Eurotech Construction Corp.

Plain-English summary

A Eurotech masonry employee fell about 17 feet through a floor opening on the 45th floor of a high-rise construction project. OSHA alleged deficient inspections, an unsecured and unlabeled cover, and a failure to retrain employees. The judge credited evidence that Eurotech's foreman inspected floor-hole covers twice daily, found them safe that morning, and had previously secured a site protocol for other contractors to report any damaged fall protection. The faulty cover appeared to have replaced Eurotech's original cover, possibly only shortly before the accident, and the record did not establish who made the change or how long it existed. Because OSHA did not prove actual or constructive knowledge, all four citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(2); 29 C.F.R. § 1926.502(i)(3); 29 C.F.R. § 1926.502(i)(4); 29 C.F.R. § 1926.503(c)(3)
• Outcome: All four floor-hole inspection, covering, labeling, and retraining items vacated.
• Key point: Regular inspections and a functioning reporting protocol may defeat constructive knowledge when another contractor creates a short-lived hazard.

Full text (OSHRC public release)

                                      United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 08-1529
:
EUROTECH CONSTRUCTION CORP., :
:
Respondent. :

APPEARANCES:

Donyell Thompson, Esquire Gerard L. Keogh, Esquire
Office of the Solicitor F.G.H. Keogh & Associates, LLC
U. S. Dept of Labor New York, New York
New York, New York For the Respondent.
For the Complainant.

BEFORE: G. Marvin Bober
Administrative Law Judge

                                 DECISION AND ORDER

   This proceeding arises under the Occupational Safety and Health Act of 1970, as amended,

29 U.S.C. ' 651 et seq. (Athe Act@). The Occupational Safety and Health Administration (AOSHA@)
inspected Respondent=s work site on August 25 and 26, 2008. As a result, OSHA issued to
Respondent a Citation and Notification of Penalty (ACitation@) on September 12, 2008. On
September 29, 2008, Respondent, Eurotech Construction Corporation (AEurotech@ or ARespondent@)
filed a timely Notice of Contest pursuant to section 10(a) of the Act, bringing this matter before the
Occupational Safety and Health Review Commission (Athe Commission@). The Citation alleges four
serious violations of the Act and proposes a total penalty of $20,000.00. The Secretary filed her
Complaint in this matter, after which Respondent filed its Answer. The Answer admits the
Secretary=s jurisdictional allegations but generally denies the remaining allegations in the Complaint.
 The parties have submitted no stipulations of fact. The administrative trial in this case was held on
September 1, 2009, in Newark, New Jersey. The parties have submitted post-trial briefs.
Jurisdiction
The parties agree that jurisdiction of this action is conferred upon the Commission pursuant
to Section 9( c) of the Act.
The OSHA Inspection
At approximately 3:00 p.m. on August 25, 2008, the Manhattan Area Office of OSHA was
notified that a work-related accident with an injury had occurred at a job site located at 200 West
Street, New York, New York. The injury involved an employee who had fallen through a floor hole.
OSHA Compliance Officer (ACO@) Robert Stewart arrived at the site at 3:30 p.m., and he held an
opening conference with Richard Centina, superintendent for Tishman Construction (ATishman@),
the general contractor, and Gerard Sheridan, a foreman for Eurotech. The work site was a high-rise
building under construction which, at the time of the accident, was 45 stories high. Eurotech was the
masonry contractor, and it was engaged in erecting a masonry wall on the 45th floor at the time of the
accident. According to the CO, he and Messrs. Centina and Sheridan proceeded to the 45th floor,
where the CO observed and photographed the subject floor hole and surrounding areas. The CO
returned to the site the next day to conduct employee interviews. The CO interviewed Messrs.
Centina and Sheridan. He also interviewed Jerome Byrne and John O=Shea, two other Eurotech
foremen. Mr. O=Shea denied that his crew had installed the faulty floor hole cover through which
Eurotech employee Roberto Rodriguez fell. (Tr. 48, 51).
At some point during the inspection, Messrs. Centina and O=Shea told the CO that they believed
that Century Maxim (ACentury@), another contractor at the site, had installed the faulty floor hole cover. 1
The CO interviewed a Aboss@ for Century who denied installing the floor cover. The CO could not recall
the name of that individual. (Tr. 51-52). However, Mr. O=Shea specifically told him that the piece of
plywood the CO identified as the floor hole cover had not been installed by Eurotech=s employees. (Tr.

   1
    Century Maxim was the concrete subcontractor at the site. Part of its work activity was to

place forms around floor holes to facilitate pouring the concrete floor. It is normal practice to install
floor hole covers on top of such forms. (Tr. 71-74).

                                                 2

48). In addition, Mr. O=Shea had told the CO that he had inspected the floor hole cover before the accident
and that he thought it was Aokay.@ (Tr. 28).
The facts in regard to the accident establish that, at about 1:30 p.m. on August 25, 2008, Roberto
Rodriguez, while working at the site, fell through a floor hole on the 45th floor to the 44th floor. His fall
was about 17 feet. (Tr. 24-25). Although the employee sustained injuries that required hospitalization,
there is no description of his injuries in the record. The CO photographed a sheet of plywood which he
believed was the faulty floor cover. I find that it was reasonable for the CO to make that inference. 2 The
CO did not know who had installed the faulty hole cover. He concluded, however, that the violative
condition existed at the site for three to four days before the accident. He also concluded that Eurotech=s
employees were working near that condition during the relevant period and that Eurotech should be held
responsible for the condition. (Tr. 15-26, 31-44).
Sequestration of Witnesses
Pursuant to Rule 615 of the Federal Rules of Evidence, applicable to Commission proceedings
under Rule 71, 29 C.F.R. 2200.71 of the Commission=s Rules of Procedure. A***[t]he practice of
sequestering witnesses is twofold. It exercises a restraint on witnesses >tailoring their testimony to that of
earlier witnesses; and it aids in detecting testimony that is less than candid.@ Genders v. United States, 96
S.Ct. 1320, 13335 (1976). See 1972 advisory note (AThe efficacy of excluding or sequestering witnesses
has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, or collusion.@
See also, 29 Wright & Gold , Federal Practice and Procedure: Evidence 6242, pp. 53-54 (1st ed. (AWright
& Gold@).
The Relevant Testimony
CO Robert Stewart

   2
    The CO=s photos, CX 1-3, were taken on the 45th floor. Mr. O=Shea, however, testified the

cover fell through the hole with Mr. Rodriguez. (Tr. 111). While no witnesses at the trial saw the
accident, Mr. O=Shea arrived at the scene shortly after it occurred, and it is reasonable to infer that he
saw the cover on the 44th floor. No one knew who had returned the cover to the 45th floor.

                                               3

CO Stewart was the only witness the Secretary called to testify. As indicated above, he did
not witness the accident or have personal knowledge of it. His testimony consisted entirely of
information he obtained from persons employed at the site and his personal observations after the
accident. The record does not indicate whether he interviewed Mr. Rodriguez or whether any of the
workers he interviewed saw the accident. The CO observed the floor hole covering that he believed
Mr. Rodriguez fell through, and he concluded it had not been properly secured and was not labeled
or color coded as required. The CO testified that Mr. O=Shea Adid not do a competent inspection
[and] was not looking for the right things.@ Besides not being labeled or color coded, the cover was
not nailed down properly. The CO did not know who installed the hole cover. Because the condition
had existed for three or four days, and because Eurotech=s employees were were working in close
proximity to that condition during that time, the CO determined that Eurotech should be held
responsible for the alleged violations. 3 (Tr. 26-28, 31-44).
With respect to Item 1 of the Citation, the CO concluded that Eurotech Adid not do an
adequate competent inspection of that floor hole cover.@ In regard to Items 2 and 3, he concluded
that the cover had not been secured as required and also had not been labeled or color coded as
required. As to Item 4, he concluded employees had not been retrained as required in fall protection
when they had not recognized the hazard of working near an inadequately secured floor hole cover.
The CO recommended a $5,000.00 penalty for each item. (Tr. 26, 32-45).
Jerome Byrne
Jerome Byrne was Eurotech=s masonry foreman at site. His duties included weekly safety
meetings, and he discussed fall hazards with his crew at those meetings. Mr. Byrne testified that on
August 25, 2008, he and his crew were working on the 44th and 45th floors and were preparing to
construct a wall on the 45th floor by Agetting the floor loaded with block.@ He further testified that
employees of the other subcontractors, including Century, were also working on the 45th floor. Mr.
Byrne stated that after his crew member, Mr. Rodriguez, fell through the floor hole, he went to the
44th floor and found him lying on a pile of blocks. He accompanied Mr. Rodriguez to the hospital
and stayed there for two or three hours. Mr. Byrne did not testify that he saw Mr. Rodriguez fall

   3
    Although CO Stewart stated that the condition had existed for three to four days before

the accident, he failed to provide any support oral or written for his conclusion..

                                              4

through the floor hole, and he was not asked if he saw the cover before or after the accident. He was
also not asked about the injuries Mr. Rodriguez sustained. (Tr. 91-97).
John O=Shea
John O=Shea was Eurotech=s carpentry foreman at the site. He has worked as a carpentry
foreman for 19 years and has been so employed by Eurotech for nine years. He has received OSHA
safety training and has his OSHA ten- and thirty-hour certificates. He was responsible for ensuring
that his crew worked in a safe manner. Mr. O=Shea testified that he and his crew were responsible for
constructing and maintaining temporary fall protection throughout the site. Their duties included
installing perimeter guarding, barriers and floor hole covers. He conducted weekly safety meetings
with his crew which included various topics such as fall protection. (Tr. 101-03, 116).
As a subcontractor responsible for fall protection, Mr. O=Shea received direction from
Tishman=s safety crew as to installation and repair of fall protection. He testified that a major part of
his daily activities was inspecting the site to determine whether protective barriers installed by his
crew were damaged or removed by other contractors. These inspections were done in the morning
and at the end of the day. Mr. O=Shea said that he noticed during the early phases of construction
that on numerous occasions the fall protection installed by his crew had been Abreached@ by other
contractors. He reported these breaches to his supervisors, and it was decided to document the
conditions with photographs. Eurotech submitted the photographs, RX-5, to Tishman; they depicted
broken hand rails and hand rail supports, damaged wood barriers, removed elevator shaft barriers
and removed nets and toe boards. Mr. O=Shea also said that he told Tishman=s representatives that
the damaged and removed barrier protection Awas an ongoing problem and it didn=t seem to be
getting any better and we need to do something about it.@ (Tr. 103-08, 130, 162 -82).
According to Mr. O=Shea, Tishman instituted a directive which stated that any contractor on
the site who removed or breached protection devices was required to immediately notify Tishman,
who, in turn, would notify Eurotech to repair or correct the damage. This protocol was put in place
during the fall of 2007 and Aworked well.@ Every contractor followed the directive until the incident
involving Mr. Rodriguez. At the trial, Mr. O=Shea was asked what was involved in installing a floor
hole cover. Mr. O=Shea explained as follows: AYou have holes B a flat hole on the floor is normally
covered with planks and plywood. A raised up hole can be covered with 2x4=s on edge and plywood

                                               5

on top. It=s to support the weight of workers and/or material. It has to be solid, slightly bigger than
the opening so it will never go through.@ 4 He also explained that to alert workers of the opening, the
cover would have AHole@ or AHole, do not step@ written on it. These indicators were written on the
covers throughout the project. (Tr. 105, 110-11, 125-28).
At about 7:30 a.m. on August 25, 2008, Mr. O=Shea conducted his usual walk-around to
inspect the fall protection at the site, including that on the 45th floor. There were several floor hole
covers on that floor which his crew had installed Aa few days previously.@ Mr. O=Shea stated at the
trial that the covers on that floor Awere all safe and intact.@ Later that day, at about 1:30 p.m., Mr.
O=Shea was notified that a worker had fallen through a floor hole on the 45th floor. He proceeded to
that area and observed the floor opening. He also observed the hole cover that had gone through the
floor opening with the employee to the floor below. He concluded that cover had not been put in
place by him or one of his crew. A[I]t was poorly put together. It was B the piece of wood that was
laid on top was smaller than the opening. It went down with him.@ He also concluded that the
original hole cover had been Aremoved and replaced.@ Mr. O=Shea testified that while there were
other subcontractors working on the 45th floor that day, he had Ano doubt@ that it was Century=s
workers who had put the faulty cover over the floor hole. In any case, no one had advised him of the
faulty cover, including the Eurotech employees and foremen who were on site. He acknowledged
that the faulty cover did not have >hole@ or Ahole cover@ written on it and that Eurotech=s employees
should have recognized that the cover was not Aa good hole cover.@ He indicated, however, that on a
busy work day it was possible that employees simply might not notice that a cover was faulty. As he
put it, Eurotech=s employees were Aused to operating around [his] solid hole covers that [he] had
installed and then you have another contractor who comes and removes it and installs something that
looks pretty good but, in fact, is not. (Tr. 110-12, 117-18, 120-30).
Brian Murphy
Brian Murphy was Eurotech=s project manager at the site. He has worked in that capacity for
Eurotech for three years. Mr. Murphy testified that Eurotech had two separate contracts at the site.
4
Mr. O=Shea indicated the covers his crew installed were solid : inch plywood with A2x4
strong backs.@ He also indicated they were Asolidly built@ and Astrapped down.@ (Tr. 112, 117).

                                               6

One was to perform masonry work, and the other was to provide temporary fall protection on the job
site. Mr. O=Shea and his carpentry crew were responsible for providing the temporary fall protection
on the job. Mr. Murphy also testified that early on at the site, Mr. O=Shea brought to his attention
that extensive protection installed by his crew was being destroyed or breached by other contractors.
(Tr. 132-35). In this regard, he stated as follows:
[W]e felt the need to bring it up to [the general contractor] that other subcontractors
of theirs in the building were destroying our material and breaking it in a way that
was unsafe to the rest of the subcontractors in the building. (Tr. 135).
Mr. Murphy brought the problem to the attention of Eurotech=s upper management and it was
decided to photograph the damaged protection and present the photographs to the general contractor.
Mr. Murphy stated that Aat the time that I shown (sic) the pictures to Tishman they said that from
now on there would be no more breaches in our work without us being notified that it was
happening.@ The general contractor informed all of the subcontractors that their contracts required
them to notify the general contractor if they breached the barrier protection. At that point, according
to Mr. Murphy, the subcontractors Astarted to do a lot better job@of reporting the need for barrier
repair. (Tr. 135, 162-65, 172-83).
Mr. Murphy was present at the site when Mr. Rodriguez fell, and he arrived at the scene of
the accident five minutes after it happened. He testified that he had a discussion with Mr. O=Shea
every morning and that there were Asix to seven@ protection men walking the floors Aas part of their
daily routine to inspect the floors in the morning.@ Mr. Murphy had not been notified that day of any
altered or breached hole covers. He noted, however, that Century had been working on the 45th floor
in the relevant area on the day of the accident. (Tr. 184-86).
Credibility of Witnesses
In Commission proceedings, the Judge=s findings of fact must resolve the conflicting
testimony of witnesses. C. Kaufman, Inc., 6 BNA OSHC 1295, 1297 (No. 14249, 1978) (A[i]t is the
policy of the Commission to ordinarily accept [the Judge=s] evaluation of the credibility of witnesses,
for it is the Judge who has lived with the case, heard the witnesses, and observed their demeanor.@)
Accord, E.L. Jones and Son, Inc., 14 BNA OSHC 2129, 2132 (No. 87-0008, 1991). Further, while
the Commission has the authority to make factual findings where the Judge has not, it ordinarily will

                                              7

prefer that the Judge make such determinations. See, e.g., Agra Erectors, Inc., 19 BNA OSHC 1063,
1066 (No. 98-866, 2000); Able Contractors, Inc., 5 BNA OSHC 1975, 1978 (No. 12931, 1977). The
Judge has the obligation of fairly considering the entire record and adequately explaining his or her
findings. Asplundh Tree Expert Co., 6 BNA OSHC 1951, 1953-1954 (No. 16162, 1978).
In making my credibility determinations in this matter, I have considered the testimony of
each witness and the fact that the witnesses were sequestered. While CO Stewart=s testimony was
credible, I am assigning more weight to the on-site witnesses, that is, Messrs. Byrne, O=Shea and
Murphy. In particular, I accord the most weight to Mr. O=Shea=s testimony. I observed Mr. O=Shea=s
demeanor, including his body language and facial expressions, throughout his testimony. Based on
his demeanor, and his detailed testimony, I found him to be a very credible and convincing witness.
His testimony shows him to be a highly experienced carpentry foreman who holds two OSHA
certificates. He also appeared to be a very conscientious individual who took his job seriously. He
testified without equivocation about his twice-daily inspections to ensure that proper temporary fall
protection was in place at the site. He further testified that any breaches to that protection were
reported to his supervisors and to Tishman. Finally, he testified about the hole covers that he and his
crew installed. He was emphatic that he had inspected the covers on the 45th floor on the morning of
the accident and found them to be Asafe and intact.@ He was also emphatic that he and his crew had
not installed the faulty cover and that that cover was likely installed by Century. The testimony of
Messrs. Byrne and Murphy supports that of Mr. O=Shea, and even the CO agreed that Messrs.
O=Shea and Centina told him during the inspection that they believed Century had installed the
faulty cover. 5 The CO also agreed that Mr. O=Shea had told him that he had inspected the cover the
morning of the accident and that it seemed to be Aokay.@ The only significant difference between the
testimony of the CO and Mr. O=Shea was the CO=s belief that the faulty cover had been in place for
three to four days before the accident. As set out in footnote 3, supra, the CO never testified where
he obtained this information. Based on my finding that Mr. O=Shea was the more credible witness,
his testimony about the cited condition is credited over that of the CO.

   5
    While I make no specific finding in this regard, the evidence tends to support a

conclusion that Century did in fact install the faulty cover.

                                              8

The Citation Items
Item 1 alleges a violation of 29 C.F.R. 1926.20(b)(2), in that A[f]requent and regular
inspections of floor hole covers were not made by competent person designated by the employer, on
or about 8/25/08.@ Item 2 alleges a violation of 29 C.F.R. 1926.502(i)(3), in that a A[f]loor hole cover
was not secured from displacement, on or about 8/25/08.@ Item 3 alleges a violation of 29 C.F.R.
1926.502 (i)(4), in that the A[f]loor hole cover was not color coded or labeled AHOLE@ or ACOVER,@
on or about 8/25/08. Item 4 alleges a violation of 29 C.F.R. 1926.503(c)(3), in that the A[e]mployees
were not provided retraining when they were not able to recognize that fall protection was required
while working right at edge of an inadequately secured floor hole cover, on or about 8/25/08.@
Discussion and Conclusion
To establish a violation of an OSHA standard, the Secretary must prove: (1) the standard
applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the
employer=s employees had access to the cited conditions; and (4) the employer knew, or with the
exercise of reasonable diligence could have known, of the violative conditions. Kulka Constr. Mgmt.
Corp., 15 BNA OSHC 1870, 1873 (No. 88-1167, 1992); Ormet Corp., 14 BNA OSHC 2135 (No.
85-0531, 1991).
Knowledge is a fundamental element of the Secretary=s burden of proof in establishing a
violation of an OSHA regulation. Trinity Indus. v. OSHRC, 206 F.3d 539, 542 (5th Cir. 2000);
Kokosing Constr. Co., 17 BNA OSHC 1869, 1873 (No. 92-2596, 1996). The Secretary may establish
the requisite knowledge on the part of the employer through actions of its supervisory employees.
Donovan v. Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir. 1983). She may also
establish knowledge by showing the employer knew of the violative condition or could have known
of it with the exercise of reasonable diligence. New York State Elec. & Gas Co. v. Secretary of
Labor, 88 F.3d 98, 105 (2d Cir. 1996); Milliken & Co., 14 BNA OSHA 2079, 2082 (No. 84-767,
1991). Stated another way, the Secretary must prove that the employer had either actual or
constructive knowledge of the violation.
Based upon the record and my credibility findings supra, I conclude that the Secretary has
not met her burden of proving knowledge with respect to any of the alleged violations.

                                               9

As to Items 1, 2 and 3, Mr. O=Shea=s testimony establishes that he performed twice-daily
inspections of the work site to ensure that proper fall protection was in place. His testimony also
establishes that at approximately 7:30 a.m. on August 25, 2008, he inspected the floor hole coverings
on the 45th floor of the building and determined that they were in compliance; as he put it, they were
Asafe and intact.@ Although the subject cover was clearly removed and replaced with a faulty one at
some point before the accident, no one at Eurotech was aware this had occurred. Mr. O=Shea
admitted that the cover did not have AHole@ or ACover@ written on it and that his employees probably
should have recognized it was not a proper cover. He noted, however, that on a busy day the workers
simply might not have noticed the cover=s condition. He also indicated that Eurotech employees
were used to working around the covers that he and his crew installed and that while the replacement
cover might have appeared to be all right at first glance it was not, in fact, safe. Further, as there is
no evidence in the record as to how long the cited condition existed, the faulty cover could have
been in place for a relatively short period of time such that no one from Eurotech had noticed it.
In addition to the foregoing, I have noted the protocol the general contractor established at
Eurotech=s insistence that had evidently been in place for some time and had resulted in fewer
problems with respect to temporary fall protection being removed or destroyed. This fact, together
with Mr. O=Shea=s inspections to ensure that the temporary fall protection remained in place,
persuades me that Respondent acted in a reasonable and diligent manner to discover conditions like
the one that occurred on August 25th, 2008. Based on the record, I find that the Secretary has failed
to establish that Respondent knew, or with the exercise of reasonable diligence should have known,
of the hazardous condition. See New England Tel. and Tel. Co. v. Secretary of Labor, 589 F.2d 81
(1st Cir. 1978). In that case, the court stated that anticipating the actions of another contractor Ais a
burden of care we consider so unrealistic as to be unreasonable as a matter of law.@ Id. at 82. (AIf a
passageway is properly lighted, a subcontractor does not have to stand around and see that the bulb
does not burn out.@) Id. Based on the facts and circumstances of this case, Respondent exercised
reasonable diligence. Accordingly, Items 1, 2 and 3 are vacated.
As to Item 4, Foremen Byrne and O=Shea testified that they provided weekly training
sessions for their respective crew members; the sessions included training in fall hazards and fall
protection. The Secretary apparently believed that Respondent=s employees required retraining as

                                               10

they had failed to recognize the floor hole cover as a hazard on the day of the accident. As noted
above, however, there is no evidence as to how long the condition existed that day, and, as Mr.
O=Shea indicated, on a busy workday the employees simply might have failed to notice the cover=s
condition. The standard, of course, places the burden of proof upon the Secretary to establish that
Respondent had Areason to believe@ that the employees did Anot have the understanding and skill@ to
recognize a faulty floor hole cover. However, as set out above, there is nothing in this record to show
that Eurotech knew or should have known of the cited condition. There is likewise nothing in the
record to show that Eurotech knew or should have known that employees required retraining,
particularly in view of the evidence that they attended weekly training sessions. The credible
evidence of record establishes that Eurotech provided training to employees that addressed the cited
hazard. Eurotech thus exercised reasonable diligence. See, e.g., Gary Concrete Prod., Inc., 15 BNA
OSHC 1051, 1054-1055, (No. 86-1087, 1991). Because the Secretary has not proved the knowledge
element as to this item, Item 4 is vacated.
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).
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is ordered that:
1. Citation 1, Item 1, alleging a violation of 29 C.F.R. 1926.20(b)(2), is VACATED.
2. Citation 1, Item 2, alleging a violation of 29 C.F.R. 1926.502(i)(3), is VACATED.
3. Citation 1, Item 3, alleging a violation of 29 C.F.R. 1926.502(i)(4), is VACATED.
4. Citation 1, Item 4, alleging a violation of 29 C.F.R. 1926.503(c)(3), is VACATED.

                                                   G. Marvin Bober
                                                   Administrative Law Judge

Dated: April 15, 2010
Washington, D.C.

                                              11