Yonkers Contracting Co., Inc.

Plain-English summary

Yonkers employees worked over the East River during rehabilitation of the Manhattan Bridge, but no lifesaving skiff was immediately available. The judge affirmed that item because the skiff requirement applied even where bridge workers otherwise had fall protection. A separate fall-protection item involving a mechanic's use of an unprotected walkway was vacated because Yonkers had extensive inspections, training, and safety oversight and the Secretary did not prove actual or constructive knowledge. The Commission affirmed the judge's decision, leaving a $1,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.106(d); 29 C.F.R. § 1926.501(b)(1)
• Outcome: The lifesaving-skiff item was affirmed with a $1,500 penalty, and the walkway fall-protection item was vacated.
• Key point: A fall-protection violation cannot be sustained without employer knowledge when the record shows reasonable inspections, training, and oversight and identifies no additional diligent measure the employer should have taken.

Full text (OSHRC public release)

Yonkers contracting CO., Inc., Docket No. 00-2011

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 00-2011

YONKERS CONTRACTING CO., INC.,

Respondent.

DECISION

Before: RAILTON, Chairman, and ROGERS, Commissioner.

BY THE COMMISSION:

At issue in this case is whether the Secretary proved that Yonkers Contracting Co.,
Inc. (“Yonkers”), a heavy and highway construction company, violated 29 C.F.R.
§ 1926.501(b)(1) by exposing its employees to fall hazards at a reconstruction project on the
Manhattan Bridge in New York.

Administrative Law Judge Irving Sommer vacated the
citation based on the Secretary’s failure to establish that Yonkers had actual or constructive
knowledge of the violative conditions.

Having reviewed his decision, the record, and the
briefs of the parties, we affirm the judge’s decision.

/s/

W. Scott Railton

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated: December 13, 2002

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 00-2011

YONKERS CONTRACTING CO., INC.,

Respondent.

Appearances:    Terrence Duncan, Esquire                                Stephen C. Yohay, Esquire

William Staton, Esquire                                   Elizabeth Haile, Esquire

New York, New York                                      Washington, D.C.  

For the Complainant.                                        For the Respondent.

Before:              Irving Sommer

Chief Administrative Law Judge

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”). The Occupational Safety and Health Administration ("OSHA")
inspected Respondent's work site on the Manhattan Bridge in New York City from May 2 through
June 28, 2000. After the inspection, OSHA issued Respondent a two-item serious citation alleging
violations of 29 C.F.R. §§ 1926.106(d) and 1926.501(b)(1).

The hearing in this matter was held in
New York City on September 5 and 6, 2001. Both parties have submitted post-hearing briefs and
reply briefs.

Factual Background

Yonkers Contracting Company, Inc. (“Yonkers”), a construction firm, contracted with the
New York City Department of Transportation (“NYC DOT”) to rehabilitate the Manhattan Bridge.
The first phase of the project involved steel rehabilitation, while the second phase involved further
steel work on the lower roadways and painting of the structure and towers. During the painting
phase, Yonkers had approximately 180 employees at the site. Some of these employees worked
within a movable containment area, which had a platform underneath it. After work was completed
on a particular part of the bridge, the whole containment area was moved to the next part of the
bridge on which work was to be done, using, if necessary, a compressed air pipeline that was along
the bridge. When employees needed access to the valves on the compressed air pipeline, they used
a transit authority walkway that went along the bridge.

(Tr. 40-43, 71-73, 88-89, 109-11, 115, 120-25, 151-53, 201-02, 214-15, 230; R-2.)

On May 2, 2000, Robert Stewart, a compliance officer (“CO”) for OSHA, was returning from
another inspection when he heard that a bridge painter had died when he fell into the East River from
the Manhattan Bridge. The CO called his area director and was given permission to begin an
inspection of the subject site. When he arrived at the site, the CO noticed an unprotected walkway
along the Manhattan Bridge. During his inspection, the CO learned that the bridge painter was a
Yonkers employee and that he had fallen 120 to 140 feet from the unprotected walkway. The CO
also learned that no lifesaving skiff had been available to retrieve the employee from the river. The
CO did not personally observe anyone working on the walkway when he was at the site. The CO did,
however, interview several employees, including John Pedone, a Yonkers’ mechanic, and the CO
determined that Mr. Pedone had been exposed to a fall from the walkway. (Tr. 8-13, 18-25, 34, 37,
44-45, 48-49, 56-58, 66-68, 72-73, 86-89, 97-02, 132.)

Discussion

To establish an alleged violation, the Secretary has the burden of showing that the standard
applied to the cited condition, that the employer violated the terms of the standard, that employees
were exposed to the violative condition, and that the employer had actual or constructive knowledge
of the violation; to meet her burden, the Secretary must prove all four elements by a preponderance
of the evidence. Astra Pharmaceutical Prod. , 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981).

Item 1 of Citation 1 alleges a serious violation of 29 C.F.R. § 1926.106(d), which requires
the employer to provide a lifesaving skiff where employees are working over or adjacent to water.
Respondent argues that the work was being performed over platforms and that there was no danger
of drowning, such that no lifesaving skiff was required. (R. Brief, p. 19.) Contrary to this argument,
however, the standard does not require the existence of a drowning hazard for the standard to apply.
Unlike 29 C.F.R. § 1926.106(a), which specifically requires the existence of a drowning hazard, the
cited standard makes no such reference.

Further, in RGM Constr. Co. , 17 BNA OSHC 1229, 1236
(No. 91-2107, 1995), the Commission explicitly rejected this same argument and held that the
standard requires that a lifesaving skiff be available at all times when employees are working over
or adjacent to water, including when employees are working on the deck of a bridge, even if they are
working behind guardrails or are otherwise protected by a fall protection system. As in RGM Constr.
Co. , employees of Yonkers were working over and adjacent to water, and it is undisputed that there
was no lifesaving skiff at the site. (Tr. 132, 141, 241-42, 149, 195; C-1; R-9; R. Brief, p. 19.) I find
that the standard applied and that Respondent failed to comply with the terms of the standard.

I further find that employees were exposed to the cited condition and that Respondent had
knowledge of the violation. Exposure to a violative condition may be established by showing actual
exposure or access to the hazard. See Brennan v. OSHRC , 513 F.2d 1032 (2d Cir. 1975); see also,
Usery v. Marquette Cement Mfg. Co. , 568 F.2d 902 (2d Cir. 1977). Clearly, employees of Yonkers
had access to the cited hazard, as evidenced by the employee who fell off the bridge. (Tr. 70-71.)
Consequently, this employee, as well as other employees who were working on the bridge, were
exposed to the violative condition. Moreover, Respondent does not deny that it was aware that no
lifesaving skiff was immediately available. (Tr. 132, 149; R. Brief, p. 19.) While Respondent may
argue that it was not aware that a lifesaving skiff was required, it is evident that Respondent could
have discovered the hazard with the exercise of reasonable diligence. Based on the foregoing, the
Secretary has satisfied her burden of proving the alleged violation. The Secretary has also
demonstrated that the violation was serious, in that it could have resulted in serious physical harm
or death. (Tr. 17-18.) Item 1 of the citation is accordingly affirmed as a serious violation.

The Secretary has proposed a penalty of $2,500.00 for this item. The CO testified that the
proposed penalty was based on the high severity of the violation and the lesser probability of an
injury. (Tr. 17-18.) While I agree with the Secretary that no reduction is appropriate for size or for
history, I find that the employer’s overall safety program demonstrates the company’s good faith. (Tr.
54-56, 118-20, 128-31, 154-82.) I conclude that a penalty of $1,500.00 is appropriate for this item.

Item 2 of Citation 1 alleges a serious violation of 29 C.F.R. § 1926.501(b)(1), which requires
the employer to provide fall protection to employees walking or working on a surface with
unprotected sides or edges that are 6 feet or more above a lower level.

Specifically, the Secretary
alleges that Respondent did not provide fall protection to employee John Pedone when he used the
walkway to access the valves on the compressed air pipeline, which, as noted above, was
occasionally utilized to move the containment area.

While Respondent asserts that it was not Mr.
Pedone’s job to “maintain or inspect” the compressed air pipeline, there is credible evidence on
record that Mr. Pedone did some work on the compressed air pipeline as part of his job duties. (Tr.
84-88, 97-02, 126, 199-03, 214-17.) Both Tom Korinis and Antonio Mourao, two former employees
for Yonkers, testified that before the accident, they observed Mr. Pedone working on the compressed
air pipeline, changing valves and hoses, approximately once or twice a week.

(Tr. 84-89, 97-02.)
They further testified that they never saw Mr. Pedone wearing or using any fall protection while
doing this work. (Tr. 88-89, 99-01.) In addition, Mr. Pedone’s own testimony, that he changed
fittings on the compressed air pipeline as needed and did not use fall protection when he did so,
confirms the testimony of Mr. Korinis and Mr. Mourao. (Tr. 214-18, 227.) The record shows that
Mr. Pedone accessed the compressed air pipeline by walking on the unprotected walkway, which was
clearly more than 6 feet above a lower level.

(Tr. 84-89, 97-02, 230.) It is reasonable to infer from
this evidence that, during the relevant time frame, Mr. Pedone was exposed to the cited hazard.
Based on the record, I find that the standard applies, that Respondent violated its terms, and that Mr.
Pedone was exposed to the cited hazard.

As part of her burden, the Secretary must prove that Respondent had actual or constructive
knowledge of the cited condition. See New York State Elec. & Gas Corp. , 88 F.3d 98, 105-10 (2d
Cir. 1996). The CO testified that Respondent did not have actual knowledge of the hazard, but that,
in the exercise of reasonable diligence, Respondent should have discovered the hazard. (Tr. 52-53.)
In Pride Oil Well Serv. , 15 BNA OSHC 1809, 1814 (No. 87-692, 1992), the Commission held that
reasonable diligence involves several factors, including an employer’s obligation to: (1) inspect the
work area, (2) anticipate hazards to which employees may be exposed, (3) take measures to prevent
the occurrence, (3) adequately supervise employees, and (4) formulate and implement adequate
training programs and work rules to ensure that work is safe. In view of these factors, the Secretary
has not satisfied her burden of establishing knowledge. The record shows that before the start of the
project, Yonkers prepared and submitted to NYC DOT a site-specific safety program that included
anticipation of hazards specific to each job or task. (Tr. 138, 156-60, 171-73; R-10; R-13.) The
record also shows that Respondent’s supervisors, city inspectors and outside consultants were on the
site daily in order to observe employees and to inspect for hazards and safety violations. (Tr. 118-20,
128-30, 140-47, 174-75.) The consultants provided inspection reports to Yonkers on a weekly basis
listing safety violations discovered. (Tr. 174-78; R-14.) In addition, Yonkers’ insurance carrier
audited the site on a monthly basis to address and to make recommendations in regard to safety
concerns. (Tr. 161-66; R-11.) The evidence of record further shows that employees were adequately
trained through safety meetings. (Tr. 168, 173-74, 180-82; R-12, 16.) The Secretary offers no
suggestions as to what other steps Yonkers could have taken to demonstrate the exercise of
reasonable diligence. I conclude that the Secretary has not met her burden of proof with respect to
knowledge. Item 2 of the citation is therefore vacated.

Conclusions of Law

1. Respondent, Yonkers Contracting Company, Inc., is engaged in a business affecting
commerce and has employees within the meaning of section 3(5) of the Act. The Commission has
jurisdiction of the parties and of the subject matter of the proceeding.

2. Respondent was in serious violation of 29 C.F.R. § 1926.106(d).

3. Respondent was not in violation of 29 C.F.R. § 1926.501(b)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED, and a penalty of $1,500.00 is assessed.

2. Citation 1, Item 2 is VACATED.

/s/

Irving Sommer

Chief Judge

Date: January 18, 2002