented.’ In the absence of any evidence that it was practical to install a lifeline, this
citation item must be vacated.
(c) Serious Citation No. 1, Item No. 2
29 C.F.R. 1926.106(c): Ring buoys with at least 90 feet of fine were not provided and
readily available for emergency rescue operations.
A. MEMORIAL BRIDGE: RING BUOYS WITH AT LEAST 90
FEET OF LINE WERE NOT AVAILABLE FOR
EMERGENCY RESCUE WHEN WORKERS WERE
WORKING OVER WATER.
On June 3, 1993, the day following Mr. Springer’s fall into the river, Compliance Officer
Varney inspected the worksite and observed a ring buoy in the rescue boat which, at that
point, was in the water tied up along the shore. The Compliance Officer did not observe
any other ring buoys at the site (Tr. 129, 130). There is no evidence in the record regarding
the presence or absence of ring buoys at the site on June 2, 1993, other than Mr. Springer’s
statement that a ring buoy was not thrown to him (Tr. 76). Thus, there is no evidence that
Respondent failed to comply with the above standard at the time Mr. Springer fell from the
bridge on June 2. There is evidence, however, that empIoyees were working on the bridge
over the river in a man basket on June 3 (Tr. 128, Ex. C-12). The Compliance Officer’s
testimony that no ring buoys were on the bridge on June 3 was not rebutted by Respondent.
Since the bridge was approximately 1000 feet long, and the standard requires that the
distance between ring buoys shall not exceed 200 feet, a minimum of five ring buoys were
’ Section 1926.104(b) provides: “Lifelines shall be secured above the point of operation to an anchorage
or structural member capable of supporting a minimum dead weight of 5,400 pounds.
9 Lifefine is defined at Section 1926.107(c) as “a rope, suitable for supporting one person, to which a
lanyard or safety belt (or harness) is attached.
IO
required to be placed on the bridge on June 3, 1993. Thus, the Secretary has established
the essential elements for the violation on that date.
The evidence reveals, however, that the exposed employees were wearing life vests
and the rescue boat was immediately availabIe in the water for rescue purposes. Moreover,
the Secretary has failed to provide any evidence that the failure to place ring buoys on the
bridge could have resulted in serious injury or death under the circumstances present at the
worksite. Thus, it is concluded that the alleged violation should be affirmed as an Other
Than Serious-violation. Secretary of Labor v. C. Erickson and Sons, I&., 15 BNA OSHC
1980 (1991); Secretary of Labor v. Pace Constnlctiorz Corp., 13 BNA OSHC 2161 (1989).
(d) Penalties
Section 17(j) of the Act requires that due consideration must be given to four criteria
i.n assessing penalties: the size of the employer’s business, gravity of the violation, good faith
and prior history of violations. In Secretary of. Labor v. IA. Jones Construction Company, 15
BNA OSHC 2201 (1993), the Commission stated:
These factors are not necessarily accorded equal weight;
generally speaking, the gravity of a violation is the primary
element in the penalty assessment. Ttinity hfu.~, hc., 15 BNA
OSHC 1481, 1483, 1992 CCH OSHD q29,582, p.40,033(No. 880
2691, 1992); Astra Pharmaceutical Prods., Ihe., 10 BNA OSHC
2070 (No. 7%6247), 1982). The gravity of a particular violation,
moreover, depends upon such matters as the number of
employees exposed, the duration of the exposure, the
precautions taken against injury, and the likeiihood that any
injury would result. Kw Turn Builders, hc., 10 BNA OSHC
1128, 1132, 1981 CCH OSHD 825,738, p.32,107 (No. 76-2644,
1981).
With respect to Willful Citation No. 1, Item No. 1, the Secretary has proposed a penalty of
$35,000. There is nothing in the record, describing the analysis employed by the Secretary
in arriving at that figure. The record establishes, however, that a high gravity factor should
be assessed in arriving at a penalty. Although there was a small number of employees
exposed to the hazard and the employer intended to maintain the rescue boat on the bridge
only until a barge was placed in the river, the precautions taken to rescue employees from
the river on June 2, 1993 were grossly inadequate. Moreover, it is concluded that the
11
likelihood of injury resulting from the failure to provide a readily available rescue craft was
high. Considerable weight is also given, to the employer’s lack of good faith. The record
clearly estabfishes that the employer was far more concerned about the safety of its boat
than for its responsibility to rescue employees from the river. Respondent’s representatives
at the worksite were fully aware of the need to have a rescue boat readily available, and
made a conscious, intentional decision not to fulfill that responsibility. For these reasons,
the penalty proposed by the Secretary is appropriate.
With respect to Respondent’s failure to provide ring buoys, it is concluded that the
gravity factor is low since the exposed employees were wearing life vests and the rescue boat
was readily available at the time the violation was observed by the Compliance Officer.
Therefore, a penalty of $100 is appropriate.
Findings of Facts
Findings of fact relevant and necessary to a determination of all issues have been
made above. Fed. R. Civ. P. 52(n). All proposed findings of fact inconsistent with this
decision are herebv J
denied.
Conclusions of Law
- Respondent is engaged in a business affecting commerce and has employees within
the meaning of Section 3(5) of the Act. - Respondent, at a13times material to this proceeding, was subject to the requirements
of the Act and the standards promuIgated thereunder The Commission hasjurisdiction of the parties and of the subject matter of this proceeding.- At the time and place alleged, Respondent willfully violated 29 C.F.R. 51926.106(d).
- At the time and place alleged, Respondent violated 29 C.F.R. §1926.106@) and said
violation was Other Than Serious. - At the time and place alleged, Respondent was not in serious violation of 29 C.F.R.
$1.926.28(a).
Order - Willful Citation No. 2, Item No. 1 is affirmed and a penalty of $35,000 is assessed.
- Serious Citation No. 1, item No. 2 alIeging a violation of 29 C.F.R. $1926.106(c) is
affirmed as an Other Than Serious violation and a penalty of $100 is assessed.1.23. Serious Citation No. 1, Item No. 1 alleging a violation of 29 C.F.R. 51926.28(a) is
vacated.
DATED: June 16, 1994
BOSTON, MASSACHUSETTS
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