D. A. Collins Constr. Co., Inc.
Foreman's tie-off violations defeated misconduct defense
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This order from 1996 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Collins carpenters stripped bridge formwork from a temporary platform 34 feet above the ground. A carpenter fell from the bridge and died, and OSHA cited the company for fall-protection violations. Two carpenters routinely crossed the unguarded platform without tying off, and their foreman observed and followed the same practice. Although Collins had communicated a full tie-off rule and had disciplined other workers, the foreman's repeated conduct showed that this violation was not unforeseeable employee misconduct. The remaining fall-protection item was affirmed as serious, and a $3,000 penalty was assessed. Two other items had been withdrawn, and a scaffold item was dismissed at the hearing.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.105(a); alternatively, 29 C.F.R. § 1926.451(a)(4); dismissed item under 29 C.F.R. § 1926.451(a)(12)
- Outcome: The remaining serious fall-protection item was affirmed, and a $3,000 penalty was assessed.
- Key point: Repeated tie-off violations known to and committed by a foreman are not unpreventable employee misconduct.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
. Phone: (202) 606-5400
Fax: (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-0670
D. A. COLLINS CONSTRUCTION CO., 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 September 20, 1996. The decision of the Judge
will become a final order of the Commission on October 21, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
October 11 , 1996 in order to ermit su&icient time for its review. See
Commission Rule 91, 29 C.F. ii . 2200.91. .
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
’ Occupational Safety and Health
Revrew 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 Liti ation
Office of the Solicitor, U.S. DO8,
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 the Department of Labor. hY party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COM
Date: September 20, 1996
DOCKET NO. 95-0670
NOTICE IS GIVEN TO THE FOLLOWING:
Patricia M. Rodenhausen
Re ‘onal Solicitor U S DOL
2Of?Varick Street ’ Rdo& 707
New York, NY 16014
Ronald G. Dunn, Es uire
Gleason, Dunn, UralsR & O’Shea
102 Hackett Blvd.
Albany, NY 12209
Paul L. Brady
Administrative Law Jud e
Occupational Safe9 an B Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00101551232:02
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119
Phone: (404) 347-4197 Fax: (404) 347-0113
.
.
SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC Docket No. 95-670
.
D. A. COLLINS CONSTRUCTION CO., INC.,
Respondent.
APPEARANCES
Steven D. Riskin, Esq. Ronald G. Dunn, Esq.
CXfice of the Solicitor Gleason, Dunn, Walsh & O’Shea
U. S. Department of Labor Albany, New York
New York, New York For Respondent
For Complainant
Before: Administrative Law Judge Paul L. Brady’
DECISION AND ORDER
D. A. Collins Construction Company, Inc. (Collins), is a construction contractor
headquartered in Mechanicville, New York. During 1993 and 1994, Collins was engaged in a
project rebuilding a New York State Thruway in Herkimer, New York. On October 3 1, 1994,
Collins’s carpenter Stan Matusz fell to his death while working on the bridge. Occupational Safety
and Health Administration (OSHA) compliance officers Bill Marzeski and Ronald Williams
investigated the fatality. As a result of their investigation, the Secretary issued a citation to Collins
’ Judge Barbara Hassenfeld-Rutberg heard this case on December 4, 1995. After the hearing, Judge
Hassenfeld-Rutberg’s case was reassigned to Judge Paul L. Brady “to issue a decision therein based on all the
evidence of record.”
on March 10,1995. The citation contained four items alleging serious violations of the Occupational
Safety and Health Act of 1970 (Act), all of which Collins contested.
Prior to the hearing in this cause, the Secretary withdrew Items 1 and 2 of the citation (Tr. 7).
The Secretary presented evidence on Items 3 and 4 at the hearing. At the close of the Secretary’s
case, Collins moved to dismiss Items 3 and 4 (Tr. 121). Judge Hassenfeld-Rutberg granted
Collins’s motion with regard to Item 4, which alleged a violation of 6 1926.45 l(a)( 12)(Tr. 134).
Left for disposition is Item 3, which alleges a violation of 6 1926.1OS(a) or, in the alternative, of $
.
1926.45 1(a)(6).
Background
Starting in September and continuing through October, 1994, carpenters working beneath
the bridge were removing, or Wripping,” the plywood sheets and aluminum spanalls used in forming
the bridge’s concrete road deck (Tr. 11-13, 141, 165-166). James Meyers was Collins’s carpenter
superintendent on the project. Meyers had three foremen under him, each of whom was supervising
a crew of eight to ten carpenters. The carpenters worked in groups of wo or three, stripping the
formwork (Tr. 140, 149-160-161). Bob Rapp was the foreman for a two-person group consisting
of carpenters Barbra Foster and Stan Matusz (Tr. 160-l 61).
During the week of October 24, 1994, Barbara Foster and Stan Matusz built a temporary
platform 34 feet above the ground. The platform was made from the plywood sheets and aluminum
spanalls of the formwork the carpenters were dismantling from beneath the bridge’s road deck (Tr.
12, 14,23,57-58). On October 3 1, 1994, the platform was 100 feet long from its starting point to
the leading edge. The platform narrowed from 8 feet to 4 feet wide (the width of a single plywood
sheet) within the first 50 feet (Exh. C-l; Tr. 21,24-26,36-37, 141). There were openings of corn
1% to 2 feet between the bridge girders and the sides of the four-feet wide platform (Tr. 25.27,118).
The platiorm was not guarded with guardrails (Tr. 27). Foster and Ma-z wore safety belts
and each was equipped with two lanyards (Tr. 28). Collins has a written work rule which states:
[A]11D. A. Collins employees are required to tie off 100% of the time whenever they
are working or accessing work areas where there is a potential of falling 6 feet or
greater.
(Exh. R-48). Neither Foster nor Matusz tied off when they were walking along the platform on their
way to lunch or to breaks (Tr. 33-34).
Item 3: Alleged Serious Violation of 6 1926.105(a), or. in
the Alternative. of 5 1926.45 1(a)(4)
The Secretary alleges that Collins committed a serious violation of $ 1926.105(a), which
provides:
Safety nets shall be provided when workplaces are more than 25 feet above the
ground or water surface, or other surfaces where the use of ladders, scaffolds, catch
platforms, temporary floors, safety lines, or safety belts is impractical.
In the alternative, the Secretary alleges that Collins committed a serious violation of
5 1926.45 1(a)(4), which provides:
Guardrails and toeboards shall be installed on all open sides and ends of platforms
more than 10 feet above the ground or floor, except needle beam scaffolds and floats
(see paragraph (p) and (w) of this section) Scaffolds 4 feet to 10 feet in height,
having a minimum horizontal dimension in either direction of less than 45 inches,
shall have standard guardrails installed on all open sides and ends of the platform.
Section 1926.105(a)
While 6 1926.105(a) ostensibly addresses safety nets, the Occupational Safiety and Health
Review Commission (Commission) has consistently held that the standard does not require the use
of safety nets. Section 1926.1 OS(a) requires the use of any one of the enumerated methods of fall
protection. RGiWConstruction Co., 17 BNA OSHC 1229 (No. 91-2107, 1995).
The Secretary has the burden of proving his case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or with the exercise of reasonable diligence,
could have known of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 213 1,2138 (No. 90-1747, 1994).
It is undisputed that 0 1926.105(a) applies to Collins’s worksite on the bridge. It is also
undisputed that Foster and Ma-z were not using fall protection when walking to and from the area
3
where they were working, in noncompliance with the standard. By failing to use fall protection,
Foster and Matusz were exposed to a fall of 34 feet. Their foreman, Bob Rapp, visited the worksite
on a daily basis during the week of October 24. He observed Foster and Matusz walking along the
platform without tying off. Rapp himself did not tie off while moving along the platform (Tr. 33.
34). As foreman, Rapp’s knowledge that he and his crew did not tie off can be imputed to Collins.
Pride Oil WeZZ
Service, 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).
The Secretary has established aprima facie case for Collins’s violation of 0 1926.1 OS(a).
Collins asserts that it was not in violation of 6 1926.1OS(a) because any noncompliance with the
standard was the result of unpreventable employee misconduct.
UnDreventable Emplovee Misconduct Defense
To establish the affirmative defense of unpreventable employee misconduct, the employer
must prove: “(1) that it has established work rules designed to prevent the violation; (2) that it
adequately communicated these rules to it employees; (3) that it has taken steps to discover
violations; and (4) that it has effectively enforced the rules when violations have been discovered.”
Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-237, 1996).
At the hearing, the Secretary stipulated that Collins established the first two elements of the
affirmative defense: Collins had an established work rule requiring the use of fall protection, and it
effectively communicated this work rule to its employees (Tr. 7). Collins must prove that it had
taken steps to discover violations and that it effectively enforced the tie-off rules when violations
were discovered.
Collins maintains that it enforced its 100% tie-off rule. It offers as evidence of its
enforcement Exhibit R-44, which consists of five warning notices to ironworkers working for Collins
in September, 1993 (Tr. 191). James Meyers, Collins’s carpenter-superintendent, testified that he
witnessed project manager Don Hathaway fire an ironworker for not tying off (Tr. 150-l 5 1). Meyers
stated that employees were told “they were either tied off a hundred per cent; they’d get a warning.
After that, it was dismissal, because we didn’t want anybody to get hurt and we were looking out for
their safety” (Tr. 15 1).
Collins’s evidence of enforcement is undercut by Foster’s uncontradicted testimony that
foreman Bob Rapp was aware that she and Matusz did not tie off while walking along the platform,
and that Rapp himself did not tie off. Rapp was a supervisory employee.
[where a supervisory employee is involved, the proof of unpreventable employee
misconduct is more rigorous and the defense is more difficult to establish since it is
the supervisor’s duty to protect the safety of employees under his supervision.
L. E. Myers Co., 16 BNA OSHC 1037,104l (No 909945,1993)
Collins failed to meet the rigorous standard of proof raised when a supervisory employee
commits a violative act. In the present case, two of Collins’s employees violated 6 1926.105(a) on
a daily basis for at least a week. Their violative conduct was observed and duplicated by their
foreman. This is not an example of idiosyncratic, unforeseeable behavior on the part of employees.
Rather, it was routine behavior condoned by Collins’s foreman.
Collins has failed to establish its unpreventable employee misconduct defense. Collins
violated 0 1926.1OS(a). The citation alleges a serious violation. A violation is serious under 6 17(k)
of the Act if “an accident is possible and there is a substantial probability that death or serious
physical harm could result from the accident.” Consolidated Freight-way Corp., 15 BNA OSHC
13 17, 1324 (No. 86-35 1, 1991). The Secretary established a serious violation.2
Because Collins was found in violation of $ 1926.105(a) it is unnecessary to address the
alternative alleged violation of 8 1926.45 1(a)(4).
2 Collins argues that, if a violation is found, it should be de minimis.
A de minimis violation is one having no “direct or immediate” relationship to
employee safety; normally that classification is limited to situations in which the
hazard is so trifling that an abatement order would not significantly promote the
objectives of the Act.
Dover EZevator Co., 15 BNA OSHC 1378, 1382 (No. 88-2642, 1991). In the present case, the hazard is not
trifling. The hazard is a fall from a height of 34 feet. The violation is not de minimis.
5
Penaltv Determination
The Commission is the final arbiter of penalties in all contested cases. Under 8 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
Collins had a maximum of 99 employees (Tr. 113). Collins had a history of OSHA
violations (Tr. 114). No evidence of bad faith was presented. The gravity of the violation is high.
A fall from a height of 34 feet can be fatal, as it was in this case. Upon due consideration of these
factors, it is determined that the proposed penalty of $3,000 is appropriate.
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).
Based upon the foregoing decision, it is hereby ORDERED:
Item 3 of the citation, alleging a violation of 5 1926.105(a), is med and a penalty in the
amount of $3,000 is hereby assessed.
Date: August 20, 1996
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