Micron Construction, Inc.

Plain-English summary

Micron Construction, Inc. was the construction manager on a Meridian, Idaho project. A January 1997 OSHA inspection caught employees of its steel subcontractor, Hansen & Rice, in three fall-protection lapses: one worker tied his lanyard to another worker's retractable lifeline about 40 feet up, one used only a single lanyard, and one rode an aerial lift 16 feet up without tying off. Hansen was cited and paid its fines. OSHA also cited Micron as the controlling contractor, but Micron's own employees were not involved, so the only question was whether Micron knew or with reasonable diligence should have known of the violations. The judge found Micron had a strong fall-protection program, discussed it at pre-construction meetings, visited daily during steel work, and had always seen Hansen employees properly tied off. Two brief violations did not put Micron on notice of a pattern, and due diligence did not require it to duplicate the subcontractor's supervision. Because the Secretary failed to prove knowledge, all three citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.95(a) (PPE used as manufacturer intended); 29 C.F.R. § 1926.105(a) (safety nets); 29 C.F.R. § 1926.453(b)(2)(v) (body belt and lanyard on aerial lift)
• Outcome: All three citation items vacated; no penalty assessed. (Citation 1, item b was withdrawn by the Secretary at hearing.)
• Key point: A controlling contractor with a solid, monitored fall-protection program is not chargeable with constructive knowledge of a subcontractor's brief, transitory violations absent notice of a pattern.

Full text (OSHRC public release)

SECRETARY OF LABOR,
                        Complainant,

                              v.                               OSHRC DOCKET NO. 97-0245
MICRON CONSTRUCTION, INC.,
                         Respondent.


APPEARANCES:

          For the Complainant:
                   Cathy L. Barnes, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

          For the Respondent:
                   Mark A. Redford, Esq., Micron Construction, Boise, Idaho

Before:            Administrative Law Judge: Benjamin R. Loye

                                             DECISION AND ORDER

          This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section
651 et seq.; hereafter called the "Act").
          Respondent, Micron Construction, Inc. (Micron), at all times relevant to this action maintained a
place of business at 3000 W. Pine, Meridian, Idaho, where it was engaged in construction. Respondent
admits it is an employer engaged in a business affecting commerce and is subject to the requirements of the
Act.
          On January 14, 1997 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Micron's Meridian work site. As a result of that inspection, Micron was issued citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest Micron
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
          On August 21, 1997, a hearing was held in Boise, Idaho. At the hearing, the Secretary withdrew
citation 1, item b (Tr. 7). The parties have submitted briefs on the remaining issues and this matter is ready
for disposition.

                                            Alleged Violations

         Citation 1, item 1 alleges:

29 CFR 1926.95(a): Personal protective equipment was not used as the manufacturer intended.

         (a)    At 3000 Pine, in Meridian, ID: A subcontractor's employee attached his lanyard to the cable
                of another subcontractor's employee's self-retracting life line while they both were working
                approximately 40 feet above the ground. The action exposed both employees to injury in
                the event that one of them fell.

         Citation 1, item 2 alleges:

29 CFR 1926.105(a): Safety nets were not provided when workplaces were more than 25 feet above the
ground or water surface, or other surface(s) where the use of ladders, scaffolds, catch platforms, temporary
floors, safety lines, or safety belts was impractical:

         (a)    At 3000 Pine in Meridian, ID: A subcontractor's employee was using a one lanyard fall
                protection system when bolting perlins to a beam exposing himself to approximately a 40
                foot fall when he moved to a new work position.

         Citation 1, item 3 alleges:

29 CFR 1926.453(b)(2)(v): A body belt and lanyard was not attached to the boom or basket when working
from an aerial lift:

         (a)    At 3000 Pine I (sic) Meridian: A subcontractor's employee was working in a JLG aerial lift
                and did not have his lanyard attached to the hardened point, exposing himself to approxi-
                mately a 16 foot fall to the frozen ground below.

Facts:

         Micron is a construction management organization (Tr. 146). Its own employees were not involved
in the incidents on which the citations were based; the alleged violations were committed by employees of
Micron's structural steel subcontractor, Hansen & Rice (Hansen). The facts of those violations are not
seriously disputed. Hansen was cited for the same violations that are at issue in this matter, and paid the
fines assessed by the Secretary (Tr. 76).
                Employee 1, items 1 and 2. On January 14, 1997, OSHA Compliance Officer(s) Virgle
Howell and Steve Gossman observed a Hansen employee on the steel at the Meridian site, approximately
40 feet above the ground (Tr. 23, 25, 27). The employee had a single lanyard attached to his safety belt;
the lanyard was attached to the retractable lifeline of another steel worker (Tr. 23, 219)[1]. The parties agree
that that two lanyards or a retractable lifeline are required to provide 100% fall protection for steel workers
moving on the steel (Tr. 76). It is undisputed that the manufacturer prohibits the practice of tying off two
lanyards to a single retractable lanyard (Tr. 24-25).
        Employee 2, item 3. A Hansen employee was observed riding in the basket of an aerial lift 16 feet
above the ground without having attached his lanyard to the boom basket (Tr. 41-43, 64, 160).
        Knowledge. Ronald Hatch, Micron's safety director, testified that Micron develops a
comprehensive safety program for each of its projects (Tr. 143; Exh. R-4). The project specific program
that was included in Hansen's contract with Micron explained Micron's 100% fall protection policy for
employees working six or more feet above the ground, and specifically stated that the 100% policy was
applicable to steel erection (Tr. 144-45; Exh. R-4, p. 5). Micron expected their subcontractors to have their
own safety programs in addition to the Micron program, and did ascertain that Hansen had such a program
(Tr. 146).[2] Under the terms of their contract, Micron had the right to stop work in the event that Hansen
failed to take timely action to correct any safety deficiencies discovered (Tr. 169). Micron further had the
right to terminate the contract for repeated violations (Tr. 170).
        Micron discussed fall protection with Hansen at pre-construction meetings on December 12, 1996
and January 3, 1997 (Tr. 155-56). Micron suggested substituting retractable lanyards for a two lanyard
system, to facilitate tying off 100% of the time (Tr. 177).
        Micron did not assign a full time safety person to the Meridian job; however, either Hatch or another
Micron safety technician, Fred Grimes, visited the project every day there was steel erection activity going
on (Tr. 185-88). A project manager, the project engineer, the project superintendent and assistant
superintendent were on site full time (Tr. 189). Hatch testified that he and other members of Micron
management observed Hansen employees working from aerial lifts prior to the cited incident; all such
employees were tied off (Tr. 175). During the steel work Hatch observed, steel workers moved on the steel
with two lanyards or with a retractable life line (Tr. 179).

           [1] Micron speculates that employee 1 was tied off to a perlin when CO Howell arrived on the site, and
   only clipped on to the retractable when confused by the CO's questions, yelled up to him from the ground (Tr.
   235). No evidence was submitted in support of this theory. No Micron personnel were present during this portion
   of the inspection, and nothing in the CO's videotape supports Micron's contention.

           [2] At the hearing, Complainant elicited contradictory testimony regarding Hansen's safety program,
   gleaned from the CO's interviews with Hansen employees. Such evidence is hearsay, not subject to the exception
   provided at Fed. R. Evid. 801(d)(2)(D), which applies only to statements of agents of a party opponent.
   Respondent properly objected to the admission of all hearsay testimony, and such testimony is excluded.

        During the inspection, John Schafer, the project superintendent, was in Micron's construction trailer
working on a meeting schedule (Tr. 217-18). Schafer had made some walk-throughs that day (Tr. 224),
but had not seen any Hansen employees on the steel with a single lanyard (Tr. 37). Nor had he observed
the Hansen employee in the man basket (Tr. 44). Schafer testified that Owen Shirley, the assistant
superintendent, also conducted walk-throughs of the site, but was at lunch at the time of the OSHA
inspection (Tr. 221-22).

Discussion

        The sole issue in this case is whether the Secretary established Micron's knowledge of the cited
violations.[3] In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show, by a
preponderance of the evidence, that the cited employer either knew or could have known of the condition
with the exercise of reasonable diligence. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074,
1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991). The evidence establishes that Micron was
not present during, and had no actual knowledge of the cited conditions. Complainant, however, maintains
that Micron had constructive knowledge in that it failed to exercise due diligence in anticipating the cited
hazard and preventing its occurrence. See; Frank Swidzinski Co., 9 BNA OSHC 1230, 1233, 1981 CCH
OSHD ¶25,129, p. 31,032 (No. 76-4627, 1981). This judge does not agree.
        Complainant introduced no evidence suggesting that Micron failed to exercise due diligence in its
oversight of Hansen's fall protection program. To the contrary, the evidence shows that Micron took an
active role in investigating Hansen's safety program and suggesting improvements to assure that 100% fall
protection would be provided. Micron monitored Hansen's performance on the work site, and found it to
be satisfactory. Nothing in the record suggests that Micron was on notice that closer supervision was
required to assure Hansen's compliance with its fall protection policy.
        Complainant argues that two Hansen employees were simultaneously exposed to fall hazards,
suggesting lax enforcement of the 100% fall protection policy. This judge declines to infer from these two
transitory violations that Hansen's employees committed such infractions routinely, which conduct would
have put Micron on notice of problems with Hansen's enforcement of its fall protection policy. In the
absence of notice that Hansen's employees were disregarding fall protection policies, due diligence did not
require Micron to duplicate the safety efforts of its subcontractor, whose duty it is to closely supervise its

           [3] Micron maintains that OSHA did not have probable cause to conduct the inspection which resulted in
   the citations at issue. Probable cause is required to procure a warrant in cases where an employer refuses OSHA
   entry to its work site. No showing of probable cause is required in a consensual inspection. Micron does not claim
   that this inspection was non-consensual. Probable cause, therefore, is not at issue.

own employees in the performance of their work. See, Blount International Ltd., 15 BNA OSHC 1897,
1900, fn. 4, 1992 CCH OSHD ¶29,854 (No. 89-1394, 1992). The Secretary has not shown, by a
preponderance of the evidence, that due diligence required Micron to continuously monitor Hansen's
employee.
         The Secretary has not established that Micron knew, or should have known of the cited violations.
The citation must be vacated.

                                                 ORDER

1.       Citation 1, item 1, alleging violation of §1926.95(a) is VACATED.

2.       Citation 1, item 2, alleging violation of §1926.105(a) is VACATED.

3.       Citation 1, item 3, alleging violation of §1926.453(b)(2)(v) is VACATED.




                                                         Benjamin R. Loye
                                                         Judge, OSHRC

Dated: