All Erection & Crane Rental Corp.

Plain-English summary

All Erection & Crane Rental supervised temporary workers cleaning debris from a deteriorated building in Cleveland. One worker suffered a head injury when a table leg struck her, and a supervisor offered to take her to a nearby hospital, but she declined. The Commission held that the offer made medical personnel readily available as required, and the standard did not require the company to obtain treatment over a competent worker's refusal. The Commission also found that uncertainty about whether an asbestos survey existed did not prove that the company had failed to conduct one. Because the Secretary did not establish noncompliance with either standard under review, both items were vacated. Other citation items decided by the judge were not before the Commission.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.151(a); 29 C.F.R. § 1910.1001(j)(2)(i)
• Outcome: The reviewed medical-services and asbestos-survey items were vacated.
• Key point: Ready availability of medical personnel does not require forced treatment, and uncertainty about a survey does not prove that no survey occurred.

Full text (OSHRC public release)

All Erection & Crane Rental Corp., Docket No. 09-1451

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SECRETARY OF LABOR,

Complainant,

v.

OSHRC
Docket No. 09-1451

ALL ERECTION & CRANE RENTAL CORP.,

Respondent.

ON BRIEFS:

John Shortall,
Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Joseph M.
Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M.
Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For
the Complainant

Tod
T. Morrow, Esq; Morrow & Meyer LLC, North Canton, OH

For
the Respondent

DECISION

Before: ROGERS, Chairman;
ATTWOOD, Commissioner.

BY THE COMMISSION:

This case
arises from a clean-up operation conducted in Cleveland, Ohio, by All Erection
& Crane Rental Corporation at a building it owned, which had fallen into
disrepair. After inspecting the worksite, the Occupational Safety and Health
Administration issued All Crane a six-item, serious citation and a one-item, other
than serious citation, alleging violations of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678. Following a hearing,
Administrative Law Judge Dennis L. Phillips affirmed all but one of the
citation items. All Crane sought review of the judge’s decision, and the
case was directed for review to consider two of the affirmed items: a violation
of 29 C.F.R. § 1910.151(a), a provision of the medical services and
first aid standard, based on All Crane’s alleged failure to obtain
medical treatment for a worker injured during the clean-up operation; and a
violation of 29 C.F.R. § 1910.1001(j)(2)(i), a provision of the asbestos standard, based on All Crane’s
alleged failure to conduct an asbestos survey of the building. For the reasons
set forth below, we vacate both items.

DISCUSSION

“In
order to prove a violation . . . the Secretary must show by a preponderance of
the evidence that (1) the cited standard applies, (2) there was a failure to
comply with the cited standard, (3) employees had access to the violative
condition, and (4) the cited employer either knew or could have known of the
condition with the exercise of reasonable diligence.” Astra Pharm.
Prods., Inc. , 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp.
31,899-900 (No. 78-6247, 1981), aff’d in pertinent part , 681 F.2d
69 (1st Cir. 1982). Based on our review of the record, the Secretary failed to
establish All Crane’s noncompliance with both § 1910.151(a) and
§ 1910.1001(j)(2)(i).

I.         Serious
Citation 1, Item 4 – 29 C.F.R. § 1910.151(a) (Medical Services)

As part of
All Crane’s clean-up operation, workers threw debris out windows from the
building’s upper floors into an open-air courtyard below. One of the
workers (“Worker-A”) was in the courtyard and was injured when a
table leg thrown from an upper-level window hit her in the head. Worker-A
approached Matt Johnson, an All Crane maintenance foreman and supervisor of the
clean-up workers, and showed him that there was a lump near her left temple
caused by the table leg. Johnson offered to take Worker-A to a nearby hospital,
but she declined the offer. However, Worker-A accepted Johnson’s offer to
drive her to a nearby store where he bought ice for her to apply to her injury.
He also took pictures of her injury and told her she did not have to continue
working for the rest of the day. Worker-A returned to work the following day,
and the day after that signed a “Medical Treatment Refusal” form at
the request of Labor Ready—a company that supplied workers, including
Worker-A, to All Crane for the project—in which she stated that she had
voluntarily declined treatment of her injury.

Based on the
circumstances of Worker-A’s injury, the Secretary alleges that All Crane
violated § 1910.151(a), which provides that “[t]he employer shall
ensure the ready availability of medical personnel for advice and consultation
on matters of plant health.” The judge affirmed this item, concluding that All Crane was
“obligated to advise [Worker-A] . . . that medical personnel were readily
available for advice and consultation,” to “tell [her] that she
needed to, or should, have her head injury examined by a doctor or other
medical personnel,” to provide “treat[ment] by [some]one at the
building trained in first aid,” and/or to contact “a physician or
nurse by telephone for advice or consultation.” On review, All Crane
argues that it complied with § 1910.151(a) by offering to take Worker-A to
a nearby hospital, and was not required under the standard to take further
action upon her refusal of the offer. The Secretary responds that All Crane’s offer fell short of
“ensur[ing]” that medical personnel were readily available, in
particular because the company “knew that [Worker-A] had sustained a head
injury serious enough to raise a bump.”

When the
meaning of a provision is in dispute, as it is here, “we first examine
the language of the standard.” Nooter Constr. Co. , 16 BNA OSHC
1572, 1574, 1993-1995 CCH OSHD ¶ 30,345, pp. 41,837-38 (No. 91-0237,
1994). Section 1910.151(a) states only that an employer must “ensure the ready
availability of medical personnel,” 29 C.F.R. § 1910.151(a)
(emphasis added). The term “available” is defined as
“accessible” or “obtainable,” and “ready”
means “prepared for immediate use.” Webster’s New Collegiate
Dictionary 77, 954 (1979). Taken together, these definitions show that the
“ready availability” of an item means that it must be close at
hand—actual obtainment is not necessarily required. See, e.g.,
Froedtert Mem’l Lutheran Hosp., Inc. , 20 BNA OSHC 1500, 1510,
2002-2004 CCH OSHD ¶ 32,703, p. 51,737 (No. 97-1839, 2004) (“The
standard [at 29 C.F.R. § 1910.1030(f)(2)(i)] . . . requires only that
the vaccine be ‘made available’ . . . [and] does not require . . .
that exposed employees agree to receive . . . any vaccine at all.”). This
is consistent with the provision immediately following § 1910.151(a),
which indicates that a nearby hospital qualifies as the “ready
availability” of medical personnel, because it requires employers to have
“a person . . . adequately trained in first aid” at the worksite
only “[i]n the absence of a[] . . . hospital in near proximity.” 29
C.F.R. § 1910.151(b).

Contrary to
the Secretary’s claims here, All Crane made medical personnel readily
available to Worker-A when Johnson offered to take her to the hospital. There
is no evidence that Worker-A exhibited any signs of distress or disorientation
that should have caused Johnson to question her capacity to meaningfully choose
whether to consult with medical personnel. In fact, the record shows that after
she was hit by the table leg, Worker-A walked up to one quarter-mile, with no
ill effects, to report the injury to Johnson. In these circumstances, Johnson
acted reasonably in respecting her decision to refuse the offer, and complied
with the requirement to “ensure the ready availability of medical
personnel for advice and consultation.” 29 C.F.R.
§ 1910.151(a).

We also find
no support in the record for the judge’s characterization of All
Crane’s response to Worker-A’s injury as unreasonable. First, the
judge found that Johnson allowed Worker-A to refuse treatment while
“believ[ing] that she was subject to the effects of having recently
smoked marijuana.” But Johnson’s testimony shows that he did not
believe Worker-A was under the influence of marijuana at the time of the
injury. Rather, he had heard that

Worker-A smoked marijuana, and he simply speculated that she refused treatment
because she was worried about being drug-tested at the hospital. Second, the
judge found that All Crane’s photographic documentation of
Worker-A’s injury and her completion of the “Medical Treatment
Refusal” form show “that [All Crane’s] primary focus . . .
was on [its] concerns for potential liability . . . rather than any actual concern
for [Worker-A’s] medical well[-]being.” We disagree. Completion of
the form was requested by Labor Ready, not All Crane. In any event, such basic
business procedures do not undermine Johnson’s offer at the outset to
drive Worker-A to the hospital, and there is no evidence in the record to
support the judge’s characterization of Johnson’s offer as
“half-hearted.”

In short,
the record shows that All Crane acted reasonably under the circumstances
presented by Worker-A’s injury, and we therefore conclude that the
company complied with the cited standard. Accordingly, we reverse the judge and
vacate Citation 1, Item 4.

II.       Other-than-Serious
Citation 2, Item 1 – 29 C.F.R. § 1910.1001(j)(2)(i) (Asbestos)

Under
this item, the Secretary alleges a violation of 29 C.F.R. §
1910.1001(j)(2)(i), which requires building owners to survey their worksites
for asbestos:

Building and facility owners shall determine the
presence, location, and quantity of [asbestos-containing material] and/or
[presumed asbestos-containing material] at the work site. Employers and
building and facility owners shall exercise due diligence in complying with
these requirements to inform employers and employees about the presence and
location of [asbestos-containing material] and [presumed asbestos-containing
material].

The Secretary claims that All
Crane violated this provision because “a survey had not been completed .
. . to determine the presence, quantity and location of asbestos-containing
materials” in the building where the clean-up crew was working. The judge, relying on the CO’s testimony and that of All Crane
claims manager and former safety manager Charles Boettner, found that the
company did not conduct an asbestos survey of the building, and he affirmed
this item.

The evidence
as to whether All Crane conducted an asbestos survey is equivocal at best and
reflects the record’s limited development. The CO testified that when she
asked Boettner for the survey during the inspection, he told her that he
“was not sure whether a survey had been done” and “thought
perhaps another entity might have done” one. Similarly, Boettner
testified that he “ha[d] no knowledge whether [the company] did or did
not” conduct such a survey. But the Secretary did not question him
further on this point or lay a foundation that might have established Boettner
as the individual at All Crane who would know if an asbestos survey had been
conducted. Nor did the Secretary submit into evidence any discovery—such
as interrogatories, document requests, requests for admission, or responses
thereto—to establish that such a survey had not been conducted.
Consequently, on this record, the CO’s testimony that she “was
never able to track down an asbestos survey” does not establish All
Crane’s failure to conduct one.

Under
these circumstances, we conclude that the Secretary has not carried his burden
of showing that All Crane failed to “determine the presence, location,
and quantity of [asbestos-containing material] . . . at [its] work site.”
29 C.F.R. § 1910.1001(j)(2)(i). Accordingly, we reverse the judge and
vacate Citation 2, Item 1.

ORDER

We vacate
Citation 1, Item 4, and Citation 2, Item 1.

SO ORDERED.

/s/ 

Thomasina
V. Rogers

Chairman

/s/ 

Cynthia
L. Attwood

Dated: January 23,
2014                                            Commissioner

Some personal identifiers have been redacted for privacy purposes

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket
No. 09-1451

ALL ERECTION & CRANE RENTAL CORP.,

Respondent.

APPEARANCES:

Paul
Spanos, Esquire, U.S. Department of Labor, Cleveland, Ohio

For
the Complainant.

Tod
T. Morrow, Esquire, Morrow & Meyer LLC, North Canton, Ohio

For the Respondent.

BEFORE:Dennis L. Phillips

Administrative Law Judge

DECISION
AND ORDER

This
proceeding is before the Occupational Safety and Health Review Commission
(“the Commission”) under section 10(c) of the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et seq . (“the
Act”). On May 5, 2009, the Occupational Safety and Health Administration
(“OSHA”) began an inspection of a work site of Respondent, All
Erection & Crane Rental Corp. (“Respondent” or “All
Crane”). As a result of the inspection, on July 24, 2009, OSHA issued to
All Crane a six-item “serious” citation and a one-item
“other” citation. All Crane contested the citations and the
proposed penalties. The hearing in this matter was held in Cleveland, Ohio, on
April 13, 2010. Both parties have filed post-hearing briefs. The Secretary has
filed a reply brief. The affirmative defenses of “greater hazard,”
“unpreventable employee misconduct” and “unpreventable
misconduct of third parties” raised by Respondent in its Answer are found
to have been abandoned by Respondent and lack merit. (Answer, at p. 2). See
Dole Packaged Food Co. et al., 1989 WL 223471, at * 4 (Nos. 88-0665 and
88-2672, 1989).

Background

All
Crane, located in Independence, Ohio, is in the business of renting, repairing
and selling cranes and other construction equipment. It employs about 190
employees and has been in business since 1964. Due to a debt judgment owed by a
creditor, All Crane acquired the Richman Brothers Building (“building”)
that had previously housed a clothing manufacturing business. The building,
located at 1600 East 55 Street, Cleveland, Ohio, is an older property with more
than 600,000 square feet. All Crane attempted to sell the building but was
unsuccessful. The building fell into disrepair. Some months before the OSHA
inspection, the City of Cleveland (“the City”) ordered All Crane to
clean up and dispose of the debris inside the building. The City also ordered
All Crane to secure the building, as transients and others were breaking into
the property. The debris in the building included combustible materials, such
as wood, and pigeon waste, as windows were broken and areas of the roof were
gone. (Tr. 21-22, 25-27, 129, 140, 145, 161, 178, 195, 200, 208-12; Exh. H, at
pp. 1-4).

All
Crane contracted verbally with CR Construction (“CR”) to board up
the windows of the building. It next asked CR to do the cleanup work, but after
two or three days was dissatisfied with the company in that regard. All Crane
then learned of Labor Ready (“LR”), located in Bedford, Ohio which
provides workers for various types of jobs. Charles Boettner, All Crane’s
claims manager, spoke with LR’s Mark Walsh, who stated that he had a crew
with experience in cleanup/debris removal work. Mr. Boettner met with Mr. Walsh
to further discuss the job. Mr. Walsh also visited the site with Mr. Boettner
to assess the work that was to be done. On April 9, 2009, Mr. Boettner and Ms.
Lilly Gorman, LR’s Contract Manager, signed Exhibit 7, a contract between
All Crane and LR for LR to provide workers for the cleanup work at the
building. The contract, entitled “Confirmation of Rates and
Services,” has two pages. Page 2 is “The Addendum to Confirmation
of Rates and Service” (“Addendum”) (together the two pages
are referred to as the “contract”). (Tr. 70, 76-77, 82, 212-21;
Exhs. 7, A, E, at p. 1).

Page 1 of
the contract sets out general responsibilities of the parties. Paragraph 1

on page 1 sets out LR’s
responsibilities as follows:

Labor Ready Responsibilities . Included in Labor
Ready’s Regular Bill Rate are all wages, withholdings, FICA, Medicare,
payroll taxes, unemployment insurance and workers’ compensation
insurance….

Paragraph 2
on page 1 sets out All Crane’s responsibilities as follows:

Customer Responsibilities . Provide
adequate supervision and accurately record all hours worked, including
overtime….

Paragraph 4
on page 1 of the contract describes safety responsibilities:

Safety ! Since our [LR] workers will be under
your [All Crane] supervision, they [LR workers] need to be included in your
[All Crane] safety program and you [All Crane] are required to comply with
safety regulations and provide any necessary site-specific safety training and
equipment except as otherwise stated in the Addendum attached hereto and
incorporated by reference herein. Labor Ready conducts a 20-point
pre-employment safety screening and provides general safety awareness through
our Health & Safety Program. We [LR] can also provide drug and background
screening at your [All Crane] request for an additional fee. [Bracketed
Material and emphasis added].

The Addendum at page 2 of the contract describes the
job and sets out

further party responsibilities:

All Crane desires to hire Labor
Ready to provide employees to perform general debris clean-up work, dispose
of debris into an elevator shaft , and broom-sweep floors and stairwells
(the “Work”) at the following property owned by All Crane Richmond
Brothers Building, E. 55 th Street, Cleveland, Ohio (the
“jobsite”)…. [emphasis added]. [T]he parties hereto agree as
follows:

1. Labor Ready’s Representations and
   Obligations . Labor Ready acknowledges and agrees as follows:

(a) To furnish competent employees who are generally
familiar with and experienced in building construction clean-up operations;

(b) To provide a roster of the names of Labor
Ready’s employees assigned to perform the Work at the Jobsite, and update
the roster if/when any changes are made;

(c) To perform the Work in strict compliance with the
Contract and all specifications and/or directions provided by All Crane;

(d) To perform the Work in accordance with the
schedule provided by All Crane, including any revisions thereto;

(e) To designate two (2) employees to work the
elevator shaft area at the Jobsite who are qualified to perform such Work;

(f) To provide its [LR] employees, and require such
employees to wear, the following safety equipment: hard hat, safety glasses,
dust mask, gloves, and steel-toe boots;

(g) To provide its [LR] employees with sufficient quantities
of water and hand sanitizer.

2. All Crane’s Representations and
   Obligations . All Crane acknowledges and agrees as follows:

(a) To provide at least one (1) on-site supervisor to
direct Labor’s Ready’s employees’ Work;

(b) To provide one restroom facility for the
employees’ use;

(c) To provide trash bags, shovels, brooms,
flashlights, 4-wheel carts, and other equipment for the [LR]
employees’ use during the performance of their [LR workers] Work.

… [Bracketed material and emphasis added].

(Tr. 219; Exhs. 7, A).

After
the contract was signed, work began at the site. Matt Johnson and Jaime Vernon,
Maintenance Superintendent, were the two All Crane employees who supervised the
LR employees at the site. The supervisors opened up the building in the morning
and told the LR employees what areas to clean out that day. The supervisors
also operated the forklift and the backhoe All Crane had provided at the site.
The backhoe was used to put debris into dumpsters that were placed in different
areas of the building, and the forklift was used to move the dumpsters into and
out of the building. LR employees cleaned up the pigeon waste on the floors and
in the stairwells by shoveling and/or sweeping the material and then putting it
into the dumpsters. They disposed of other debris from the upper floors to the
ground floor down open elevator shafts. They also threw debris from upper-level
windows to an open-air courtyard below. Mr. Boettner and Mr. Walsh visited the
site periodically during the course of the project. (Tr. 29-37, 42, 61-62,
76-79, 83, 178-80; Exh. A, at p. 1). Mr. Boettner admitted that All Crane was
responsible for supervising LR workers at the jobsite. (Tr. 231).

On April 27,
2009, the debris in the courtyard was about two stories high. Three LR
employees were told to go down to the courtyard, get up on the pile and drag
debris down from the pile so that the backhoe could pick up the debris and put
it in a dumpster. One of these employees was {redacted} . {redacted}
climbed up onto the pile. She was standing on top of the pile in the afternoon
when another LR employee, Gordon, threw a wooden table leg out a window on the
fifth floor. {redacted} was not wearing a hardhat and the wood
struck her left temple, causing a large lump on her head. The lump
“swelled up” to where she “could see it with” her own
eyes. {redacted} went looking for Mr. Johnson “screaming
about what had happened” and found him in a parking lot outside the
building. He offered to take her to the hospital, but she declined to go. She
did not receive any medical attention after her injury. Instead, Mr. Johnson
drove her to a local store where she obtained ice to apply to the lump on her
head. She testified that the next day, April 28, 2009, she “came back
[to the job]. I wanted to pretend like I was fine, and nothing was wrong with
me. And I have to make money. I had to do what I had to do. This was the only
job that I had offered to me at the time.” The lump went away after four
or five days. On April 29, 2009, two days after she was injured on the job, {redacted}
signed Exhibit B, an LR form captioned “Medical Treatment Refusal.”
The form stated that “I voluntarily choose to defer
medical treatment of the injury indicated above.” (Tr. 35-40, 59-60, 67, 184-85).

OSHA
received a complaint about the job site, and Sharon Danann, an industrial
hygienist (“IH”) with OSHA, entered the job site at about 10:30
a.m., May 5, 2009. She first met with Mr. Johnson, who told her that he was the
foreman and that her inspection could not proceed without Mr. Boettner. Messrs.
Boettner and Vernon arrived in about an hour, along with Attorneys Robert
Kracht and Charles Nemer. Mr. Walsh was also present, at least initially. The
IH conducted a brief opening conference. She then began her inspection walk
around at about 11:30 a.m. No employees were working during the inspection, although
they were present at the site. The IH saw an unguarded elevator shaft on the
fifth floor of the building, and she learned employees had been disposing of
items down the shaft. She also saw pigeon waste in various areas, and she
learned there were insufficient respirators and coveralls at the site to
protect employees from the dust created by sweeping and shoveling the waste.
She further learned employees had not had medical evaluations before using the
respirators and had not been fit-tested or trained in their use. The IH
additionally learned that hardhat use was not being enforced at the site and
that no medical consultation had been provided for an employee who had a head
injury. (Tr. 86-101, 130, 157-58, 182-85, 227; Exhs 1, at pp. 2-3, E, at p. 3).

The IH made
other observations. She noted there were paint particles on the floors the
workers had been cleaning up. She was concerned that the paint contained lead.
She also noted that a part of the building’s concrete ceiling had fallen
in and that employees had been cleaning up that material, which more than
likely contained silica. The IH also had concerns about asbestos. She learned
no asbestos survey or monitoring for lead had been done and that employees were
not told of the hazards of silica. (Tr. 101-02, 124-28, 148). The IH
interviewed four LR workers on site on May 5, 2009, and five or six more LR workers off site. She also interviewed four
All Crane employees, including Messrs. Johnson, Boettner, Vernon and Kirk Ward,
All Crane’s safety director. (Tr. 148-49).

IH Danann
noted in her Inspection Narrative (OSHA-1A) that:

Many of the employees reported
flu-like symptoms, typically during the project but some report symptoms a
month or more after the site was closed. Symptoms included coughing, wheezing
and other asthma-like symptoms; excessive fatigue; night sweats and chills; and
gastro-intestinal symptoms, including extreme nausea and pain. Some employees
had missed work due to illness but the employees had not sought medical
attention. In discussions about how they could obtain medical services, there
was concern expressed about filing workers compensation claims, with the fear
being that Labor Ready would no longer give them work if they did so (in other
words, would retaliate against them for filing claims). One employee had her
blood lead tested but it was very low (2 ug/dl) [2 micrograms per deciliter].

(Tr. 167; Exh.
E, at p. 3).

Whether
the Work at the Site was Construction

All Crane
asserts that the project involved “repairs, alterations and clean
out” of the building and was thus construction work. It also asserts that
it acted as a general contractor, subcontracting with various companies with
expertise in those areas ( i.e. , one to do repairs, another to do
cleanup, and still another to do trucking work). All Crane contends that the
citation incorrectly alleges violations of OSHA’s general industry
standards. It further contends that, because the construction standards apply
in this case, the citation items must be vacated. (R. Brief, at pp. 9, 12).

The
Secretary disputes All Crane’s assertions. She contends that All Crane
was properly cited, as the general industry standards apply to a given working
condition, unless they are preempted by industry-specific standards. See,
e.g., B&B Insulation, Inc. v. OSHRC , 583 F.2d 1364, 1369 n.9 (5 th
Cir. 1978); Brock v L.R. Willson & Sons, Inc. , 773 F.2d 1377,
1380-81 (D.C. Cir. 1985). She also contends the construction standards apply
only to actual construction work or to related activities that are an integral
and necessary part of construction work. Activities that otherwise could be
considered construction work should not be so considered when done solely as
part of a non-construction operation. Royal Logging Co. , 7 BNA OSHC 1744,
1749-50 (No. 15169, 1979); aff’d, 645 F.2d 822 (9 th
Cir. 1981). As the Secretary notes, the Commission focuses on the work activity
itself, rather than on the physical site . Id . As she further notes, the
contract that All Crane signed describes the work as “perform[ing]
general debris clean-up work, dispos[ing] of debris into an elevator shaft, and
broom-sweep[ing] floors and stairwells.” See Exh. 7, at p. 2; s ee
also S. Reply Brief, at pp. 2-4. I agree with the Secretary. I find that the general industry standards, and not the construction
standards, apply. All Crane’s arguments are rejected.

Whether
All Crane was the Employer of the Employees at the Site

All
Crane contends it was not the employer of LR’s workers at the site for
the same reason above, i.e. , it acted as a general contractor and
subcontracted with various companies, including LR. (R. Brief, at pp. 9-11).
The Secretary contends All Crane was the employer of LR’s workers at the
site, based upon the facts of this case and the factors set out in the Supreme
Court’s Darden decision. Nationwide Mut. Ins.Co. v. Darden ,
503 U.S. 318 (1992). As the Secretary notes, the Court stated in Darden
as follows:

In determining whether a hired party is an employee
under the general common law of agency, we consider the hiring party’s
right to control the manner and means by which the product is accomplished.
Among the other factors relevant to this inquiry are the skill required; the
source of the instrumentalities and tools; the location of the work; the
duration of the relationship between the parties; whether the hiring party has
the right to assign additional projects to the hired party; the extent of the
hired party’s discretion over when and how long to work; the method of
payment; the hired party’s role in hiring and paying assistants; whether
the work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the tax
treatment of the hired party. (Citations omitted).

Id . at 323-24.

The Supreme
Court has held that, in the context of a federal labor statute, the control
exercised over a worker is the “principal guidepost.” Clackamas
Gastroenterology Assocs., P.C. v. Wells , 538 U.S. 440, 448 (2003). And the
Commission has held that, regardless of the employees’ employment
relationship with one company, another company may qualify as an
“employer” under the Act if that other company exercises control. Barbosa
Group, Inc. , 21 BNA OSHC 1865, 1867(No. 02-0865, 2007). (S. Brief, at pp.
11-12).

The
Commission addressed a situation analogous to the one here in Froedtert Mem.
Lutheran Hosp., Inc. (“Froedtert”) , 20 BNA OSHC 1500, 1508 (No.
97-1839, 2004). There, the Commission used the factors in Darden and
found that housekeepers from a staff leasing company were employees of the
hospital as it directed their work, supplied their tools and materials,
assigned shifts and supervised their work. 20 BNA OSHC at 1506-08. The Court
agrees with the Secretary that, upon applying the Darden factors to the facts
of this case, All Crane was the employer of the LR employees at the work
site. 

The Darden
Factors

1.
The hiring party’s right to control the manner and means by which the
product is accomplished . The contract between All Crane and LR specifically
addressed “clean-up work.” (Exh. 7, at p. 2). It also specifically
set out All Crane’s responsibility for providing adequate supervision,
complying with safety regulations, and providing any necessary site-specific safety
training and equipment. (Exh. 7, at p. 1, ¶¶ 2, 4). The contract
further required LR to perform the work “in strict compliance with the
Contract and all specifications and/or directions provided by All Crane”
and “in accordance with the schedule provided by All Crane.” (Exh.
7, at p. 2, ¶ 1(c)-(d)). Mr. Boettner and Mr. Johnson both testified to
the effect that All Crane directed the LR workers as to the areas to clean up,
the methods for doing so, and the means of disposing of debris. (Tr. 79, 179,
200).

The record
shows that LR did not direct the work at the site. Mr. Boettner selected LR as
the company that would provide the temporary labor at the site. He never
expected LR to assign jobs, supervise or direct the workers. (Tr. 70, 83). The
contract did not require LR to provide any supervision at the site. Rather, it required All Crane to provide “at least one (1)
on-site supervisor to direct [LR]’s employees’ Work.” {redacted}
testified that no one from LR ever directed her work at the site, that
All Crane did so, and that when she had questions about safety she went to Mr.
Johnson. (Tr. 30-31).

In view of
the above, All Crane directed and controlled the day-to-day activities of the
LR workers at the site. This factor weighs in favor of finding that the workers
were employees of All Crane. As noted above, this factor is the
“principal guidepost.”

2. The
   source of the instrumentalities and tools . The record shows that All Crane
   provided the LR employees with most of the instrumentalities and tools they
   used. The contract required All Crane to provide “trash bags, shovels,
   brooms, flashlights, 4-wheel carts and other equipment for the employees’
   use during the performance of their Work.” (Exh. 7, at p. 2, ¶
   2(c)). All Crane also provided the forklift and backhoe at the site. (Tr. 78).
   The contract obligated LR to provide and require the use of certain safety
   equipment, i.e. , hardhats, safety glasses, dust masks, gloves and
   steel-toe boots. (Exh. 7, at p. 2, ¶ 1(f)). LR provided at least some of
   this equipment to the employees, but it did not enforce the equipment’s
   use as it provided no supervision at the site. (Tr. 29-31, 36-37, 43-44, 52, 61-62, 231). The contract clearly stated
   that All Crane was responsible for supervising the employees and including them
   in its safety program and complying with safety regulations. (Exh. 7, at p. 1,
   ¶¶ 2, 4). Further, All Crane provided coveralls to LR’s workers
   at the site. (Tr. 40-41, 64, 192-93). And, Mr. Johnson indicated that, when LR
   did not provide items it should have, such as gloves and dust masks, All Crane
   supplied the employees with “what they needed.” (Tr. 193-94,
   203-04).

Based on the
above, this factor supports a finding that All Crane was the employer of the LR
workers at the site.

3. The
   location of the work . The work took place in a building All Crane owned.
   This factor weighs in favor of finding that All Crane employed the LR workers
   at the site.

4. The
   duration of the relationship between the parties . The contract between LR
   and All Crane indicates a relationship of indefinite duration for the cleaning
   up of the site. This factor bolsters a finding that the supplied workers were
   employees of All Crane.

5. Whether
   the hiring party has the right to assign additional projects to the hired party .
   The record shows that All Crane had the right to assign additional projects to
   the workers. Mr. Johnson, for example, testified that he would assign
   additional projects to the workers once they finished a project. (Tr. 200).
   This factor supports a conclusion that All Crane was the employer of the
   employees LR supplied to work at the site.

6. The
   extent of the workers’ discretion over when and how long to work . The
   record shows the LR workers had no discretion in this regard. All Crane set the
   workers’ schedule, and the contract stated the work was to be done
   “in accordance with the schedule provided by All Crane.” (Exh. 7,
   at p. 2, ¶ 1(d)). This factor weighs in favor of finding that the LR
   workers were employees of All Crane.

I find the
above factors to be the most significant in regard to this case. This is
especially true as to the first factor, that of control. The other factors set
out in Darden (for example, the skill required and the hired
party’s role in hiring and paying assistants) are either not relevant or
not that important in the context of this case. And, while LR’s
“regular bill rate” included wages and the required withholdings
and insurance, this was an administrative matter that had no bearing on which
entity controlled the work and the workers at the site. Based upon my findings
with respect to the foregoing factors, I conclude that All Crane was the
employer of the LR workers at the job site.

Jurisdiction

Respondent
All Crane has admitted all of the elements necessary to establish jurisdiction
in this matter. See All Crane’s Answer, ¶¶ 1, 2 and 3. I
find, therefore, that the Commission has jurisdiction over the parties and the
subject matter in this case.

The
Secretary’s Burden of Proof

To
demonstrate a violation of a specific OSHA standard, the Secretary must prove
that: (1) the cited standard applies, (2) its terms were violated, (3)
employees were exposed to the violative condition, and (4) the employer knew or
could have known with the exercise of reasonable diligence of the violative
condition. Astra Pharmaceutical Prod. , 9 BNA OSHC 2126, 2129 (No.
78-6247, 1981).

Serious
Citation 1, Item 1

Item
1 alleges a violation of 29 C.F.R. 1910.23(b)(1), which requires “[e]very
wall opening from which there is a drop of more than 4 feet” to be
guarded. The citation alleges there was an unguarded elevator shaft on the
fifth floor in the northwest corner of the building. (Tr. 229; Exh. H, at p.
4). IH Danann identified Exhibit 1, page 2 as a photo she took of an unguarded
elevator shaft on the fifth floor. Mr. Boettner also admitted that the shaft
was open during IH Danann’s inspection. (Tr. 231). She learned employees
had been disposing of items down the shaft, which was a drop of about 75 feet.
(Tr. 90-91). {redacted} testified there were two open elevator
shafts on the fifth floor. She said she had worked near one, like the one in
Exhibit 1, when she was sweeping and shoveling pigeon waste on that floor. She
also said she had swept near the edge of the open shaft. She had seen other
workers in the area sweeping, shoveling and cleaning materials out. There was
no guarding or barrier in front of the open shaft when she was working there.
(Tr. 32-34).

The
Secretary notes that besides the above, the contract itself stated that the
work included “dispos[ing] of debris into an elevator shaft.” (Exh.
7, at p. 2). It also stated that LR was to “designate two (2) employees
to work the elevator shaft area at the Jobsite who are qualified to perform
such Work.” (Exh. 7, at p. 2, ¶ 1(e)). Further, Mr. Boettner
testified that All Crane “wanted two [LR] off to the side of that
elevator shaft, to prevent anybody coming in too close to that [shaft]. It was
also understood that the people in the building would bring that debris –
construction debris, two by fours, wood tables, whatever the case may be, up to
the elevator shaft and two other – one other [LR] or maybe two other [LR]
people would push that in to the shaft.” Mr. Boettner also admitted that the contract required LR workers to
dump debris down the elevator shaft. (Tr. 84, 231-33; Exh. 7, at p. 2, ¶
1(e); S. Brief, at pp. 18-19).

All
Crane contends there was no violation of the standard; no employees were
exposed to the cited shaft at the time of the inspection, as work there had
been completed. (R. Brief, at p. 13). That contention is rejected. The
testimony of the IH, {redacted} and Mr. Boettner shows that work
had in fact taken place near the cited shaft, even if no one was working there
when the IH was at the site on May 5, 2009. (Tr. 32-34, 154). That no LR
employees were exposed at the time of the inspection itself is of no moment.
The Court finds that {redacted} and other LR workers were exposed
to an unguarded elevator shaft located on the fifth floor. (Exh. H, at p. 4). The Secretary has met all the elements of her
burden of proof as to this item. Item 1 is affirmed as a serious violation, as
it is clear that a fall down a 75-foot elevator shaft would most likely be fatal.

The
Secretary has proposed a penalty of $3,500.00 for this item. In determining an
appropriate penalty, the Commission is required to give due consideration to
the gravity of the cited condition and to the employer’s size, history
and good faith. See section 17(j) of the Act. The IH testified the
gravity of this item was high, with greater probability, as a fall down the
shaft would have been fatal. She also testified All Crane was given reductions
of 20 and 10 percent, for size and lack of history of violations in the
previous three years. No credit was given for good faith. (Tr. 128-29; Exh. F, at p. 1). I find the proposed penalty
appropriate. A penalty of $3,500.00 is assessed.

Serious
Citation 1, Item 2

Item
2 alleges a violation of 29 C.F.R. 1910.132(a), which provides that:

Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, shall be provided,
used, and maintained in a sanitary and reliable condition wherever it is
necessary by reason of hazards of processes or environment, chemical hazards,
radiological hazards, or mechanical irritants encountered in a manner capable
of causing injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact.

The citation
alleges that an adequate supply of coveralls was not available to employees who
were cleaning up pigeon fecal material. It also alleges that hardhat use was
not enforced for employees working in the interior courtyards when debris was
being thrown from the fifth floor.

The record
clearly shows that the work the LR employees did at the site included sweeping
and shoveling pigeon waste. (Tr. 33-35, 92-93, 200, 206). IH Danann identified
Exhibit 1, at p. 3 as two photos she took on the building’s fourth floor.
The first shows pigeon waste and feathers on equipment around which workers had
cleaned. The second shows an area where workers had been sweeping pigeon waste.
The IH testified that her concern with the pigeon fecal matter was histoplasmosis,
a fungus that grows in bird waste. Shoveling or sweeping such material creates
dust, which, when inhaled, can cause symptoms similar to an acute respiratory
influenza. Such symptoms can persist for months or years if untreated, and the
condition can cause blindness or even death. The IH said the best way to clean
up bird waste is to use a suction system. If protective equipment is used
instead, workers must have appropriate respirators with proper fit and
coveralls that include hoods and foot coverings. The IH also said that cleaning
up or changing clothing before leaving the site is essential so vehicles are
not contaminated. IH Danann learned, in her interviews of employees, that there
were not enough coveralls at the site for the LR workers. She also learned that
many LR workers who had been at the site had flu-like symptoms that were
consistent with histoplasmosis. (Tr. 91-96, 130, 148-49, 157-58, 167-68).

{redacted}
testified there were disposable suits at the site left over from a
previous abatement effort that All Crane offered to employees for cleaning up
pigeon waste. She described the suits as “lightweight” and “like
paper,” and she said they were meant to be discarded after one day. She
also said that while “paper suits” were initially available, they
ran out after a “day or two,” after which she and others would go
through the damaged suits to find the “best one.” Eventually, there
were no more usable paper suits. {redacted} stated the cleanup
work, that included shoveling fecal matter into a dumpster, created a lot of
dust, which got on her clothes, and that she did not change her clothes before
leaving the site for home. She further stated that no one ever told her she was
required to wear the paper suits or coveralls. (Tr. 40-43, 157-58).

As the IH
indicated, protective clothing was required at the site so that employees could
remove it at the end of their work day and not contaminate their vehicles or
homes with the dust containing the pigeon fecal matter. The IH has an M.S. in
environmental health sciences and industrial hygiene from the Harvard School of
Public Health. She has been an IH with OSHA for almost 20 years. (Tr. 86-88, 93). I
observed her demeanor as she testified and found her a sincere and believable
witness. I thus credit her opinions about the hazards of the work at the site
and the need for the protective clothing. I also observed {redacted} demeanor
as she testified, including her facial expressions and body language. I found
her a believable witness, and her testimony is supported by what the IH learned
when she spoke to the LR employees. {redacted} testimony is also
credited. Under the contract, LR agreed to provide its employees with specific
items of safety equipment that included “hard hat, safety glasses, dust
mask, gloves, and steel-toe boots.” (Exh. 7, at p. 2, ¶1(f)). All
Crane was obligated under the contract to provide “other equipment”
for employees to use during the performance of their work at the building.
(Exh. 7, at p. 2, ¶ 2(c)). All Crane failed to provide sufficient and
adequate coveralls to LR workers at all times when working at the job site.
Based on {redacted} testimony and that of the IH, I find the
standard applies, that the terms of the standard and the contract were not met,
and that employees, including {redacted} , were exposed to the
cited condition. The knowledge element is also met. All Crane knew what the
cleanup work involved and it supplied paper protective suits early-on. (Tr.
40-41, 86-88, 95-96, 157-58, 191-93, 200, 206; Exh. F, at p. 5). The Secretary
has shown the alleged violation.

As to the
hardhat allegation, the circumstances of {redacted} head injury are
set out earlier in this decision, supra . {redacted} testified
that LR provided her with a hardhat but that no one ever told her to wear it.
She indicated she often did not wear her hardhat and that many of the LR
workers did not wear their hardhats. The two workers, Chuck and Joanne, who
were in the area with her when she was struck, also were not wearing hardhats.
She said that hardhat use was never enforced and that All Crane personnel, like
Messrs. Boettner and Johnson, had seen her working without her hardhat. (Tr. 36-37, 52, 68). The Court finds that three LR workers, including {redacted} ,
were not wearing hardhats while working at the job site on April 27, 2009.

Mr. Johnson
was not present when {redacted} was injured, but he saw her right
after the incident. He testified that she had her hardhat in her hand at the
time. He also testified he had always seen her wearing a hardhat when one was
required. He said the “whole crew was pretty good about that” and
that “[e]veryone there wore their hardhats in the areas they were
supposed to.” He indicated {redacted} could have been hit
in the head even with a hardhat on, as “something could have [come]
up.” (Tr. 189-91, 201-03).

Based on the
record, the Court finds that All Crane violated the cited standard. {redacted}
has been found to be credible. And Mr. Johnson’s testimony, that
something could have come up and struck {redacted} in the
forehead or temple, even if she had a hardhat on, is simply not believable. (Tr. 201-03). The record shows that the standard applies, that its
terms were not met, and that employees were exposed to the cited hazard.

The record
also shows All Crane had either actual or constructive knowledge of the cited
condition. {redacted} testified that Messrs. Boettner and Johnson
had seen her working without a hardhat. (Tr. 36-37). And, as the Secretary
asserts, All Crane would have known of the condition if it had exercised
reasonable diligence. In particular, if All Crane had provided adequate
supervision, it would have known the LR employees were not using their
hardhats. The building had five floors and over 600,000 square feet. The
employees could be assigned to work anywhere in the building. The two
supervisors were Messrs. Johnson and Vernon. Mr. Johnson was usually on the
ground floor, and Mr. Vernon was on the upper floors. (Tr. 29-31, 83). The
record indicates it often was difficult to find a supervisor. When the IH
arrived, for example, she entered the facility and had to call out for some
time before Mr. Johnson responded. And, when {redacted} was
injured, she had to go looking for Mr. Johnson. She found him outside the
building in a parking lot. (Tr. 37, 189-90). Mr. Boettner testified he made
“spot checks” during his visits to see if the LR workers were
wearing their safety equipment. (Tr. 82, 222-25). Such visits cannot replace
adequate daily supervision. It is clear that no such supervision was provided.
The Secretary has proved knowledge and the alleged violation.

Item 2 is
affirmed as a serious violation. The IH’s testimony above establishes the
serious nature of the failure to provide sufficient coveralls at the site. And
while {redacted} head injury healed without medical treatment,
her injury plainly could have been more serious, or even fatal. The Secretary
has proposed a penalty of $1,750.00 for Item 2. The IH testified this item had
low severity, but greater probability. (Tr. 130; Exh. 5, p. 5). On the basis of
this testimony, and taking into account the other penalty factors, I find the
proposed penalty appropriate. A penalty of $1,750.00 is assessed.

Serious
Citation 1, Item 3

Item
3 alleges violations of OSHA’s respiratory protection standard, as
follows:

Item 3a – 29 C.F.R. 1910.134(a)(2) – A
respirator shall be provided to each employee when such equipment is necessary
to protect the health of such employee.

Item 3b – 29 C.F.R. 1910.134(e)(1) – The
employer shall provide a medical evaluation to determine the employee’s
ability to use a respirator, before the employee is fit tested or required to
use the respirator in the workplace.

Item 3c – 29 C.F.R. 1910.134(f)(1) – The
employer shall ensure that employees using a tight-fitting face piece
respirator pass an appropriate qualitative fit test (QLFT) or quantitative fit
test (QNFT) as stated in this paragraph.

Item 3d – 29 C.F.R. 1910.134(k)(1) – The
employer shall ensure that each employee can demonstrate knowledge of why the
respirator is necessary and how improper fit, usage, or maintenance can
compromise the protective effect of the respirator.

The record
shows that LR provided N95 disposable, filtering face piece respirators
(“dust masks”) for the LR workers to use at the site. According to {redacted} ,
LR provided one dusk mask a day to each employee. The masks got dirty easily and if they got wet they were unusable,
such that she and others at times cleaned up the pigeon waste without wearing
masks. {redacted} was neither evaluated medically to determine
her ability to use the masks nor offered the opportunity for such an
evaluation. She was not fit tested before using a mask, and no one ever trained
her in how to use one. She was never told she was required to use a mask. (Tr.
43-46). The IH testified the masks were necessary to protect the employees. According to the IH, a medical evaluation was necessary to ensure
using the mask would not strain the employee’s heart or lungs. A fit test
was required to ensure proper fit; without proper fit, the employee would not
be protected. And without training, the employee would not know how to use the
mask properly. The IH did not believe the masks were being used properly due to
the fact that several of the masks employees showed her were dirty on the
inside, indicating that there was leakage and that they were not a good fit. IH
Danann testified that adequate dust masks or respirators were necessary to
protect the workers’ health. Without these, the workers were breathing
the spores of the histoplasma capsulatum fungus. (Tr. 95-99).

Messrs.
Boettner and Johnson both testified that medical evaluations, fit testing and
training in the use of the masks were not provided by All Crane for the LR
workers at the site. (Tr. 73-74, 203-04). And yet, under the contract, All Crane was obligated to “provide
any necessary site-specific safety training and equipment” except as
otherwise stated in the addendum. (Exh. 7, at p. 1, ¶ 4). All Crane failed to provide training in the use of masks to the LR
workers. IH Danann also testified that LR did not have a comprehensive dust
mask respiratory protection program. (Tr. 137-39). The record indicates that
Mr. Johnson sometimes gave masks to the employees. (Tr. 64, 193). It also indicates
that in one instance, Mr. Boettner called Mr. Walsh and told him to provide
more masks. Mr. Boettner testified:

Q: Was there ever a time when
you learned that there may be an inadequate supply of respirators on the job
site?

A: Personally.

Q: Okay. Tell us about that.

A: I went down just to take a
little walk around and see how progress was going. And I could tell that some
of the Labor Ready people had dirtied masks. And I asked if there was any, and
I don’t know who told me but they said that they were out.

Q: What did you do in response
to that?

A: I immediately called Mark
Walsh and I said your people are not properly protected, and you better get
some respirators down here today.

(Tr. 222, 224).

Mr. Boettner further
testified that he made no effort to return to the site to check to insure LR
workers were wearing proper dust masks. (Tr. 222-23).

{redacted}
testified that she and others, at times, worked without masks as not
enough were available. (Tr. 43-44). And the IH testified that some masks workers brought her
were dirty inside, indicating improper fit. (Tr. 97-98). The record
demonstrates the alleged violations. The knowledge element is established
through the testimony of Messrs. Boettner and Johnson and the IH, and the
Court’s prior discussion of All Crane’s actual or constructive
knowledge of conditions at the job site.

This item is
affirmed as serious; the IH’s testimony shows the serious nature of the
cited conditions. (Tr. 93-99, 167-68). The proposed penalty for this item is
$1,400.00. The severity of the violations was medium, and the probability was
lesser. (Tr. 130; Exh. F, at pp. 9, 12, 15, 18). I find the proposed penalty
appropriate, and it is assessed.

Serious
Citation 1, Item 4

Item
4 alleges a violation of 29 C.F.R. 1910.151(a), which requires the employer to
“ensure the ready availability of medical personnel for advice and
consultation on matters of plant health.” The IH testified this item was
based on the fact that All Crane did not require {redacted} to
have a medical consultation after her head injury. The IH said only a medical
professional can determine how serious such a head injury is. She also said the
consequences could have been very serious if {redacted} had a
concussion and simply gone home. She noted that if an employee refuses to go
for medical treatment, it is the employer’s responsibility to insist that
the employee seek medical consultation. (Tr. 99-101, 159-60). When there is a
head injury, concerns for an employee’s well being are not necessarily
alleviated in the event an employee says he or she does not want medical
treatment. The IH’s testimony in this regard was as follows:

Q: Take a look back at the head
injury. Doesn’t it alleviate your concern if the employee said she
didn’t want medical treatment after her head injury?

A: Absolutely not.

Q: Why not?

A: The employee herself or
himself is not qualified to make that determination. It’s very common for
employees to say I’m fine. They can have a host of motivations for
feeling that they may not be employed by the company. Again, that is very, very
common. And that could be a motivation for not seeking medical attention. And
we see this in the kind of form that has already been introduced to this
proceeding. That absolutely flies in the face of what is known medically about
what kind of attention is needed, so that we can determine whether
there’s a serious underlying condition or not, as a result of an injury.

(Tr. 100-01).

All
Crane contends it did not violate the standard as it offered to take {redacted}
to the hospital and she refused to go. All Crane also contends that {redacted}
was not a credible witness in this matter. It notes she first testified
it was only “mentioned” that she might want to go to the hospital.
(Tr. 39). In this regard, she testified:

Q: Good question. Did anybody
from All Crane tell you to go to the hospital and get your head looked at?

A: I believe it was mentioned,
you might want to go to the hospital. But it was not a requirement. It was not
a no, we’re going to go and that’s it. Look at your head.
It’s swelling. It’s black. It’s blue. Matt at that time had a
cell phone on him, and he was taking photos of my injury.

(Tr. 38-39).

Later, {redacted}
agreed Mr. Johnson had offered to take her and she refused. (Tr.
59-60). Also, she initially testified that she did not sign a form refusing
medical treatment. (Tr. 39-40). Later, she agreed she had signed Exhibit B two
days after her injury, as noted above. (Tr. 52-54, 59-60; Exh. B). As stated atop the Medical Treatment
Refusal form, the form may be viewed as a company instrument designed to
inhibit an employee injured on the job from seeking medical treatment since it
requires the employee to “IMMEDIATELY initiate and complete the full
claims reporting process” should the employee seek treatment for his or
her injury. All Crane claims that {redacted} did not want to go to
the hospital as LR would have required a drug test and she feared she would
fail it. It further claims that she left the job site angry about her injury
and about being reassigned to another area. (R. Brief, at pp. 16-17, 19-20).

I
disagree with All Crane’s claim about why {redacted} did
not want to go to the hospital. Mr. Johnson testified he overheard her say she
liked to “smoke pot,” and he concluded she did not want to go
because she would fail a drug test. (Tr. 187-88). There is no evidence,
however, that LR would have required a drug test if {redacted} had
gone to the hospital for a head injury or otherwise consulted with medical
personnel. (Tr. 39-40). Furthermore, Mr. Johnson has been found to not be a
believable witness, and his testimony about {redacted} alleged
drug use around April 27, 2009 is not credited. Finally, I disagree with All Crane’s claim that {redacted}
left the site angry about her injury and about being reassigned, such
that she “colored” her testimony in this matter. (R. Brief, at p.
16). {redacted} testified that on April 27, 2009 she was
“really upset” about her injury and because she “knew that LR
was going to pull me off the job because they were so reluctant to send me as a
women out there to the job, and now I’m hurt.” (Tr. 37-38). She
also testified she was unhappy about the reassignment as she was to be separated
from Mr. Johnson and the others she been working with as a group. (Tr. 67,
225-26). The Court rejects All Crane’s arguments that {redacted} was
untruthful when she testified that she was not concerned about failing a drug
test on April 27, 2009.

Turning
to whether All Crane violated the standard, All Crane’s contention that
it did not is rejected. Mr. Johnson testified that he offered at least four
times to take {redacted} to the hospital. (Tr. 186). I find that
he offered once, based on {redacted} testimony, and that she
declined. (Tr. 38, 59-60). As the IH indicated, this was insufficient. Under
these circumstances, All Crane was obligated to do more than make a
half-hearted offer to drive {redacted} to a hospital. All Crane
was obligated to advise {redacted} after she suffered her head
injury that medical personnel were readily available for advice and
consultation. Mr. Johnson did not tell {redacted} that she needed to,
or should, have her head injury examined by a doctor or other medical
personnel. (Tr. 205). She was not treated by anyone at the building trained in
first aid. No one contacted a physician or nurse by telephone for advice or
consultation. Instead, Respondent essentially argues it was prudent for Mr.
Johnson to allow {redacted} , after suffering a head injury, to
make a supposedly sound decision to forego seeking advice or consultation from
medical personnel at a time when he believed that she was subject to the
effects of having recently smoked marijuana. (R. Brief, at p. 19). Such a
position is irresponsible. All Crane’s action in handling the incident
was unreasonable. Item 4 is affirmed. All Crane disputes the serious classification,
noting Mr. Johnson’s testimony that the injury was a “small
bump.” (Tr. 184). {redacted} described her injury on
Exhibit B as a “large lump” on her forehead. (Exh. B). I find that {redacted}
injury was serious and that it could easily have been much more serious.
This item is thus affirmed as serious.

The
Secretary has proposed a penalty of $2,450.00 for this item. The IH testified
this item had medium severity and greater probability. (Tr. 131; Exh. F, at p.
21). The Court finds the proposed penalty appropriate. A penalty of $2,450.00
is therefore assessed.

Serious
Citation 1, Item 5

Item
5 alleges two violations of OSHA’s lead standard. The cited standards
provide as follows:

Item 5a – 29 C.F.R 1910.1025(d)(2) – Each
employer who has a workplace or work operation covered by this standard shall
determine if any employee may be exposed to lead at or above the action level.

Item 5b – 29 C.F.R.
1910.1025(l)(1)(i) – Each employer who has a workplace in which there is
a potential exposure to airborne lead at any level shall inform employees of
the content of Appendices A and B of this regulation.

Both
IH Danann and {redacted} testified they had concerns about the
paint they saw in the building, as lead is common in older paints. {redacted} testified that there was no discussion at the
site about the hazards of lead. The IH took two samples of white “paint
peelings” and one sample of green paint peelings from the fourth floor of
the west side of the building during her inspection. The IH had the samples
sent off for analysis at OSHA’s Salt Lake Technical Center. (Tr. 27-28, 46-47, 101-25; Exh. 3). There was no evidence as to how
old the paint was or when it was applied to the building.

Under the
lead standard, employers are required to “monitor employee
exposures” and base:

initial determinations on the
employee exposure monitoring results and any of the following, relevant
considerations:

(A) Any information,
observations, or calculations which would indicate employee exposure to lead;

(B) Any previous measurements of
airborne lead; and

(C) Any employee complaints of
symptoms which may be attributable to exposure to lead.

(29 C.F.R.
§ 1910.1025(d)(2)(3)).

In this
instance, the Secretary has failed to prove that there was sufficient
information, observations, or calculations which would indicate employee
exposure to lead; any previous measurements of airborne lead; or any employee
complaints of symptoms which may be attributable to exposure to lead in the
building that were known, or through the exercise of due diligence should have
been known, to Respondent on or before April 27, 2009. The LR employees did not
engage in any demolition, blasting or scraping of paint while working in the
building. Rather, they swept the floors and disposed of debris. (Tr. 161, 229).

There is no
evidence that shows information or calculations which indicated employee
exposure to lead in the building on or before April 27, 2009. There is no
evidence of any previous measurements of airborne lead in the building. There
is no evidence of any potential exposure to airborne lead at any level in the
building. And there is no evidence of any employee complaints of symptoms
reported to either All Crane or LR before IH Danann’s inspection. The
personal observations of the IH and {redacted} were insufficient
to establish a presence of lead in the building. Respondent had no obligation
to monitor for lead exposure or inform employees of Appendices A and B on or
before April 27, 2009. The Court further concludes that the Secretary failed to prove that
employees were exposed to the hazard of lead exposure, airborne or otherwise,
in the building or that Respondent had knowledge of the cited conditions. The
Secretary has failed to prove violations of either of the cited standards . Accordingly,
Serious Citation 1, item 5, is vacated in its entirety.

Serious
Citation 1, Item 6

Item
6 alleges a violation of 29 C.F.R. 1910.1200(h), which is a part of OSHA’s
hazard communication standard. The cited standard states that:

Employers shall provide employees with effective
information and training on hazardous chemicals in their work area at the time
of their initial assignment, and whenever a new physical or health hazard the
employees have not previously been trained about is introduced into their work
area.

IH
Danann testified that she was concerned about exposure to silica at the site.
According to the IH, materials like concrete, cement, brick and mortar
virtually always contain silica sand. She said that in one wing of the building
a whole section of the roof had collapsed; she believed that material contained
silica. She also said the cleanup work the employees were doing included the
material that had fallen on the floor. The IH noted that if employees are not told of the hazards of a
particular substance, they may not take the proper precautions to protect
themselves. She further noted that inhaling silica can cause silicosis, a
progressive lung disease with no treatment or cure that is similar to
asbestosis. Once silica is inhaled into the lungs it stays in the lungs and it
is “progressively fatal.” (Tr. 124-28; Exh. F, at p. 30).

{redacted}
testified that no one at the site told her of the hazards of silica or
any other hazardous chemicals. She also stated that she did not receive any
training relating to silica before she started working at the job site. (Tr. 47-48). Mr. Boettner conceded that no such hazardous chemical
information or training was provided by All Crane. (Tr. 76, 126; Exh F, at p. 31, ¶23). Based on the record, the
Court finds that the standard applies, that its terms were not met and that
employees were exposed to the cited hazard. Mr. Boettner testified that All
Crane was unaware of the hazards of silica with respect to the cleanup work at
the site. (Tr. 76). The Court finds, however, that All Crane could have known
of those hazards with the exercise of due diligence. The Court further finds
that this item was a serious violation. Item 6 is thus affirmed as serious.

A penalty of
$1,750.00 was proposed for this item. The record shows that this item had high
severity and lesser probability. (Tr. 31-32; Exh. F, at p. 29). I find the
proposed penalty appropriate. A penalty of $1,750.00 is assessed.

Other
Citation 2, Item 1

This
item alleges a violation of 29 C.F.R. 1910.1001(j)(2)(i), which provides that:

Building and facility owners shall determine the
presence, location, and quantity of ACM and/or PACM at the work site. Employers
and building and facility owners shall exercise due diligence in complying with
these requirements to inform employers and employees about the presence and
location of ACM and PACM.

{redacted}
testified she was concerned about asbestos due to the building’s
age. Upon arriving at the site, she saw air purifiers that are used in
asbestos abatement and bags marked with “asbestos” on them. She
also saw “paper suits” like those that are worn for asbestos
abatement. {redacted} had done asbestos removal work before and was
familiar with that type of equipment. There was no such work done while she was
there, and she did not know if it had been completed. (Tr. 27-28, 40, 60-61).

When
IH Danann asked Mr. Boettner about it, he was not sure whether an asbestos
survey had been done. He thought another entity might have done one. The IH
researched the matter and learned that asbestos removal permits had been issued
twice in the past. She was never able to locate an asbestos survey. (Tr. 128; Exh
F, at p. 33).

Mr.
Boettner testified he had no knowledge of whether All Crane did an asbestos
survey at the site. (Tr. 78). In light of his testimony, and that of the IH and {redacted} ,
I find that the standard applies, that All Crane did not comply with it, and
that employee access has been shown. In addition, All Crane should have known
it was required to conduct an asbestos survey. This item is affirmed as an
other violation; the record shows the condition had minimal severity and lesser
probability. (Tr. 132; Exh. F, at p. 32). No penalty was proposed for this
item, and none is assessed.  

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

1.
Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. 1910.23(b)(1),
is affirmed, and a penalty of $3,500.00 is assessed.

2.
Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. 1910.132(a), is
affirmed, and a penalty of $1,750.00 is assessed.

3.
Item 3 of Serious Citation 1, alleging violations of 29 C.F.R. 1910.134(a), 29
C.F.R. 1910.134(e)(1), 29 C.F.R. 1910.134(f)(1) and 29 C.F.R. 1910.134(k)(1),
is affirmed, and a penalty of $1,400.00 is assessed.

4.
Item 4 of Serious Citation 1, alleging a violation of 29 C.F.R. 1910.151(a), is
affirmed, and a penalty of $2,450.00 is assessed.

5.
Item 5 of Serious Citation 1, alleging violations of 29 C.F.R. 1910.1025(d)(2)
and 29 C.F.R. 1910.1025(l)(1)(i), is VACATED.

6.
Item 6 of Serious Citation 1, alleging a violation of 29 C.F.R. 1910.1200(h),
is affirmed, and a penalty of $1,750.00 is assessed.

7.
Item 1 of Other Citation 2, alleging a violation of 29 C.F.R.
1910.1001(j)(2)(i), is affirmed, and no penalty is assessed.

/s/ 

The
Honorable Dennis L. Phillips

U.S.
OSHRC JUDGE

Date: 14 Mar 2011

Washington,
D.C.