Era-Valdivia Contractors, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Era-Valdivia employees painted a water tower from suspended Spider baskets about 80 feet above the ground. One painter climbed outside his basket and tied his harness lanyard to the scaffold's suspension cable instead of an independent lifeline. The judge vacated a general-duty item based on standing on the basket rail because OSHA did not prove that the conduct itself, with secondary fall protection in use, was a recognized serious hazard. He affirmed the independent-lifeline item but vacated a separate anchorage-capacity item because undisputed evidence showed the suspension cable could support 10,000 pounds. The employee-misconduct defense failed because the foreman watched the open and obvious condition without correcting it, and a $2,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.451(g)(3)(i); 29 C.F.R. § 1926.502(d)(15)
• Outcome: The independent-lifeline item was affirmed with a $2,000 penalty, while the general-duty and anchorage-capacity items were vacated.
• Key point: A suspended-scaffold worker's personal fall protection must be connected to a lifeline independent of the scaffold, even when the scaffold cable can support the required load.

Full text (OSHRC public release)

                       UNITED STATES OF AMERICA
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

              Complainant,
                                                        OSHRC Docket No. 10-1384

v.

Era-Valdivia Contractors, Inc.,

              Respondent.

Appearances:

    Lisa Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois
    For Complainant

    Robert Brown, Esq., Laner, Muchin, Dombrow Law Firm, Chicago, Illinois
    For Respondent

Before: Administrative Law Judge Patrick B. Augustine

                                    DECISION AND ORDER

                                         Procedural History

    This proceeding is before the Occupational Safety and Health Review Commission ("the

Commission") pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. §651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA")

conducted an inspection of an Era-Valdivia Contractors, Inc. ("Respondent") worksite in Morton

Grove, Illinois on April 20, 2010. As a result of that inspection, OSHA issued a Citation and

Notification of Penalty (“Citation”) to Respondent alleging three violations of the Act.

Respondent timely contested the Citation. The trial was conducted in Chicago, Illinois on April

22, 2011. Each party filed timely post-trial briefs.
 Jurisdiction

   Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of

the Act. At all times relevant to this action, Respondent was an employer engaged in a business

and industry affecting interstate commerce within the meaning of Section 3(5) of the Act, 29

U.S.C. §652(5). See Complaint and Answer; Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

                                    Applicable Law

   To establish a prima facie violation of a specific regulation promulgated under Section

5(a)(2) of the Act, Complainant must prove by a preponderance of the evidence that: (1) the

standard applied 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.

Ormet Corporation, 14 BNA OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991).

   Section 5(a)(1) of the Act (a/k/a the “General Duty Clause”) states that "each employer

shall furnish to each of his employees employment and a place of employment which are free

from recognized hazards that are causing or are likely to cause death or serious physical harm to

his employees." 29 U.S.C. '654(a)(1). To establish a prima facie violation of Section 5(a)(1),

Complainant must prove by a preponderance of the evidence that: (1) a condition or activity in

the workplace presented a hazard to employees, (2) the employer or its industry recognized the

hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and

effective means existed to eliminate or materially reduce the hazard. Kokosing Constr. Co., 17

BNA OSHC 1869, 1995-96 CCH OSHD &31,207 (No. 92-2596, 1996). In addition, the

evidence must show that the employer knew, or with the exercise of reasonable diligence, could

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have known of the hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204, 2007

CCH OSHD &32,920 (No. 03-1344, 2007).

   A violation was serious if there was a substantial probability that death or serious

physical harm could have resulted from the condition. 29 U.S.C. 666(k). Complainant need not

show that there was a substantial probability that an accident would actually occur; she need only

show that if an accident had occurred, serious physical harm or death could have resulted.

Whiting Turner Contracting Co., 13 BNA OSHC 2155, 1989 CCH OSHD ¶28,501 (No. 87­

1238, 1989). If the possible injury addressed by the cited regulation is death or serious physical

harm, a violation of that regulation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237,

1240 (9th Cir. 1984); Dec-Tam Corp., 15 BNA OSHC 2072, 1993 CCH OSHD ¶29,942 (No. 88­

0523, 1993).

                                      Stipulations

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review

Commission by Section 10(c) of the Act. (Complaint and Answer).

2. Respondent is, and at all times hereinafter mentioned was, a corporation with an office

and place of business at 1909 South Avenue O, Chicago, Illinois 60053, and at all times

hereinafter mentioned, it was engaged in commercial construction and related activities.

(Complaint and Answer).

3. Respondent, at all times hereinafter mentioned, had a workplace at 8820 National

Avenue, Morton Grove, Illinois 60053, where it was engaged in commercial construction and

related activities. (Complaint and Answer).

4. Respondent, at all times hereinafter mentioned, was engaged in a business affecting

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   commerce in that Respondent was engaged in handling goods or materials which had been

moved in commerce. (Complaint and Answer).

5. Respondent, at all times hereinafter mentioned, was an employer employing employees

in said business at the aforesaid workplace. (Complaint and Answer).

6. One of Respondent’s employees, Juan Valdivia, was not tied off to an independent

lifeline. Rather, he was tied off to the support cable for the Spider scaffold. (Tr. 12).

                                              Discussion

    On April 20, 2010, OSHA Compliance Safety and Health Officer (“CSHO”) Larken

Akins was driving by Respondent’s jobsite in Morton Grove, Illinois when she observed

suspected fall hazard violations. (Tr. 25-26). CSHO Akins pulled her vehicle over, then

observed, photographed, and video-taped Respondent’s employees working on a water tower for

approximately 45 minutes. (Tr. 26). The employees were in the process of re-painting the tower

and were working approximately 80 feet above the ground. (Tr. 26, 65; Ex. C-11). CSHO Akins

then entered the jobsite and obtained permission to conduct an inspection from Senior Project

Manager Greg Bairaktaris. (Tr. 32-33).

    Two painters, Juan Valdivia and Heriberto Valdivia, were each suspended on the side of

the tower inside a Spider basket, a type of suspension scaffold enclosure. (Tr. 28; Ex. C-1, p. 1).

Before entering the jobsite, CSHO Akins observed one of Respondent’s painters, Juan Valdivia,

climb out of his Spider basket to access certain areas.1 (Tr. 28; Ex. C-1, pp. 2, 9, 10). During

these times, Mr. Valdivia was secondarily protected from falling through his use of a body

harness and lanyard, which was secured to the Spider basket’s suspension line. (Tr. 27-29, 35;

Ex. C-1, p. 2, C-11; Stipulation No. 1). CSHO Akins explained that being secured to the Spider

1
CSHO Akins vaguely asserted exposure of the second painter, Heriberto Valdivia, to the cited conditions.
However, during trial, there was no specific evidence that Heriberto Valdivia engaged in any of the conduct, or was
exposed to any of the conditions, which served as the basis for the three purported violations.

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basket suspension line, rather than an independent lifeline, violated the plain language of

1926.451(g)(3)(i) and exposed Mr. Valdivia to the possibility of being pulled down by the

scaffold itself if it failed. (Tr. 50). Securing himself to an independent anchorage point or

lifeline would have ensured that, had the Spider basket and its suspension line failed, Mr.

Valdivia would have still been protected. (Tr. 72).

   CSHO Akins further testified that by securing himself to the Spider basket suspension

line, Juan Valdivia also failed to comply with 29 C.F.R. §1926.502(d)(15) which requires that an

anchorage point or lifeline be capable of supporting 5,000 pounds. (Tr. 36, 53). CSHO Akins

later acknowledged that she did not actually know the capacity of the Spider basket suspension

line to which Juan Valdivia was secured. (Tr. 70). In contrast, Respondent’s Project Manager,

Greg Bairaktaris, provided undisputed testimony that the suspension lines for the Spider baskets

were rated to support 10,000 pounds. (Tr. 120).

   During the time when Juan Valdivia was observed outside of his Spider basket, he

periodically stood on the basket railing. (Tr. 34; Ex. C-1). CSHO Akins asserted that standing on

that railing constituted a General Duty Clause violation because there was a manufacturer’s label

on the Spider basket which stated: “Do Not Stand on Rails.” (Ex. C-6). She did not clearly

articulate how standing on the railing exposed employees, who were secondarily tied-off with

harnesses and lanyards at the time, to serious hazards. Complainant apparently concluded that

the mere existence of the manufacturer’s label alone, with no further explanation, was sufficient

to establish a General Duty Clause violation.

   Respondent’s Foreman, Carlos Gonzalez, was working both on top of the water tower

and on the ground at various points during OSHA’s off-site observations and on-site inspection.

(Tr. 31, 60-61, 152; Ex. C-1, p. 10). At one point, while Foreman Gonzalez was on the ground,

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CSHO Akins photographed him looking up and watching the two painters. (Tr. 31, 60; Ex. C-1,

p. 10). Foreman Gonzalez also told CSHO Akins that he knew that the Spider baskets had a

label which recommended not standing on basket railings, but explained that employees

occasionally needed to stand on them to perform their painting work. (Tr. 47; Ex. C-6). CSHO

Akins categorized all three of the proposed violations as serious because they all related to fall

hazards, which from a height of eighty feet, could have resulted in serious injuries or death. (Tr.

85).

                                    Citation 1 Item 1


   Complainant alleged a serious violation of Section 5(a)(1) of the Act in Citation 1, Item 1

as follows:

           The employer did not furnish employment and a place of employment

           which were free from recognized hazards that were causing or likely

           to cause death or serious physical harm to employees in that

           employees were exposed to fall hazards: (a) Employees were exposed

           to fall hazards while working from the railings of a single point

           suspension scaffold (Spider Basket: Model # ST-17R). Among others,

           one feasible method to correct the hazard is to (1) comply with the

           Spider Operator’s Manual for the Spider basket: Model # ST-17R and

           do not stand on the rails.



   The only evidence presented concerning either employer or industry recognition of a

hazard was CSHO Akins’ testimony explaining the presence of a “Do Not Stand on Rails” label,

and a comment from Foreman Gonzalez during the inspection which indicated that he had seen

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the label. No further explanation was offered concerning how standing on the rail itself

constituted a serious hazard, especially for employees who were secondarily tied-off with

harnesses and lanyards. The existence of the manufacturer’s label alone, without further

explanation, was insufficient to affirmatively prove employer and/or industry recognition of a

serious hazard, especially in light of the fact that employees were secondarily tied-off with

harnesses and lanyards.

     Even if Complainant had presented sufficient information to establish that standing on the

rail exposed employees to a serious fall hazard, abatement of the violative condition in Citation 1

Item 2a would have eliminated the hazard in Citation 1 Item 1. In other words, if Juan Valdivia

had been properly tied-off to an independent lifeline, and worst case scenario, the Spider scaffold

experienced a complete collapse as a result of his standing on its rail, Juan Valdivia would have

been protected from falling. 2 (Tr. 183). The Commission has long held that citation items are

duplicative if the same abatement action would correct the violative conditions alleged in both

citation items. E. Smalis Painting Co., Inc., 22 BNA OSHC 1553, (No. 94-1979, 2009);

Capform, Inc., 13 BNA OSHC 2219, 1989 CCH OSHD ¶28,503 (No. 84-556, 1989).

     Complainant failed to introduce sufficient evidence to establish employer or industry

recognition of the hazard, or that the act of standing on the Spider basket railing, in and of itself,

by employees who were secondarily tied-off with harnesses and lanyards, exposed employees to

a serious hazard. Since both are required elements for prosecution of a General Duty Clause

violation, Citation 1, Item 1 will be VACATED.

2
The court notes the language of 29 C.F.R. §1926.451(g)(1)(ii) which requires employees on adjustable suspension
scaffolds to be protected by personal fall arrest systems and guardrails. However, that standard was not cited.
Instead, OSHA elected to prosecute Respondent under Section 5(a)(1) for the purportedly serious hazard associated
specifically with standing on the Spider box railing, yet failed to prove by a preponderance of the evidence how that
action, in and of itself, constituted a serious hazard. Respondent’s expert witness discussed the double fall
protection requirement during his testimony in regard to a preemption argument. (Tr. 178, 184, 197). Since
Complainant failed to prove the required elements for the alleged Section 5(a)(1) violation, Respondent’s
preemption argument need not be addressed.

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Citation 1 Item 2a

   Complainant alleged a serious violation of the Act in Citation 1, Item 2a as follows:

          29 CFR 1926.451(g)(3)(i): Vertical lifelines were not fastened to a

          fixed safe point of anchorage independent of the scaffold and protected

          from sharp edges and abrasion. Safe points of anchorage include

          structural members of buildings, but do not include standpipes, vents,

          other piping systems, electrical conduit, outrigger beams, or

          counterweights: (a) Employee working from the single point

          suspension scaffold (Spider Basket: Model # ST-17R) was tied off to

          the scaffold’s suspension line. Employee did not have an independent

          lifeline.

   The cited standard provides:

          29 C.F.R. §1926.451(g)(3)(i): When vertical lifelines are used, they

          shall be fastened to a fixed safe point of anchorage, shall be

          independent of the scaffold, and shall be protected from sharp edges

          and abrasion. Safe points of anchorage include structural members of

          buildings, but do not include standpipes, vent, other piping systems,

          electrical conduit, outrigger beams, or counterweights.

   The cited regulation applies to suspension scaffolds, which the record clearly established

were being used by Respondent’s employees at this jobsite. (Tr. 25, 28, 158, 163-164, 201; Ex.

C-1); see also 29 C.F.R. §1926.450(b). The parties also stipulated that Juan Valdivia secured his

lanyard to the scaffold suspension line rather than an independent lifeline. Therefore, the court

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finds that the standard applies, was violated, and that Juan Valdivia was exposed to the violative

condition.

   As CSHO Akins explained, the purpose of the independent lifeline requirement is to

ensure that if the suspension scaffold were to fail, the employee would not be connected to the

scaffolding and dragged down with it. Undoubtedly, such a fall from eighty feet above the

ground would have resulted in serious injuries or death. The violation was properly

characterized as serious.

   Foreman Gonzalez testified that he did not know Juan Valdivia had secured his lanyard to

the Spider basket suspension line rather than the independent lifeline provided to him. (Tr. 158­

159). However, the court rejects that assertion, and at a minimum finds that with the exercise of

reasonable diligence Foreman Gonzalez could have known because: (1) the condition was open,

obvious, and in plain view to CSHO Akins, who was much further away from Juan Valdivia than

Foreman Gonzalez while taking investigative photographs and video, (2) Foreman Gonzalez was

photographed standing on the ground, looking up, and watching Juan Valdivia just before CSHO

Akins entered the jobsite, and (3) Juan Valdivia’s independent lifeline was still coiled up in the

Spider basket at the time, and Foreman Gonzalez should have at least noticed that his

independent lifeline had not even been set up for use. (Tr. 127, 163-166). Accordingly,

Complainant established constructive knowledge of the violative condition. As all of the

elements required to prove a prima facie violation of the Act were established, Citation 1, Item

2a will be AFFIRMED.

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Citation 1 Item 2b

   Complainant alleged a serious violation of the Act in Citation 1, Item 2b as follows:

          29 CFR 1926.502(d)(15): Anchorages used for attachment of personal

          fall arrest equipment were not independent of any anchorage being

          used to support or suspend platforms and capable of supporting at

          least 5,000 pounds per employee attached, or were not designed,

          installed and used: (a) Employee working from the railings of the

          water tank was tied off to the single point scaffold’s suspension line.

          Employee did not have an independent lifeline.

   The cited standard provides:

          29 C.F.R. §1926.502(d)(15): Anchorages used for attachment of

          personal fall arrest equipment shall be independent of any anchorage

          being used to support or suspend platforms and capable of supporting

          at least 5,000 pounds (22.2kN) per employee attached, or shall be

          designed, installed, and used as follows: [two factor alternative to

          5,000 pound requirement].

   Respondent presented testimony that the suspension line for the Spider basket, to which

Juan Valdivia was tied-off, was capable of supporting 10,000 pounds. Complainant failed to

present evidence to the contrary. Therefore, Complainant failed to meet its burden of proving

that the terms of the cited regulation were violated. Accordingly, Citation 1, Item 2b will be

VACATED.

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Affirmative Defenses

   Respondent contended that Citation 1, Item 2a should be vacated because the violation

resulted from unpreventable employee misconduct. In order to establish this affirmative defense,

an employer is required to prove that it: (1) established work rules designed to prevent the

violation, (2) adequately communicated those rules to its employees, (3) took steps to discover

violations of the rules, and (4) effectively enforced the rules when violations were discovered.

American Sterilizer Co., 18 BNA OSHC 1082, 1087, 1995-97 CCH OSHD ¶31,451 (No. 91­

2494, 1997).

   Respondent had a written fall protection policy, on which Juan Valdivia had been trained,

and conducted periodic safety meetings and re-training sessions. (Tr. 96-97, 100-102, 111-113,

154; Ex. R-2, R-3, R-4, R-9, R-10). Respondent’s policy was to tie-off at all times when

working more than six feet above the ground. (Tr. 94; Ex. R-4, R-9). Respondent’s Project

Manager, Greg Bairaktaris, visited Respondent’s jobsites 1-2 times each week and typically

spoke to job foremen by telephone 2-3 times each day. (Tr. 92). In addition, every Spider basket

on Respondent’s jobsite, including Juan Valdivia’s, was provided with an independent lifeline

for employees to use. (Tr. 126-127). Respondent also disciplined Juan Valdivia after OSHA’s

inspection, through a written warning for failing to tie-off properly. (Tr. 126; Ex. R-12).

   While Respondent had implemented a written fall protection program and conducted

frequent training, the fatal flaw in Respondent’s assertion of the employee misconduct defense

with regard to Citation 1, Item 2a is that Foreman Gonzalez was at the jobsite, directly observing

Juan Valdivia, whose attachment to the Spider basket suspension line rather than an independent

lifeline, was open, obvious, and in plain view. Jones Co., 11 BNA OSHC 1529, 1983-84 CCH

OSHD ¶26,516 (No. 77-3676, 1983). Despite these facts, the condition was not corrected until

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CSHO Akins entered the jobsite. Therefore, the court concludes that compliance with

Respondent’s fall protection policies was not adequately monitored nor effectively enforced.

Respondent’s assertion of unpreventable employee misconduct with regard to Citation 1, Item 2a

is rejected.

                                         Penalty

    In calculating the appropriate penalty for affirmed violations, Section 17(j) of the Act

requires the Commission to give Adue consideration@ to four criteria: (1) the size of the

employer's business, (2) the gravity of the violation, (3) the good faith of the employer, and (4)

the employer's prior history of violations. 29 U.S.C. '666(j). Gravity is the primary

consideration and is determined by the number of employees exposed, the duration of the

exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones

Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD &29,964 (No. 87-2059, 1993). It is

well established that the Commission and its judges conduct de novo penalty determinations and

have full discretion to assess penalties based on the facts of each case and the applicable

statutory criteria. Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975); Valdak Corp.,

17 BNA OSHC 1135 (No. 93-0239, 1995).

    For penalty calculation purposes, CSHO Akins characterized Citation 1, Item 2a with a

high probability of a serious accident actually occurring, and then reduced the proposed grouped

penalty for Items 2a and 2b by forty percent based on Respondent’s status as a small employer.

(Tr. 53). CSHO Akins conceded that in assessing the probability of an actual accident, she

would have categorized Citation 1 Item 2a (being secured to the scaffold suspension line rather

than an independent lifeline) with the same high probability if Juan Valdivia had completely

failed to tie-off at all. (Tr. 70-71). The court rejects CSHO Akins conclusion that the probability

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of an actual accident occurring for an employee tied-off to the suspension line, as compared to an

employee not tied-off at all, were the same.

    Respondent is a relatively small employer, with 50-60 employees during its busiest time

of the year. (Tr. 90). One employee was exposed to the violative condition described in Citation

1, Item 2a for approximately 45 minutes. The likelihood of an actual injury was low.

Respondent promptly abated the condition by requiring Juan Valdivia to secure his lanyard to an

independent lifeline. Considering the totality of the circumstances, the court will reduce the

penalty proposed for Citation 1, Item 2a to $2,000.00.

                                           ORDER

    Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1 is hereby VACATED;

2. Citation 1, Item 2a is hereby AFFIRMED and a penalty of $2,000.00 is ASSESSED; and

3. Citation 1, Item 2b is hereby VACATED.

                                          ____/s/________________________________
                                          PATRICK B. AUGUSTINE
                                          Judge, OSHRC
   

   Date: October 18, 2011
   Denver, Colorado

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