Olympia Drywall Company, and its successors

Plain-English summary

Scrap lumber with protruding nails and other debris existed at Olympia Drywall's multi-employer construction site and presented tripping and puncture hazards. OSHA relied on employee statements to argue that Olympia workers entered the affected areas to reach restrooms or a food truck. Judge Robert A. Yetman found those routes speculative and the statements uncorroborated; one employee contradicted the compliance officer under oath, while the foreman, superintendent, and workers directly testified that Olympia employees did not enter the debris areas. Because OSHA did not prove actual or reasonably predictable access to the hazard, the serious citation and proposed $2,100 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.25(a).
• Outcome: Serious housekeeping citation vacated with no penalty.
• Key point: Admissible employee hearsay may carry little weight without corroboration, and a citation fails when predicted access rests only on speculation contradicted by direct testimony.

Full text (OSHRC public release)

                                                          |

SECRETARY OF LABOR, |
Complainant, |
|
v. |
|
OLYMPIA DRYWALL COMPANY, | OSHRC DOCKET
and its successors, | NO. 98-1981
Respondent. |
|

APPEARANCES:

      For the Complainant:
                      Danielle L. Jaberg and Margaret T. Cranford, U.S. Department of Labor, Office of the Solicitor,
                      Dallas, Texas.

      For the Respondent:
                      Russell Pae, Controller, Olympia Drywall Company, Houston, Texas

Before: Administrative Law Judge Robert A. Yetman

                                         DECISION AND ORDER

      This preceding arises under §10(c) of the Occupational Safety and Health Act of 1970, 29 USC

§651, et seq. (the Act) to review a citation issued by the Secretary of Labor pursuant to §9(a) of the Act
and a proposed assessment of penalty therein issued pursuant to §10(a) of the Act.
On November 4, 1998, Respondent, Olympia Drywall Company, was issued one Serious Citation
alleging a single violation of the standard set forth at 29 CFR 1926.25(a). The citation reads as follows:

      29 CFR 1925.25(a): During the course of construction, form on scrap lumber with protruding nails
      was not kept clear:
             (a) At the jobsite, 2X4's with protruding nails were not cleared.

      A penalty in the amount of $2,100 was proposed by the Secretary.

Respondent filed a timely notice of contest and this matter was assigned for EZ Trial proceedings
pursuant to Commission Rules 29 CFR 2200.200 et seq. A hearing was conducted on April 1, 1999 and,
in accordance with Commission Rule 209(f), a decision was issued from the bench vacating the citation
and proposed penalty. Findings of fact and conclusions of law as required by Commission Rule 90(a) are
set forth at transcript pages 118 to 125, as amended, attached hereto.
All findings of fact relevant and necessary to a determination of the contested issues have been
made as required by Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are denied.

                                             ORDER
     Serious Citation No. 1, Item No. 1, dated November 4, 1998, alleging a violation of 29 CFR

1926.25(a) and the penalty proposed thereto are vacated.

     SO ORDERED



                                                     Robert A. Yetman
                                                     Judge, OSHRC

Dated:

                                                 2

1 BENCH DECISION

2 JUDGE YETMAN: As I indicated to you earlier, EZ proceedings, unlike conventional
3 proceedings, encourages decision from the bench, and that’s no easy task in these cases. This case,
4 however, I believe is in a posture for ruling from the bench.
5 First of all, jurisdiction is admitted. The Respondent agrees that it is subject to the
6 provisions of the Act so that’s not an issue here.
7 This case involves a violation of 1926.25(a): essentially, whether Respondent’s
8 employees were exposed to debris and other hazardous materials at the worksite. The Secretary’s
9 burden in any case, and this case in particular, is fourfold. First, the Secretary has to establish that
10 the standard cited applies to the employer’s worksite; two, that the employer failed to comply with
11 the provisions of that standard; three, that employees had access to the cited condition; and four, that
12 Respondent knew or with the exercise of reasonable diligence could have known of the violative
13 condition. And I cite Astra Pharmaceutical at 681 F.2d, 69, First Circuit case, 1982, and Gary
14 Concrete Products, 15 BNA 1051.
15 The Secretary must establish this violation by preponderance of the evidence; that is,
16 that the conclusion to be reached from the facts is more probably true than false. It’s not a very
17 stringent burden for the Secretary to meet. In this case there seems to be no doubt that debris was
18 at the worksite in Exhibits 1 and 2. The Respondent does not deny that those conditions existed.
19 The conditions clearly represent a tripping hazard and possible puncture wounds as a result of the
20 protruding nails. It is not necessary, Mr. Pae, as you tried to argue, that the pointed end of the nail
21 must be protruding from the board. Reinforcing bars, for example, as you well know in construction
22 work, must be guarded. So, just falling on a nail, whether it’s at the pointed end or at the heard,
23 could cause a puncture wound or an injury.
24 There is no evidence on this record that the Respondent caused the hazardous
25 condition, but that’s not determinative of the issue. The issue is whether Respondent’s employees
26 were exposed to that hazard. Under the circumstances of this case, the Secretary has established that
27 the standard applies to the Respondent’s work activities. In other words, if Respondent’s employees
28 were exposed to the condition, then the hazardous condition should have been removed by the
29 Respondent, notwithstanding the fact that someone else may have created the hazard.
30 The other elements of the burden of proof create some problems. Secondly, did the
31 Respondent fail to comply with the terms of the standard; and thirdly, did the Respondent’s

                                                      3

1 employees have access to those hazardous conditions. Those two elements in this case are coupled
2 together. For an employee exposure, it is not necessary to establish actual exposure of the
3 employees to the hazard. To prove a violation, the evidence need only show that the employees in
4 the course of their duties will be, are, or have been in the zone of danger. In those cases where there
5 is no actual exposure, it is sufficient if the Secretary establishes that it is reasonably predictable that
6 the employees had access to the hazardous conditions. I cite Phoenix Roofing Company. It’s a
7 Review Commission case, 1993-95 CCH at Paragraph 30, 699.
8 At a multi-employer worksite such as here, the employer must show that it took
9 reasonable steps to protect its employees, even if it had not created the hazard. If the condition was
10 created by the carpenters or the electricians or the plumbers or any other craft on the job site, the
11 employer must make reasonable efforts, first, to discover those hazards and, secondly, correct the
12 hazards or bring them to the attention of the responsible parties to correct the hazards. In other
13 words, an employer cannot knowingly expose any of its employees to a hazardous condition even
14 if that employer has not created the hazard.
15 In this case the evidence in support of an employee exposure is based solely upon
16 employee admissions to the compliance officer. Employee admissions to the compliance officer are
17 admissible and, in many cases, the Secretary relies upon employees admissions to establish, at least
18 in part, elements of the case. The reason for that is that these statements are related to the
19 employee’s work activity and, therefore, are admissible. However, as I indicated before, employee
20 admissions, with nothing more, is a weak case, if that’s the only evidence that the Secretary is
21 relying upon. And why is that?
22 Well, first of all, there’s no way to test the accuracy of the compliance officer’s
23 recollection of the statement, or his interpretation of that statement. Secondly, the employee making
24 the statement isn’t available for cross examination. So we have to take the compliance officer’s
25 interpretation of the statement at face value. Now, again, even though it’s admissible, it is not
26 entitled to great weight unless there is some corroborative evidence in support of those statements.
27 In this case, one of the employees who allegedly made a statement to the compliance
28 officer was on the stand and contradicted what the compliance officer has said. So that person’s
29 testimony is totally discredited, based upon what the compliance officer has said with respect to
30 those statements at the worksite and what the employee has said under oath here today. The only
31 other testimony presented by the Secretary is the testimony of Javier -- I guess I’m pronouncing it

                                                     4

1 right -- Martinez, the cousin of the person who testified here today. That person is not present and
2 there’s no way to test the accuracy of whatever statement that person made to the compliance officer
3 at the worksite.
4 The test, as I indicated before, to establish a violation under the standard is a fairly
5 easy one to meet. All the Secretary need establish is that employees -- It is reasonable predictable,
6 reasonably predictable, that the employees will have access to the hazard. The Secretary offers two
7 theories here. One, that employees had to go to the restroom facilities during the day and, therefore,
8 had to go through the areas where debris was located. Secondly, the taco truck arriving on a daily
9 basis and the employees breaking from their work activities to go to the taco truck for their break.
10 This is strictly speculation by the compliance officer. There’s no direct evidence that anyone ever
11 did this. On the other hand, we have testimony from the employees and also the superintendent and
12 the foreman that the employees were never in the areas where debris had accumulated.
13 This case illustrates the risk of relying solely upon employee admissions to the
14 compliance officer. Based upon this record, the Secretary has failed to establish by a preponderance
15 of the evidence that employees indeed were exposed or likely to be exposed to the hazardous
16 conditions at the worksite. The only evidence in support of the Secretary’s case here is an
17 uncorroborated admission by one employee to the compliance officer; at least credible evidence.
18 However, the evidence on the other side of the equation from the Respondent’s witnesses is direct,
19 it’s affirmative and it hasn’t been attacked successfully during cross examination.
20 Accordingly, I find that the Secretary has failed to establish employee exposure to
21 the hazardous conditions and that the citation is vacated.
22 That will end this matter. Thank you very much.
23 [Whereupon, the hearing was closed.]

                                         5