Thiro USA, Inc.

Plain-English summary

Thiro USA is an electrical utility construction company. During a November 1999 inspection at a utility-pole worksite in Everett, Massachusetts, an OSHA compliance officer saw two Thiro employees working from the elevated end of a derrick truck boom, at least 15 feet up, without fall protection, which was lying on the ground nearby. OSHA issued a two-item serious citation: failing to train employees in recognizing and avoiding unsafe conditions (29 C.F.R. 1926.21(b)(2)) and allowing work at an elevated location without fall protection (29 C.F.R. 1926.951(b)(1)). Thiro argued it reasonably relied on the union that supplied the workers to train them, and that the missing fall protection was unpreventable employee misconduct. Administrative Law Judge Ann Z. Cook rejected both defenses. She found Thiro's reliance on union training unreasonable because it took no steps to verify the workers' training or emphasize the job's hazards, and that Thiro had not adequately communicated or enforced its own safety rules. She affirmed both items as serious violations and assessed penalties of $1,000 for the training item and $3,000 for the fall-protection item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.951(b)(1)
• Outcome: Both serious citation items affirmed; penalties assessed at $1,000 (training) and $3,000 (fall protection).
• Key point: An employer cannot rely on a union's general training to satisfy its own duty to train and supervise; to claim unpreventable employee misconduct it must verify workers' training and actually enforce its safety rules.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,

  Complainant,

      v.

THIRO USA, INC.,

  Respondent.

OSHRC Docket No. 00-0044

APPEARANCES:

      For the Complainant:
             Kevin E. Sullivan, Esquire, U.S. Department of Labor, Office of the Solicitor, JFK
             Federal Building, Boston, Massachusetts 022203

      For the Respondent:
             Joseph Rubino, Assistant General Manager, Thiro USA, Inc., 127 Costello Road,
             Newington, Connecticut 06111

Before: Administrative Law Judge Ann Z. Cook

                                 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”). Respondent, Thiro USA, Inc. (“Thiro”), is a corporation engaged
in electrical utility construction. On November 23, 1999, the Occupational Safety and Health
Administration (“OSHA”) conducted an inspection at a Thiro work site in Everett, Massachusetts.
As a result of the inspection, OSHA issued Thiro a two-item serious citation. Thiro filed a timely
notice of contest, the case was designated for E-Z Trial pursuant to Commission Rule 203(a), and
the hearing in this matter was held in Boston, Massachusetts on July 19, 2000.
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   Thiro acknowledges that it is an employer engaged in a business affecting interstate commerce

and that it is an employer within the meaning of section 3 of the Act. Accordingly, the Commission
has jurisdiction over the parties and the subject matter. (Tr. 5).
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                               THE BURDEN OF PROOF
   To establish a violation of a standard, the Secretary has the burden of proving, by a

preponderance of the evidence:
(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 2131, 2138 (No. 90-1747, 1994).
DISCUSSION
The citation alleges that Thiro violated 29 C.F.R. § 1926.21(b)(2) by failing to train its
employees in the recognition and avoidance of unsafe conditions and 29 C.F.R. § 1926.951(b)(1) by
allowing its employees to work at an elevated location without fall protection. Thiro argues that it
reasonably relied upon the union that provided the employees to train them and that the failure to use
fall protection at the work site was due to unpreventable employee misconduct.
The facts are generally uncontroverted. On November 23, 1999, compliance officer Daniel
Cargill (“the CO”) visited Thiro’s work site where it was repairing and replacing utility poles. As he
approached by car, the CO observed two Thiro employees without fall protection standing on the
elevated end of a derrick truck boom to work on a secondary wire. The employees, Scott Ryan and
Joseph Michelin, were wearing hard hats and rubber gloves; however, only one wore any eye
protection and neither wore fall protection, which remained on the ground nearby. Kenneth Mackie,
their foreman, had instructed the two to climb the boom and remained nearby while they did so. Both
employees were exposed to a fall of at least 15 feet. (Tr. 6-7, 18-23, 29-36, 46-62, 67-75; C-2-C-5).
Thiro had hired Ryan, Michelin and Mackie from a local union hall about three weeks earlier.
All three employees had received formal safety training through the union, including an OSHA 500
course which had at least one hour of instruction on general fall protection at construction sites;
however, Ryan and Michelin were still apprentices and were limited in the work they could do
without the foreman present. On their first day of work, Orin Reed, Thiro’s general foreman, had
provided each employee with personal protective equipment and a copy of the company’s safety
manual. Reed visited the work site once a week, and Paul Loughran, a union safety officer, made four
impromptu visits and found nothing amiss. Each morning, the employees had a job site meeting at
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which safety was incidentally discussed. The day after the inspection, Reed met with the three
employees but gave none of them a written reprimand. All three employees were laid off when the
job was completed a few weeks later. (Tr. 30-46, 49-63, 68-77, 83-85; R-2, R-4, R-6, R-9, R-11).
After questioning Mackie and the two employees about their work, the CO concluded that
they were poorly informed about safe fall protection practices and OSHA requirements. Both the CO
and Loughran considered climbing the boom dangerous, and, upon consideration, Mackie agreed.
Ryan, on the other hand, did not consider it unsafe to climb the boom. In regard to eye protection,
the CO testified that without safety glasses an employee’s eyes could have been burned or otherwise
injured from an unanticipated electrical arc or contact. (Tr. 24-29, 55, 77, 87).
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.21(b)(2)
Section 1926.21(b)(2) provides:
The employer shall instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to control or
eliminate any hazards of other exposure to illness or injury.
Thiro acknowledges that it did not train Mackie, Ryan and Michelin, but it relies upon the
union having done so. As noted above, all three employees had completed the OSHA 500 ten-hour
class and had therefore received at least one hour of general fall protection training. However, there
is no evidence that any of the three had received additional training on fall protection or on relevant
OSHA requirements. In addition, the three employees were hired for the particular job and had not
worked for Thiro before, and there is nothing to indicate that Thiro took any steps to ascertain how
well they were trained or to emphasize either the particular safety hazards the job presented or
specific safety practices Thiro expected to be followed on this job. Under these circumstances,
Thiro’s reliance on the union’s training was not reasonable.
Citation 1, Item 1 is affirmed, and, because the condition could have resulted in electrical
shock and/or a fall of 15 or more feet, this item is affirmed as a serious violation.
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.951(b)(1)
Section 1926.951(b)(1) specifies that “body belts with straps or lanyards shall be worn to
protect employees working at elevated locations on poles, towers, or other structures” except when
it would create a greater hazard. Thiro does not contest that it violated the standard when the two
employees, at the direction of their foreman, climbed and worked from the boom without any type
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of fall protection, subjecting them to a fall hazard of 15 or more feet. Instead, it asserts that the
violation was due to unpreventable employee misconduct.
To prevail in this affirmative defense, Thiro has the burden of showing: (1) that it had a work
rule designed to prevent the violation; (2) that it had adequately communicated the rule to its
employees; (3) that it had taken steps to prevent violations of the rule; and (4) that it had effectively
enforced the rule when violations were discovered. Precast Services, Inc., 17 BNA OSHC 1454,
1455 ( No. 93-2971, 1995), aff’d without published opinion, 106 F.3d 401 (6th Cir. 1977). Although
Thiro had safety rules which could have prevented the violation, they were not adequately
communicated to employees. The testimony of Mackie and Ryan establishes that it is very unlikely
that they ever read any of Thiro’s safety rules. Thiro took no steps to assure employees did more than
accept the safety materials they were given on their first day on the job. Safety rules were not
routinely or thoroughly discussed at daily job site meetings or any other meetings. Clearly, Thiro did
not effectively communicate its safety rules to its employees. Thiro also has not demonstrated that
it effectively enforced infractions of safety rules when they were discovered. The testimony of Mackie
and Ryan establishes that they considered their disregard of safety requirements to be of little
consequence and of no lasting importance. Whatever Reed said to them did not have the effect of a
meaningful reprimand. I find that Thiro has failed to meet its burden of demonstrating unpreventable
employee misconduct.
In a similar argument, Thiro asserts that it should not be penalized for the employees’
conscious disregard of safety requirements when it had no choice but to hire from the union hall and
the employees themselves suffered no adverse consequences. This argument might have some merit
if Thiro had supervised the employees more closely, taken steps to ascertain they were adequately
trained, and imposed meaningful discipline. However, under the circumstances of this case, Thiro’s
argument is rejected.
Citation 1, Item 2 is affirmed, and, since a fall from the boom could have resulted in death or
serious injury, this item is affirmed as a serious violation.

                                         PENALTIES

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   Section 17(j) of the Act, 29 U.S.C. § 666(j), states that penalty assessment requires due

consideration to be given to the gravity of the violation and to the employer’s size, good faith and
prior history of OSHA violations. Gravity, usually the most significant factor, is judged by the number
of employees exposed, the duration of the exposure, precautions taken against injury, and the
likelihood that any injury would result. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-
2059, 1993).
The Secretary has proposed a $1,100.00 penalty for Citation 1, Item 1, the training violation,
and a $3,500.00 penalty for Citation 1, Item 2, the fall protection violation. With respect to the fall
protection violation, I assess the gravity to be moderately high. The violation lasted but a few minutes
and involved only two employees. However, the likelihood of falling was increased by the possibility
of bumping into a wire and receiving an electrical shock, and a fall of 15 feet or more to the street
below would have resulted in serious injury. Thiro employs 120 to 150 workers, and no evidence of
any previous OSHA violations was introduced. There is also no evidence that Thiro has taken any
steps to avoid reoccurrence of the violation. Considering these factors, I conclude that a penalty of
$3,000.00 is appropriate.
The training violation involved an additional employee but less likelihood of an immediate
injury. On the other hand, the high potential for life-threatening injury inherent in work involving
high-voltage electrical wires requires a finding of at least moderate gravity. I conclude that a penalty
of $1,000.00 is appropriate for this citation item.
FINDINGS OF FACT
The foregoing constitutes my findings of fact in accordance with Federal Rule of Civil
Procedure 52(a). Any proposed findings of fact inconsistent with this decision are hereby denied.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction of this matter pursuant to section 10(c) of the Act.
2. Respondent was in serious violation of 29 C.F.R. 1926.21(b)(2), and a penalty of $1,000.00
is appropriate.
3. Respondent was in serious violation of 29 C.F.R. 1926.951(b)(1), and a penalty of
$3,000.00 is appropriate.
ORDER
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  On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
  1. Item 1 of Citation 1 is affirmed, and a penalty of $1,000.00 is assessed.
  2. Item 2 of Citation 1 is affirmed, and a penalty of $3,000.00 is assessed.




                                                 /s/

                                                Ann Z. Cook
                                                Judge, OSHRC

Dated: 21 AUG 2000
Washington, D.C
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