Byrd Telcom, Inc.
Gin-pole rigging hazard citation affirmed
Apply this to your situation
This order from 2015 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Byrd Telcom crew was raising a 40-foot, 1,800-pound gin pole on a cellular tower when a carabiner used in the rigging failed. The falling pole and rigging fatally struck two workers. The judge found that industry practice required properly secured rigging with chokers and a shackle, and that the gin pole sections needed permanent markings tied to a specific load chart and weight. Byrd Telcom had no adequate gin-pole work rules, assigned inexperienced personnel, provided insufficient supervision, and did not discipline the worker who used the carabiner. The serious general duty clause violation was affirmed with a $7,000 penalty.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1)
- Outcome: Both remaining general duty clause instances affirmed as serious; $7,000 penalty assessed.
- Key point: Tower contractors must provide competent rigging supervision, proper load information, and equipment rated for raising a gin pole.
Full text (OSHRC public release)
Some personal identifiers have been redacted for privacy purposes
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,
Complainant,
v. OSHRC DOCKET No. 13-1759
BYRD TELCOM, INC.,
Respondent.
DECISION AND ORDER
COUNSEL: M. Patricia Smith, Solicitor of Labor, Stanley E. Keen, Regional Solicitor, Angela
A. Donaldson, Counsel, Lydia J. Chastain Attorney, Melanie L. Paul, Trial Attorney. for
Complainant.
Kevin B. Miller, Esq., Mark A. Cevallos, Esq., Matthew J. Olivarez, Law Offices of Miller &
Bicklein, for Respondent.
JUDGE: John B. Gatto.
I. INTRODUCTION
Byrd Telcom, Inc. (Byrd Telcom) is a business that provides in-house tower climbing
services.1 On May 28, 2013, two of Byrd Telcom’s workers were killed at its worksite, a 300-
foot Verizon Wireless cellular tower, in Georgetown, Mississippi. As a result of the two deaths,
a fatality investigation was conducted at the worksite by John Sauls, Jr., a Compliance Safety
and Health Officer with the United States Department of Labor’s Occupational Safety and
1
The in-house tower climbing services include the installation and maintenance of equipment such as antennas and
booms, lines, sweep testing, and gin poles. (Tr. 18, 19, 24, 67, 68, 377, 440; see also Ex. J-6, Ex. J-9, p. 1.)
Health Administration (OSHA), which led to the issuance on October 21, 2013, of a citation and
proposed penalty to Byrd Telcom by OSHA’s Jackson, Mississippi, Area Director.2
The citation was issued under the Occupational Safety and Health Act of 1970 (Act), 29
U.S.C. §§ 651–678 and alleged in two Items serious3 violations of section 5(a)(1) of the Act,
commonly known as “the “general duty” clause,” 29 U.S.C. § 654(a)(1), and proposed penalties
totaling $14,000.00. (Compl., Ex. A, pp. 1-2.) After Byrd Telcom timely appealed the citation,
Thomas E. Perez, the Secretary of Labor, filed a complaint in the Commission, which amended
Instances (b) and (c) of Item 2 and added Instance (d) to Item 2. Prior to trial, the Court granted
the Secretary’s unopposed motions to withdraw Item 1 and Instances (b) and (d) of Item 2. Still
pending before the Court are Instances (a) and (c) of Item 2 with a proposed penalty of
$7,000.00.
As amended, the Secretary asserts Byrd Telcom violated the general duty clause in
Instance (a) when employees “were exposed to struck-by hazards while raising a gin pole4 and
were not protected by a properly secured top (hook) block used in raising a gin pole,” and in
Instance (c) when “the gin pole was not permanently marked with an identification number that
references a specific load chart and gin pole weight, thereby exposing employees on and near the
tower to struck-by hazards while raising the gin pole.” (Compl. ¶ III.) Byrd Telcom denies the
2
The Secretary of Labor has assigned responsibility to OSHA for enforcement and has delegated his authority under
the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA, and has authorized the
Assistant Secretary to redelegate his authority. See 65 FR 50017, 50018 (2000). The Assistant Secretary has
promulgated regulations authorizing OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R.
§§ 1903.14(a) and 1903.15(a).
3
Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a
serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§666(a), (b), (c). A serious
violation is defined in the statute; the other two degrees are not. Id. §666(k) (see Part III of this decision for the
definition of a serious violation classification).
4
A gin pole is a lifting device used in tower construction and service to raise tower sections, antennas and other
items from the ground. (Ex. J-3, p. 1.)
2
Secretary’s allegations and argues the Secretary “failed to establish the creation and/or existence
of an employer/employee relationship” and further, that “it had no control over the work-site and
no control over the mechanism of injury sufficient to make [it] and employer under the Act.”
(Answer ¶ XIII.)
The Commission has jurisdiction of this action under section 10(c) of the Act, 29 U.S.C.
§ 659(c). (Compl. ¶ I; Answer ¶ I.) Pursuant to Rule 52(a) of the Federal Rules of Civil
Procedure, after hearing and carefully considering all the evidence and the arguments of counsel,
the Court issues this Decision and Order as its findings of fact and conclusions of law. If any
finding is in truth a conclusion of law, or if any conclusion stated is in truth a finding of fact, it
shall be deemed so. For the reasons indicated infra, the Court AFFIRMS amended Instances (a)
and (c) of Item 2 and ASSESSES a civil penalty of $7,000.00.
II. BACKGROUND
Andrew Systems, Inc. (Andrew) was the prime contractor at the Georgetown, Mississippi
worksite and Byrd Telcom was subcontracted by Andrew to do an upgrade. (Tr. 408; Ex. C-7, p.
7.) Sonny Byrd, the company’s current President, was previously a partner in Byrd Telcom’s
predecessor, Circle B Electric & Tower (Circle B), and at the time of the accident, Byrd Telcom
was using Circle B’s safety manual. (Tr., 19, 24, 42, 377, 440; Ex. C-20, p. 2; see also Ex. J-6,
Ex. J-9.) At the time of the accident, Sonny Byrd was the company’s Vice-President and his
wife, Ravan Byrd, was the company’s President. (Ex. C-19, p. 2.)
The industry practice for safe and proper rigging of gin poles is wrapping two slings or
chokers, one around each leg of the tower, and connecting them in the center with a shackle to
create a “V” formation. (Tr. 205, 240, 309-10, 312, 653, 762-63.) However, the week prior to
3
the accident, rather than using chokers and a shackle, John Davidson, assisted by [redacted],
attached the rigging of the “jump line”5 on the tower by placing a carabiner6 into a hole in one of
the top plates.7 (Tr. 544-45.) Unfortunately, they were supervised that day by Claudia
Trammell, Byrd Telcom’s foreman, who had no experience rigging gin poles, or climbing
towers, and this was the first time John Davidson personally set up rigging for a gin pole at the
top of a tower. (Tr. 533-34, 543, 546-447; Ex. C-8C, pp. 10, 13.)
Although John Davidson had been on jobs before where gin poles were rigged with
shackles and chokers, he did not use a shackle and choker for this job because he “couldn’t find
one” and they “had none on the truck.” (Tr. 547.) There were all different types and sizes of
carabiners and he picked the biggest carabiner and “figured it would be the strongest.” (Tr. 545.)
John Davidson’s use of the carabiner was inconsistent with the industry practice and its design
and safety rating. (Tr. 616-17.) The carabiner used in the top plate was PenSafe Model # C775.
(Tr. 637-38; Ex. J-3, p. 2; J-10, p. 6.) Although PenSafe certifies its carabiners for compliance
with ANSI, International, and Canadian standards for fall protection, they are not certified for
hoisting materials. (Tr. 471; Ex. J-10.)On May 28, 2013, the day of the accident, John Davidson,
[redacted] and [redacted], Wilton Grimes, Allen “BJ” Martin, and Michael Shane Callender were
5
There are two types of “lines” used in gin pole related activities. A “jump line” is used to raise and lower the gin
pole to the top plate at the top of the cell tower. A “load line” is used after the gin pole is secured at the top of the
tower to raise and lower the equipment being used, installed, or removed. (Tr. 414, 664; Byrd Telcom’s Post-Trial
Br., p. 7.)
6
A carabiner is typically used in fall protection equipment. (Tr. 143.) PenSafe, Inc., the manufacturer of the
carabiner involved in the accident describes a carabiner as a “connector with a trapezoidal or oval body with a self-
closing self-locking gate.” (Ex. J-10, p. 4.)
7
The top plates or “top splices” are the metal squares or “leg flanges” at the top of the tower that “are used to splice
two sections of the tower together when they’re constructed. A tower section is placed on top and then bolts are
used to secure the plates together.” (Tr. 427-28; see also Ex. J-1B.) John Davidson referred to the inserting of the
carabiner through a hole in a top plate as having “hung the block and the carabiner.” (Tr. 546; see also Ex. J-1A.)
4
on the tower during the hoisting or raising of the gin pole up the face of the tower, commonly
known as “jumping the gin pole.” (Tr. 53-54, 222-23, 232-33, 549, 554; see also C-8b, p. 36; Ex.
J-14, p. 8.) [redacted] and [redacted] were struck and killed by the 40-foot, 1800-pound steel gin
pole and/or its rigging when the carabiner broke.8 (Tr. 405, 644-45; see also Ex. J-3, p. 1.). (Tr.
405.) The impact of the falling equipment was so great that it ripped the D rings out of the fall
protection harnesses worn by [redacted] and [redacted] and [redacted] was decapitated. (Tr. 418,
583; Ex. J-11F.)
Trammell had been the worksite foreman and since she had quit the weekend prior to the
accident, John Davidson told OSHA investigator Sauls they really didn’t know who was in
charge the day of the accident but that he was not in charge, and credibly testified he thought the
foreman that day was either his brother Randy or Callender since they had the most experience.
(Tr. 456, 558-59.) Randy Davidson echoed John Davidson's sentiments and told Sauls
“basically, everybody knew what to do and they went about their job and did it.” (Tr. 457.)
Randy Davidson, testified he was Byrd Telcom’s Construction Manager and admitted he
was acting in a supervisory role the day of the accident, and Sonny Byrd sent him out to the
worksite that morning to “check on them and see if they’re working,” and in that role, he
“walked around and talked to the guys, found out what their game plan was, whether they had all
their JSAs filled out and all that, which they did.” (Tr. 312-13, 314, 315.) The Construction
Manager, according to Randy Davidson, “goes around, looks at all the jobs, makes sure the job
progress is going on schedule, and if there's any safety issues, the foreman will tell the CM and
get it taken care of.” (Tr. 289.)
8
The applied and dynamic force exceeded the material strength of the steel which is estimated to be between 9846
and 13,192 pounds. (Ex. J-3, p. 6.)
5
With respect to hoisting gin poles, Sauls testified Randy Davidson had the most
experience on the worksite on May 28, 2013, which was undisputed. (Tr. 458.) On May 20,
2013, Randy Davidson also signed the “Equipment Basics Checklist” as the Project Manager,
which indicated the equipment inspected that day. (Ex. J-18.) Since Randy Davidson was the
worksite Construction Manager/Project Manager and the worker with the most experience
hoisting gin poles, and Callender had been the foreman before and after the accident, and since
Trammell, the worksite foreman, had quite the weekend prior to the accident, the Court finds the
preponderance of evidence shows either Randy Davison or Callender was in charge of the
worksite the day of the accident, not John Davidson.
III. ANALYSIS
In the Fifth Circuit, the jurisdiction in which this case arises,9 the circuit court noted,
“[a]s has often been said, OSHA does not impose strict liability on an employer but rather
focuses liability where the harm can in fact be prevented.” Central of Ga. R.R. Co. v. OSHRC,
576 F.2d 620, 623 (5th Cir.1978). “It is well-settled that the Secretary has essentially two
weapons in [his] arsenal of enforcement. First, the Secretary may issue a citation for violations of
specific standards promulgated (through rulemaking) by the Secretary. Alternatively, where the
Secretary has not promulgated standards, he may rely on the General Duty Clause as a ‘catchall
provision.’” Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997) (citation omitted).
9
The worksite is in Georgetown, Mississippi, and Byrd Telcom’s principle place of business is in Baton Rouge,
Louisiana, both of which are in the Fifth Circuit. Therefore, either party may appeal to the Fifth Circuit Court of
Appeals, and in addition, Byrd Telcom may also appeal to the District of Columbia Circuit. See 29 U.S.C. § 660(a)
& (b). The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular
circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may
differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).
Here, since it is highly probable that any appeal will be to the Fifth Circuit, the Court applies the precedent of that
circuit.
6
The “general duty” clause provides that each employer “shall furnish to each of his
employees employment and a place of employment free from recognized hazards that are
causing or likely to cause death or serious injury to the employees.” Whirlpool Corp. v.
Marshall, 445 U.S. 1, 13 (1980) (citing 29 U.S.C. § 654(a)(1)). To establish a violation of the
general duty clause in the Fifth Circuit, “the Secretary must prove that (1) the employer failed to
render its work place free of a hazard; (2) the hazard was “recognized”; and (3) the hazard
caused or was likely to cause death or serious physical harm.” Georgia Elec. Co. v. Marshall,
595 F.2d 309, 320-21 (5th Cir. 1979. In addition, “the hazard must be preventable.” Arcadian,
110 F.3d at 1197 n. 2 (citation omitted). A “serious violation” is one that carries “a substantial
probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). “The
gravamen of a serious violation is the presence of a ‘substantial probability’ that a particular
violation could result in death or serious physical harm.” Chao v. OSHRC, 401 F.3d 355, 367
(5th Cir. 2005) (citing Georgia Electric, 595 F.2d at 318). Here, the alleged violations were
serious since they resulted in the death of two workers.
A. Covered Employer
As a condition precedent to citing Byrd Telcom, the Secretary must show the company
was an employer within the meaning of the Act. See All Star Realty Co., Inc., 24 BNA OSHC
1356, 1358 (No. 12-1597, 2014) (“[T]he Secretary has the burden of proving that a cited
company is the employer of the affected workers at the site”) (citing Allstate Painting &
Contracting Co., 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) (consolidated)). As the
Supreme Court noted in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (U.S. 1992),
courts have “often been asked to construe the meaning of “employee” where the statute
7
containing the term does not helpfully define it.” Here, the Act defines employer as “a person
engaged in a business affecting commerce who has employees.” 29 U.S.C. § 652(5). “Employee”
is defined as “an employee of an employer who is employed in a business of his employer which
affects commerce.” 29 U.S.C. § 652(6). As the Commission noted in Don Davis, 19 BNA
OSHC 1477, 1480 (No. 96-1378, 2001), this definition is “unhelpfully circular.”
Byrd Telcom argues the Secretary “failed to establish the creation and/or existence of an
employer/employee relationship” and that it “had no control over the work-site and no control
over the mechanism of injury sufficient to make [it an] employer under the Act.” In determining
whether the Secretary has satisfied his burden of showing Byrd Telcom was an employer within
the meaning of the Act, the Commission applies the common law agency doctrine enunciated in
Darden. See All Star Realty, 24 BNA OSHC at 1358; Allstate Painting, 21 BNA OSHC at 1035
(citation omitted). See also Timothy Victory, 18 BNA OSHC 1023, 1027 (No. 93-3359, 1997)
(the term “employee” under the Act should be interpreted consistent with common law
principles).
As the Fifth Circuit noted, the hiring party's “right to control the manner and means” of
the work performed is important to determining whether there is employee status. United States
v. Robinson, 505 F. App'x 385, 387 (5th Cir. 2013) (citing Darden, 503 U.S. at 323). Many
factors are relevant to this inquiry, including the work location, who set the work hours, who
provided the tools being used, the duration of the relationship between the parties, and the
method of payment. Darden, 503 U.S. at 323-24. For the reasons infra, the Court finds Byrd
Telcom was a covered employer under the Act at the time of the accident.
8
Darden Factors
Byrd Telcom argues “that under the Darden factors respondent is not an “employer”
subject to this standard.” (Pretrial Order, Attach. D, ¶ 4.) The Secretary argues, “[e]mployee
witnesses’ sworn testimony to OSHA and at trial demonstrates [Byrd Telcom’s] control over
them and supports a finding of an employer relationship under the Darden factors.” (Sec’y’s
Post-Trial, Br. p. 18.) The Court agrees with the Secretary. As the Commission has noted, under
the Darden analysis, “the primary focus is whether the putative employer controls the workers.”
Allstate Painting, 21 BNA OSHC at 1035; All Star Realty, 24 BNA OSHC at 1358.
Work Skills
With regard to the skill required for tower work, the only special training required was
fall protection and tower rescue. (Tr. 24-25). The work itself was essentially manual labor and
the workers were not required to have a high school diploma or its equivalent. (Tr. 285, 459,
522). As indicated supra, Sonny Byrd admitted to OSHA during the fatality investigation that
the company had 6 employees working at the worksite on the day of the accident and had a total
of 12 employees, which was corroborated by Byrd Telcom’s disclosure in the contract with
Andrew on April 3, 2013, that it had no subcontractors. Therefore, Byrd Telcom has admitted
through these documents that its workers were employees rather than subcontractors.
Not dissuaded, Byrd Telcom asserts at the time of hire each worker was provided a safety
and health manual and “the language of the manual indicates that if an individual does not follow
the safety policies and procedures, that it can result in the termination of the relationship between
Byrd Telcom and the individual.” (Byrd Telcom’s Post-Trial Br., p. 8) (emphasis added). (Id.)
Byrd Telcom misrepresents the language in the safety manual, which actually states if a worker
9
does not follow the safety policies and procedures, the worker acknowledges “it can result in my
employment termination.” (Ex. J- 4, p. 164.)
Equipment
Although Sonny Byrd testified the carabiners on the truck were not owned and supplied
by Byrd Telcom and belonged to the workers (“they got their carabiners and put them on with
them” (Tr. 135)), this assertion is contrary to Sonny Byrd’s own admission that the company
provided the fall protection equipment and his admission that workers would come to the
warehouse to pick up the equipment that they need for a particular job, that “we furnish all
materials to do the job with.”10 (Tr. 46, 74-75.) It is also contrary to Callender’s testimony that
some of the company trucks had carabiners, which belonged to Byrd Telcom. (Tr. 230.)
Although some workers brought their own carabiners to worksites, they had them on their own
personal belts. (Tr. 231.)
At trial Sonny Byrd testified two months before the accident, “we had a directive from
Andrew to quit using carabiners. And when we got that directive to quit using carabiners, I went
out there and pulled them all off the trucks. And from that day on, we never used them again.”
(Tr. 134-135.) Similarly, Randy Davidson testified about the directive from Andrew. As
indicated supra, the Court does not find Sonny Byrd to be a credible witness. Further, Randy
Davidson was representing Byrd Telcom at the worksite on May 31, 2013, while evidence was
being retrieved from the tower. (Tr. 466.) As the company’s owner and its worksite supervisor,
Sonny Byrd and Randy Davidson, both had self-serving interests to lay blame for the accident
elsewhere, mainly on John Davidson. Nonetheless, assuming arguendo their testimony was
10
Randy Davidson, John Davidson and Callender all testified that Byrd Telcom provided the gin pole, rooster head,
bolts, chokers, shackles, trailers, wire rope, carabiners, fall protection equipment, JSA forms, and a winch truck. (Tr.
214-15, 302-03, 537-38; Ex. C-8A, p. 16; Ex. C-8B, pp. 7, 8, 25; Ex. C-8C, p. 12; see also Ex. J-30.)
10
credible, John Davidson testified that no one gave him that advice about the Andrew directive.
(Tr. 551.) The Court closely observed John Davidson during his testimony and he was candid
and responsive to the questions posed to him. Unlike Sonny Byrd and Randy Davidson, John
Davidson displayed no evasiveness or deflective tactics. He also gave no indication he harbored
any animus towards the company. The Court finds him to be a credible witness and gives
considerable weight to his testimony. Therefore, the Court finds even if Byrd Telcom’s assertion
is plausible, the company nonetheless did not instruct John Davidson to stop using carabineers
on Andrew jobsites.
Work Location
The Darden factor regarding work location also favors an employer-employee
relationship. Sonny Byrd arranged for Callender to be picked up and taken to the work site and
the workers rode in the company’s trucks to get to jobs. (Tr. 148, 215, 221, 304; see also Ex. C-
8A, p. 17; Ex. C-8B, p. 12.) Byrd Telcom also paid for the workers’ expenses associated with an
out-of-town job, such as gas and lodging. (Tr. 117, 216, 304, 539; see also Ex. C-8A, pp. 33-34;
Ex. C-8B, pp. 13-14; Ex. C-8C, p. 29.) Further, Sonny Byrd assigned the individual workers to
particular crews to work on particular jobs. (Tr. 459, 533; see also Ex. C-8B, p. 11.)
Duration of Relationship
In addition, the duration of the relationship between the parties favors an employer-
employee relationship. Both Davidsons and Callender testified that they worked for Byrd
Telcom for several years, albeit off and on, including when the company was called Circle B.
(Tr. 144, 150, 204, 286-87, 528; see also Ex. C-8A, p. 16; Ex. C-8B, p. 18; Ex. C-8C, pp. 6-7.)
Although workers jumped around from company to company, that is a common practice in the
11
telecommunications industry. (Tr. 528.) Employees did not, however, work for any other
employers at the same time that they were working for Byrd Telcom since it was a full-time job
and employees received continuous job assignments. (Tr. 257, 293, 535, 351-52, 454-55, 533;
see also Ex. C-8C, pp. 7, 40.)
Method of Pay and Work Hours
Byrd Telcom also paid employees a day rate and paid them weekly. (Tr. 34-35, 72, 211,
213, 295, 453, 532; see also Ex. C-8A, p. 32; Ex. C-8B, p. 9.) Employees had no ability to
negotiate their pay rates and Sonny Byrd set the pay rates based on a scale relative to experience.
(Tr. 34, 212, 532.) Although individual workers called in or texted the employees’ daily start
and stop times to Sonny Byrd or Ravan Byrd, Byrd Telcom also required the foreman to call in
or texted the employees’ daily start and stop times to Sonny Byrd or Ravan Byrd, or to the
company’s personnel office. (Tr. 68, 210, 296, 551; Ex. C-8A, p. 33.) The employees could not
hire or fire other workers; Sonny Byrd was the sole decision-maker on those issues. (Tr. 212,
298, 534.) Thus, the workers did not have discretion over when they could start and finish jobs.
The only other variations to the workers’ work schedules were actually due to changing weather
conditions. (Tr. 68, 211, 295-96, 535). It is undisputed that the company paid the employees a
day rate; employees were not paid by the job. (Tr. 34-35, 211, 295, 532; Ex. C-8A, p. 32; Ex. C-
8B, p. 9.) In addition, the company paid the workers on a weekly basis. (Tr. at 34, 72, 213,
453.)
In Allstate Painting, the Commission did not find that an employer-employee relationship
existed since “Allstate did not control the hiring, firing or disciplining of the workers at the site;
did not supervise their work; and did not supply them with equipment or safety gear.” Allstate
12
Painting, 21 BNA OSHC at 1036. Likewise, in All Star Realty, the Commission concluded that
an employer-employee relationship did not exist since the record contained “no evidence that the
company prescribed work hours, work methods, or any other aspect of the activities the [OSHA
compliance officer] observed.” All Star Realty, 24 BNA OSHC at 1358. “Regarding the
provision of tools, there [was] no evidence that the ladder or hand tool the brothers used on the
day of the inspection belonged to All Star—in fact, the [compliance officer] testified that she saw
no demolition equipment at the site, which is consistent with the company's contention that it had
not yet begun its work.” All Star Realty, 24 BNA OSHC at 1359.
Here, unlike in Allstate Painting, Byrd Telcom did control the hiring, firing and
disciplining of the workers at the site; did supervise their work; and did supply them with
equipment or safety gear. And unlike All Star Realty, Byrd Telcom did prescribe work hours;
work methods; and the provision of tools. Further, as indicated supra, there was a long-term
employment relationship between Byrd Telcom and these workers and Byrd Telcom retained
control over the manner and means by which they performed their assignments. Vergona Crane
Co., 15 BNA OSHC 1782, 1790 (No. 88–1745, 1992).
Other Evidence Supporting Employer-Employee Relationship
Sonny Byrd admitted to OSHA in connection with the fatality investigation on May 30,
2013, that the company had 6 employees working at the worksite and had a total of 12
employees. (Ex. C-5.) Byrd Telcom is incorporated in the State of Nevada and has its principle
place of business in Baton Rouge, Louisiana. (Tr. 30-32, 74; Ex. C-19, C-20.) On May 30, 2013,
the company filed an Amended List of Officers and Directors with the Nevada Secretary of State,
which changed the name of the company’s President, Secretary, Treasurer and Director to “L.
13
Sonny Byrd.” (Ex. C-20, p. 2.) Sonny Byrd’s statements made to OSHA during the investigation
after the accident were made in his capacity as the company’s President, Secretary, Treasurer and
Director and therefore were party admissions under Rule 801(d)(2). Significantly, at trial, when
asked if the employee information he provided to OSHA on May 30, 2013 was accurate, Sonny
Byrd testified, “It was probably accurate at the time.” (Tr. 150.) The company’s Job Safety
Analysis form completed the morning of the accident also indicated all crew workers listed
worked for Byrd Telcom and importantly, no subcontractors or independent contractors were
listed. (Tr. 136-37; Ex. J-13.) Sonny Byrd’s admissions are consistent with similar admissions
made by Ravan Byrd on April 3, 2013, in her capacity as Byrd Telcom’s President in the
company’s “Contractor Profile,” that the company had 15 employees and did not have any
subcontractors. (Ex. J-9, pp. 1, 2.) Ravan Byrd’s statements, made in in her capacity as Byrd
Telcom’s President, that the company had 15 employees and no subcontractors, were also party
admission under Rule 801(d)(2).
The Court observed the demeanor of both Sonny Byrd and Ravan Byrd and assessed their
credibility, considering their motivation, and whether their testimony was plausible, consistent
and corroborated. At trial, neither reflected a forthright and truthful demeanor. Rather than
having been motivated by a desire to be truthful, their testimony appeared motivated by their
deliberate and calculated attempt to support Byrd Telcom’s defensive posture— that their
workers were not employees but were independent contractors. Much of their testimony was
self-serving and clearly contradicted by both the documentary evidence of record and by the
credible testimony of other witnesses. The Court finds much of their testimony was untruthful
and an intentional attempt to mislead the Court.
14
Both Sonny Byrd and Ravan Byrd asserted at trial that she had never been an officer of
the company and that he was the company’s President at the time of the accident. (Tr. 20, 21-22,
370-73.) However, Byrd Telcom’s “Initial List of Officers and Directors” filed with the Nevada
Secretary of State at the time of incorporation on November 14, 2012, was signed by Ravan Byrd
under penalty of perjury, where she certified that she was the company’s President, Secretary,
Treasurer and Director. (Ex. C-19, p. 2.) Ravan Byrd also listed Sonny Byrd as the company’s
“Vice-President” on the April 3, 2013, “Contractor Profile” and “Certificate of Corporate
Incumbency and Authority.” (Ex. J-9, pp. 1, 2, 5.) As indicated supra, it was not until May 30,
2013, two days after the accident, that Byrd Telcom filed an “Amended List of Officers and
Directors” with the Nevada Secretary of State, which changed the name of the company’s
President, Secretary, Treasurer and Director to “L. Sonny Byrd.” (Ex. C-20, p. 2.) Significantly,
as indicated supra, less than two months prior to the accident, Ravan Byrd also signed a contract
with Andrew on April 3, 2013, as the company’s President. (Ex. J-8, p. 5; Ex. J-9, pp. 1-5.) She
also signed a “Request for Taxpayer Identification Number and Certification” (Substitute Form
W-9), in her capacity as Byrd Telcom’s President, which certified under penalty of perjury the
company was more than 50% owned, controlled and actively managed by a woman, which she
admitted at trial referred to her. (Tr. 376; Ex. J-9, p. 4.)
Further, although Ravan Byrd asserted at trial she had never worked for the company, she
admitted she kept the books for Byrd Telcom, and Sonny Byrd referred to her as the company’s
“bookkeeper.” (Tr. 22, 371.) Ravan Byrd signed many of the employment records on behalf of
the company and Byrd Telcom required the foreman to text the employees’ daily start and stop
times to either Sonny Byrd or Ravan Byrd. (Tr. 68, 210, 296, 551; Ex. C-8A, p. 33; see also Ex.
15
J-19 through Ex. J-26.) Clearly, at the time of the accident, Ravan Byrd was the company’s
President, Secretary, Treasurer and Director, and contrary to her testimony, she was actively
involved in the daily operations and management of Byrd Telcom.
At trial Sonny Byrd attempted to retreat from those party admissions by asserting the
workers were independent contractors, not subcontractors, which is why, according to him, the
company did not list any subcontractors in its “Contractor Profile.” (Tr. 52.) The Court does not
find his testimony credible since he also testified “to me, a subcontractor and an independent
contractor would be used [] the same,” (Tr. 50), which is corroborated by the company’s own use
of both a “Joint Agreement to Affirm Independent Relationship for Certain Building and
Construction Workers” form and a “Subcontractor Original Application” form. (See e.g. Ex. J-
19, pp. 2, 5.) More importantly, Byrd Telcom admitted in its post-trial brief it “hires
subcontractors to perform the work on the jobs for which it is awarded contracts.” (Byrd
Telcom’s Post-Trial Br., p. 3.)
Further, these party admissions were not consistent with a lawsuit Byrd Telcom
subsequently filed after the accident against its insurance carriers for cancelling its policies,
including its worker’s compensation coverage, where the company is seeking a judgment that the
insurance companies owe a duty to indemnify Byrd Telcom up to the limits of the applicable
policies in any subsequent lawsuits that may be filed as a result of the deaths of [redacted] and
[redacted].11 (Tr. 57-58.) Under the Texas Workers' Compensation Act, Tex. Labor Code Ann.
§§ 401.001, 401.012(b)(2) (West), the term “employee” expressly excludes “independent
contractor or the employee of an independent contractor.”
11
In that lawsuit, the insurance carriers have raised a material misrepresentation defense. (Tr. 60.)
16
Further, while it is true under Texas law a general contractor and a subcontractor may
enter into a written agreement under which the general contractor provides workers'
compensation insurance coverage to the subcontractor and is treated as the employer of the
subcontractor for the purposes of the Texas Workers' Compensation Act, see Tex. Labor Code
Ann. § 406.123(a) & (b), Byrd Telcom offered no evidence that it had entered into such written
agreements with its workers. To the contrary, Byrd Telcom’s “Joint Agreement to Affirm
Independent Relationship for Certain Building and Construction Workers” with [redacted] and
[redacted] expressly stated neither were entitled to worker’s compensation coverage by Byrd
Telcom. (Ex. Ex. J-22, p. 9; J-23, p. 1.)
Since Byrd Telcom is now seeking workers' compensation insurance indemnification
coverage, and since the company offered no evidence that it had entered into written agreements
to provide workers' compensation insurance coverage to either [redacted] and [redacted], the
Court finds the preponderance of evidence shows it is seeking indemnification coverage because
at the time of the accident [redacted] and [redacted] were employees.
Callender’s Purported Subcontractor and Independent Contractor Documents
The day after the crew that had been on the worksite watched their two co-workers die,
Sonny Byrd required the whole crew to come to the office and sign subcontractor and
independent contractor documents. (Tr. 247, 253.) Not surprisingly, Callender credibly testified,
“that day was so messed up, I wasn't in the right frame of mind because of the accident the day
before, and I didn't even read or remember that stuff that I signed.” (Tr. 252-53.) “I normally
don't even read those. When somebody gives me something and I’m working for somebody, I
don’t go into the details of looking at it, I just sign it, you know.” (Tr. 253.)
17
Although the Circle B Electric and Tower Safety and Health Manual was used at the time
of the accident, Sonny Byrd admitted the receipt Callender purportedly signed indicating he had
received it, read it and understood it was different than the actual form contained on the last page
of its manual. (Tr. 41-42; cf. Ex. J-19, p. 4 with Ex. J-4, p. 50.) Callender credibly testified he
never received a copy of the manual and never saw it until it was shown to him at trial while he
was on the witness stand. (Tr. 252.) He also testified the handwriting did not look like his and
the “3” in the date filled in on that receipt form was not how he writes his “3’s.” (Tr. 255; see
also Ex. J-19, p. 7.)
As to the subcontractor and independent contractor documents purportedly signed by
Callender on May 29, 2013, there were two different W-9 forms. (Ex. J-19, pp. 1, 8.) Callender
credibly testified the signature on the first W-9 was not his. (Tr. 246; see also Ex. J-19, p. 1.)
He also credibly testified the handwriting on the second W-9 was not his, that the “3” in the date
was different than his, and that where there the “X” appeared next to “Sole Proprietorship,” he
did not even know what that meant. (Tr. 255-56; see also Ex. J-19, p. 8.)
Further, Callender credibly testified he did not remember checking the box next to “Sole
Proprietorship” on the “Subcontractor Original Application” form, and that he again did not even
know what “Sole Proprietorship” meant. (Tr. 250-51; see also Ex. J-19, p. 2.) He also did not
mark an “X” next to the box that stated “I am not an employer required to provide coverage
under the Workers' Compensation Law,” and he credibly testified, “I don’t put “Xs” and “when I
do something like that, I usually do a check.” (Tr. 251.)
On the "Joint Agreement to Affirm Independent Relationship for Certain Building and
Construction Workers" form, Callender admitted the May 29, 2013, signature was his but that
18
somebody else filled out the section above his signature. (Tr. 253; see also Ex. J-19, p. 5.) As to
the “Agreement Not to Compete,” Callender again testified he did not know what that was. (Tr.
254-55; see also Ex. J-19, p. 6.) Therefore, the Court finds the documents signed by Callender
May 29, 2013, which were also signed by Sonny Byrd and/or Raven Byrd, were fraudulently
altered after he signed them and are given no weight.
Other Purported Subcontractor and Independent Contractor Documents
Randy Davidson also purportedly signed subcontractor and independent contractor
documents on March 18, 2012, March 15, 2013, and on May 29, 2013. (J-20.) Although Randy
Davidson testified all of the handwriting and signatures on each of these documents were his, the
Court does not find him a credible witness, in particular since he also testified he was not given a
choice about whether or not he could sign these documents and still work for the company. (Tr.
350-51.) Clearly, the March 18, 2012, and March 15, 2013, signatures do not match his May 29,
2013, signature. (Cf. Ex. J-20, p. 1 with pp. 2, 3, 4, 5, 6, and 8.) Further, the March 18, 2012,
documents would have necessarily involved Byrd Telcom’s predecessor, Circle B, and are not
relevant to establish the type of employment relationship he had with Byrd Telcom on the day of
the accident. Likewise the May 29, 2013, documents signed after the accident are not relevant to
establish the type of employment relationship he had with Byrd Telcom on the day of the
accident.
The documents purportedly signed by Allen Martin on May 2, 2013, contain a W-9 form
that was not signed or dated. The remaining documents contained signatures that appear not to
match. (Ex. J-24, cf. p. 2 with pp. 3 and 6.) Likewise, [redacted] purportedly signed Byrd
Telcom’s employment application on March 5, 2013, (Ex. J-22, pp. 1-2, 4-6), and that same day
19
purportedly signed independent contractor and subcontractor documents. (Id., pp. 3, 7-10.)
However, the Court finds the signature on the W-9 form included as part of the independent
contractor and subcontractor documents did not match any other signatures purportedly signed
by [redacted]. (Id., p. 10.) The agreement not to compete was also not a Byrd Telcom form but
rather was a Circle B form and was not signed by anyone from Byrd Telcom. (Ex. J-22, p. 7.)
John Davidson purportedly signed employment documents on January 18, 2012, which
again, would have necessarily involved Byrd Telcom’s predecessor, Circle B, and are not
relevant to establish any employment relationship with Byrd Telcom on the day of the accident.
(Ex. J-21, pp. 9-10.) Likewise, records purportedly signed by Claudia Trammell on May 30,
2012, involving Byrd Telcom’s predecessor, Circle B, are not relevant to establish any
employment relationship with Byrd Telcom on the day since there is no dispute she was no
longer employed by Byrd Telcom on the day of the accident. (Ex. J-25.) Finally, the purported
signatures of the deceased, [redacted], on March 19, 2013, did not match his signature on his
social security card. (Ex. J-23.)
Given the Court’s finding supra that Callender’s May 29, 2013, documents, which were
signed by Sonny Byrd and/or Raven Byrd, were fraudulently altered, the Court accords little
weight to any of these other purported subcontractor and independent contractor documents,
which were also signed by Sonny Byrd and/or Raven Byrd.
Byrd Telcom argues in its proposed Findings of Fact and Conclusions of Law it “did not
have sufficient control of its subcontractors’ daily activities under the Circuit’s economic
realities test to justify employer status under the Act.” (Byrd Telcom’s Proposed Findings and
Conclusions, p. 1 ¶¶ 1, 2.) Byrd Telcom also argues in its post-trial brief that in Hopkins v.
20
Cornerstone America, 545 F.3d 338, 343 (5 Cir. 2008), the Fifth Circuit “has interpreted the
Darden factors to evaluate employee status based on an ‘economic-realities’ test.” (Byrd
Telcom’s Post-Trial Br., p. 29.) Thus, Byrd Telcom asserts “the focus is on whether the worker
is economically dependent upon the alleged employer or is instead in business for himself.” Id.
The Court finds no merit in these arguments.
Prior to Darden, the Commission applied the “economic realities test,” which was
premised on the legal proposition that the term “employer” under the Act was not limited to
employment relationships as defined under common law principles but rather was to be broadly
construed in light of the statutory purpose and the economic realities of the relationship at issue.
S & S Diving Co., 8 BNA OSHC 2041, 2042 (No. 77–4234, 1980). However, “the Commission
modified that proposition” in Vergona “in order to conform Commission precedent to [the]
intervening [Darden] Supreme Court decision[.]” Timothy Victory, 18 BNA OSHC at 1027.
Further, Hopkins was decided applying the definitions contained in the Fair Labor
Standards Act, not the Occupational Safety and Health Act, and is therefore distinguishable from
the present case. However, in Equip. Holdings v. O.S.H.C., 203 F.3d 828, (5th Cir. 1999), a case
that is on point and was decided after the Commission abandoned the “economic-realities” test in
Vergona and Timothy Victory in lieu of the Darden factors, the Fifth Circuit affirmed the
Commission’s final order, expressly noting in that case the Commission utilized the Darden
factors to determine employer-employee relationships.
Thus, examining the circumstances of this case in light of the Darden factors, and in
conjunction with employment records, supra, which are either questionable, were related to
employment with Circle B, or were dated after the accident, coupled with the use of Circle B’s
21
safety manual, which references the possibility of termination from employment for safety
violations, and significantly, the party admissions made by both Sonny and Ravan Byrd, the
Court concludes the preponderance of evidence shows Byrd Telcom’s workers were employees.
B. Instance (a) of Item 2
Existence of a Hazard
The Secretary asserts in Instance (a) of Item 2 Byrd Telcom committed a serious
violation of the general duty clause when employees “were exposed to struck-by hazards while
raising a gin pole and were not protected by a properly secured top (hook) block used in raising a
gin pole.” (Compl. ¶ III, a.)
Ayub, the Secretary’s expert in engineering and structural design, opined “[c]arabiners
are manufactured to be used in certain manner. The load is in the major axis of the carabiner,
along the spine of the carabiner.” (Tr. 615-16; see Ex. J-32.) Ayub further explained that “the
support needs to be right above the load so that the carabiner is subjected to tension, no bending
and no flexion, always with tension. This is how it is designed to be used.” (Tr. 616-17.) This is
called “concentric loading,” which is “the only way the carabiner can be used. There is no other
way it can be used other than you can also pull it in the minor axis but the load and the support
have to be in the same line.” (Tr. 644; see also Ex. J-14, p.21 Fig. 27, Ex. J-32.) In his expert
opinion, the manner in which Byrd Telcom’s workers used the carabiner subjected it to flexural
moment—bending—and resulted in the carabiner breaking, releasing the gin pole and its rigging.
(Tr. 644-45.) Specifically, the load was pulling downward on the major axis but the support for
the load was on the side of the carabiner at the gate, which was in the hole of the top plate; there
was no support concentric with the load, just air. (Tr. 644-45; see also Ex. J-14, p. 22 Figs 28-
22
33.) The non-concentric loading of the carabiner is what caused it to bend and then break. (Tr.
644-45; see also Ex. C-12A-D.)
Further, Ayub and OSHA’s laboratory in Salt Lake City, Utah, calculated that the total
weight of the load placed on the carabiner, the gin pole and its rigging components, including the
rooster head and wire rope, was approximately 3600 pounds. (Tr. 650-51; see also Ex. J-3, pp. 4-
5.) The tensile strength is the breaking point—the maximum load should only be about 3300-
3500 pounds, because there needs to be a factor of safety. (Tr. 646-47.) Likewise, although the
carabiner’s minor axis tensile strength is 3,600 pounds (which might have sustained the load
being lifted even if the support for the load was directly on the carabiner gate), the tension of the
load was not directly opposite the carabiner’s gate along the minor axis. (See Ex. J-14, pp. 16-17,
20; Ex. J-32.) According to Ayub, 3600 pounds is the carabiner’s breaking point—the load
should not be more than 1000 pounds in order to ensure a factor of safety. (Tr. 647.)
Further, the intended use of the holes in the top plates of the tower was to bolt the next
section of the tower when building it upward; a tower section is placed on top and then bolts are
used to secure the plates together by placing bolts through the holes. (Tr. 428.) Those holes in the
top plate were neither designed nor intended to hold rigging to hoist heavy steel equipment up
the tower. Indeed, Ayub testified that when the carabiner was failing, it created indentations in
the top plate. (Tr. 649-50; see also Ex. J-14, p. 24, Figures 36 and 37.)
The Court concludes the combination of using the carabiner for hoisting and threading it
through the hole in the top plate created unsafe nonconcentric loading, which created a struck-by
hazard from the failure of the carabiner causing the gin pole to release and fall, which occurred
in this case. Since two employees were killed, the Secretary has shown the cited condition
23
actually posed a hazard to employees.
Recognized Hazard
Under the second element, a recognized hazard is “a condition ‘that is known to be
hazardous' ” and “can be established by proving that the employer had actual knowledge that a
condition is hazardous” or “by proving that the condition is generally known to be hazardous in
the industry.” Acme Energy Servs. v. OSHRC, 542 F. App'x 356, 363 (5th Cir. 2013). Actual
knowledge on the part of the employer is not required; rather, “the question is whether the hazard
is recognized by the industry of which [the employer] is a part.” Arcadian, 110 F.3d at 1197 n. 5
(citation omitted). As indicated infra, the Secretary has established both employer recognition
and industry recognition of this hazard.
Employer Recognition
The Secretary asserts, and the Court agrees, evidence establishes that Byrd Telcom
recognized the hazard. Randy Davidson, the company’s Construction Manager, admitted the use
of the carabiner to hoist the gin pole was “unsafe.” (Tr. 358.) He also testified that it was
important for the rigging to be done properly for safety and that he had never hoisted a gin pole
up a cell tower using a carabiner in lieu of the slings (or choker) and shackle method. (Tr. 312,
326.) He had 12 years of experience in the industry and had done about 40 gin pole jobs before
the accident on May 28, 2013, and had been taught to rig the gin pole to the top of the tower by
wrapping two slings or chokers around two of the tower legs and securing them in the center
with a shackle, to make a “V” formation. (Tr. 290; see also Ex. J-31.) The top block (hook) is
then placed into the shackle in the center of the face of the tower. Randy Davidson learned this
24
technique while employed with two previous tower/telecommunications companies, RP
Communications, and Baggett Construction. (Tr. 307.)
Callender, who had 20 years of experience in the tower/telecommunications industry,
also testified that the use of a carabiner to hoist the gin pole in the manner used was improper
and unsafe based on his training within this industry. He testified that he was taught how to rig a
gin pole to hoist up a tower about 17 years ago and “was taught to take two metal slings for one
on each pole or tower. Put a block in the center [where there is shackle] and raise it like that.”
(Tr. 205, 240.) Callender performed the work of attaching the rigging to the top of the tower
numerous times and had always done it that same way—never with a carabiner. (Tr. 219-20.)
Callender testified that if you rigged the gin pole to the top of the tower by placing a carabiner in
one leg of the tower, the gin pole would veer off to the side of the tower where the carabiner was
attached, instead of going up the center of the face of the tower. (Tr. 220.) Moreover, Callender
said he would never use a carabiner to hoist a gin pole because there would be too much weight
on the carabiner. (Tr. 240-41; see also Ex. C-8A, pp. 51-52.) Therefore, the Secretary
established Byrd Telcom recognized the hazard associated with improperly secured rigging.
Industry Recognition
The Commission has held that expert testimony and other sources such as industry
publications and standards can demonstrate that the hazard is recognized in the employer’s
industry. See American Phoenix, Inc., 24 BNA OSHC 2228, 2014 (No. 11-2969, 2014) (citing
decisions that recognize ANSI standards reflect industry consensus). “Where a practice is
plainly recognized as hazardous in one industry, the Commission may infer recognition in the
industry in question.” Arcadian, 20 BNA OSHC at 2997. Byrd Telcom’s industry recognizes the
25
hazard of using a carabiner in the improper manner in which it was used by Byrd Telcom on its
worksite on May 28, 2013.
The relevant national consensus standard, ANSI/TIA-1019-A-2012, the American
National Standards Institute’s (ANSI) Telecommunications Industry Association (TIA) Standard
for Installation, Alteration and Maintenance of Antenna Supporting Structures and Antennas,
establishes industry recognition of the hazard. As this ANSI/TIA standard indicates, the
“[i]nformation contained in this Standard was obtained from available sources and represents, in
the judgment of the subcommittee, the accepted Industry minimum standard for the installation,
alteration and maintenance of antenna supporting structures and antennas.” (Ex. R-10, p. 13.)
Although it defines rigging as “cables, shackles, slings, blocks, gin pole, load line, jump line, tag
line, etc…used in construction,” carabiners are not included in that definition. (Ex. R-10, p. 16.)
A relevant expert’s testimony is also sufficient evidence in and of itself to establish that a
particular industry recognizes a hazard. See Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d
317, 322 (5th Cir. 1984) (holding that expert testimony established recognition of hazard); see
also National Realty and Constr. Co. v. OSHRC & Secretary, 489 F.2d 1257, 1265 n.32 (D.C.
Cir. 1973) (noting that recognition standards center on “the common knowledge of safety experts
who are familiar with the circumstances of the industry or activity in question.”).
At trial, Vermillion, Byrd Telcom’s own expert, testified that he was a certified rigger
and “would never use a carabiner to jump a gin pole.” (Tr. 762.) Ayub also testified that the use
of a carabiner in place of the shackle in the “V” formation would be an unsafe use of the
carabiner and contrary to its intended use by the manufacturer because it is triaxial loading (the
load is pulling downward and the support for the load is on two sides of the carabiner and not
26
concentric with the load), for which the carabiner was not designed. (Tr. 801.) Importantly,
according to PenSafe, the manufacturer of the carabiner involved in the accident, carabiners are
certified safety rated for fall protection only and are not intended for hoisting heavy steel
equipment. (Tr. 471; see also Ex. J-10.) Further, in Ayub’s expert opinion, “there is not one
manufacturer of the carabiner which will let you use the carabiner in the manner that [Byrd
Telcom] did.” (Tr. 672.) Thus, it is clear that the telecommunication industry recognizes the
hazard of using a carabiner for hoisting heavy equipment and that the carabiner manufacturers
recognize the hazard of non-concentric application of loads with their support. Therefore, the
Secretary established industry recognition of this hazard.
Employee Exposure
“The goal of the Act is to prevent the first accident,” Owens-Corning Fiberglass, Corp. v.
Donovan, 659 F.2d 1285, 1290 (5th Cir. 1981), “not to serve as a source of consolation for the
first victim or his survivors.” Mineral Indus. & Heavy Constr. Group v. OSHRC, 639 F.2d 1289,
1294 (5th Cir. 1981). The Secretary “need not prove that a given employee was actually
endangered by the unsafe condition, but only that it was reasonably certain that some employee
was or would be exposed to that danger.” Mineral Industries, 639 F.2d at 1294 (citing Gilles v.
Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976)). “Thus, the ‘likely to cause death or serious
physical harm’ aspect of the General Duty Clause violation does not require the Secretary to
prove that particular, identifiable employees in fact were exposed to a hazardous condition. It is
the dangerous condition itself that gives rise to a violation of the Clause.” Arcadian, 110 F.3d at
1197 n. 5.
27
Here, however, it is undisputed that two workers died as a result of struck-by hazards
while raising the gin pole and were not protected by a properly secured top (hook) block used in
raising a gin pole. Additionally, John Davidson was also on the tower at the time of the accident
and Grimes, Allen and Callender were working on the ground. Therefore, it was reasonably
certain all of these employees were exposed to death or serious physical harm from the falling
equipment. Accordingly, the Secretary has proven employee exposure.
Preventable Hazard
The struck-by hazard Byrd Telcom’s employees were exposed to while raising the gin
pole could easily have been prevented had the company simply followed the industry practice for
safe and proper rigging of gin poles by wrapping two slings or chokers, one around each leg of
the tower, and connecting them in the center with a shackle to create a “V” formation. (Tr. 205,
240, 309-10, 312, 653, 762-63.) Accordingly, the Secretary has proven the cited hazard was
preventable.
B. Instance (c) of Item 2
Existence of a Hazard
The Secretary asserts in Instance (c) of Item 2 Byrd Telcom committed a serious
violation of the “general duty” clause when “the gin pole was not permanently marked with an
identification number that references a specific load chart and gin pole weight, thereby exposing
employees on and near the tower to struck-by hazards while raising the gin pole.” (Compl. ¶ III,
c.) Sauls and Ayub testified that the inability to associate a gin pole with its load chart could
result in struck-by hazards from equipment or the tower failing. As Sauls credibly testified, if
employees cannot identify the correct load chart for the gin pole they are using, they will not
28
know how much load it can carry. (Tr. 475, 515, 652). Sauls also testified that in addition, the
gin pole provides the weight of the rigging as well as the load for raising the load up to the top of
the tower. Part of the rigging weight is also the gin pole weight, which can be used to determine
what type of equipment to use to secure the top block at the top of the tower. Therefore, the
marking of the gin pole to associate it to a specific load chart is important to the jump line and
raising the gin pole up the tower. (Tr. 515-16). Further, the only reason the workers did not get
to actually place a load on the load line to hoist up the tower after the gin pole was in place was
because the initial rigging to jump the gin pole failed. But for the accident, the employees would
have been exposed to a secondary struck-by hazard from the load line’s potential failure.
Therefore, the Secretary has shown the cited condition actually posed a hazard to employees.
Recognized Hazard
Industry recognition of the hazard of not properly marking the gin pole is again
evidenced by ANSI/TIA-1019-A-2012, which mandates in section 6.2.6, that identification for a
gin pole shall be as follows:
a) Each gin pole assembly and associated rooster head shall be permanently marked
or otherwise clearly referenced for identification to its load chart.
b) The gin pole installation documents shall identify sections requiring a specific
installation sequence and the sections shall be appropriately marked.
c) If a track is used to lift, or jump a gin pole, it shall be identified and acceptable
rigging arrangements shall be included in the installation documents.
(Ex. J- 28, p. 3-4; Ex. R-10, pp. 67-8.)
Byrd Telcom “claims there were adequate markings related to the Gin Pole and load chart
of said Gin Pole in question.” (Joint Pretrial Order, Attach. D ¶ 5.) The Court does not agree.
The gin pole consisted of four sections, one red, one blue, and two white. (Tr. 652, 662.) Byrd
Telcom argues “[t]he stamp on the gin pole section shown in Exhibits R-7(a) and 7(b) offers a
29
clear picture of the corresponding serial number[.]” (Byrd Telcom Br., p. 23.) However, both
exhibits relied on by Byrd Telcom depict a white gin pole section and Sonny Byrd admitted the
white section was not at the worksite at the time of the accident, which was confirmed by
Callender. (Tr. 193, 237.) More importantly, Sonny Byrd admitted the red and blue gin pole
sections that were onsite were not marked at the time of the accident. (Tr. 193-94.)
Byrd Telcom also argues the load chart does not have to be at the worksite because, “the
regulation just simply says, ‘it’s stamped.’ So that anybody who wants to know, including
contractors and employees, could identify this gin pole with this load chart.” (Tr. 191.) Byrd
Telcom’s argument is not germane to Instance (c) of Item 2, which asserted “the gin pole was not
permanently marked with an identification number that references a specific load chart and gin
pole weight.” Further, even if germane, the Court does not agree with Byrd Telcom. The
ANSI/TIA-1019-A-2012 standard mandates “lifted loads shall be field verified prior to the lift
unless the weight is confirmed by the Competent Rigger or Qualified Person.” (Ex. R-10, p. 30.)
Clearly, the lifted loads could not be field verified prior to the lift if the load chart was not onsite.
Accordingly, the Secretary has established industry recognition of the hazard, and further,
with Sonny Byrd’s admission that the red and blue gin pole sections onsite at the time of the
accident were not marked, the Secretary has established Byrd Telcom failed to comply with that
national standard.
Employee Exposure
It is undisputed that two workers died as a result of the company’s failure to permanently
mark the gin pole with an identification number that references a specific load chart and gin pole
weight. Additionally, John Davidson was also on the tower at the time of the accident and
30
Grimes, Allen and Callender were working on the ground. Therefore, it was reasonably certain
all of these employees were exposed to death or serious physical harm from the falling
equipment. Accordingly, the Secretary has proven employee exposure. Byrd Telcom did not
refute this evidence. The Secretary has shown the cited condition actually posed a hazard to
employees.
Preventable Hazard
The cited hazard could easily have been prevented had the company simply followed the
industry practice of properly marking the red and blue gin pole sections that were onsite the day
of the accident with references to a specific load chart and gin pole weight and following the
industry standard of field verifying the lifted loads prior to the lift “unless the weight is
confirmed by the Competent Rigger or Qualified Person.” Accordingly, the Secretary has
proven the cited hazard was preventable.
C. Unpreventable Employee Misconduct Defense
Byrd Telcom asserts the procedures and training in place were within the reasonable
standards used in the industry, and further, the workers’ own failure to follow the procedures and
polices put into place by Byrd Telcom was the sole and proximate cause of the accident. (Byrd
Telcom’s Post-Trial Br. p. 7.) In the Fifth Circuit, the affirmative defense of unpreventable
employee misconduct “requires the employer to show (1) that it has established work rules
designed to prevent the violation; (2) that it has adequately communicated these rules to its
employees; (3) that it has taken steps to discover violations; and (4) that it has effectively
enforced the rules when violations have been discovered.” Sanderson Farms, Inc. v. OSHRC,
31
348 F. App'x 53, 57 (5th Cir. 2009) (citing W.G. Yates & Sons Const. Co. v. OSHRC, 459 F.3d
604, 609 (5th Cir.2006).
Further, “a supervisor's knowledge of his own malfeasance is not imputable to the
employer where the employer's safety policy, training, and discipline are sufficient to make the
supervisor's conduct in violation of the policy unforeseeable.” W.G. Yates & Sons Const., 459
F.3d at 608-09. Byrd Telcom asserts in its proposed Findings of Fact and Conclusions of Law
that “the law of the 5th Circuit as held in the Horne and WG Yates opinions apply and are
controlling in this case” and under the controlling case law, the Secretary “has the burden of
proving constructive notice [through] substantial evidence when [he is] unable to impute the
knowledge of a supervisory employee on to the employer because the supervisory employee was
responsible for violative act.” (Byrd Telcom’s Proposed Findings and Conclusions, p. 2 ¶2.)
In Horne, the Fifth Circuit held an employer who had done everything possible to insure
compliance with the Act short of personally directing the trenching operation himself could not
be held liable on imputation theory for violation of Act because of conscious violations of Act by
his experienced foremen who were thoroughly familiar with employer's safety program and
requirements of Act. Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976).
Here, however, unlike in Horne, Byrd Telcom did not do everything possible to insure
compliance with the Act and John Davidson was not an experienced foreman who was
thoroughly familiar with Byrd Telcom’ safety program and requirements of Act.
Likewise, in WG Yates, the Fifth Circuit held a supervisor’s knowledge of his own
malfeasance is not imputable to the employer where the employer's safety policy, training, and
discipline were sufficient to make the supervisor's conduct in violation of the policy
32
unforeseeable. Here, unlike in W.G. Yates, since John Davidson was not a supervisor, the
Secretary is not imputing a supervisor's knowledge of his own malfeasance. Therefore, neither
Horne nor W.G. Yates are controlling.
Further, the Secretary argues, and the Court agrees, there is sufficient evidence of
constructive knowledge in this case based on Byrd Telcom’s inadequate safety program. Byrd
Telcom had no work rules regarding the use of gin poles and the proper manner to rig a gin pole
to a tower. (Ex. C-7, p. 48; see generally Ex. J-4.) The safety manual was similarly silent as to
carabiners and their appropriate uses. Randy Davidson testified that although he received the
safety manual he did not read it. (Tr. 352-53). Callender also testified he never received the
safety manual, but if he did, he did not read it. (Tr. 252). To the extent Byrd Telcom asserts
someone from Andrew told Byrd Telcom’s workers not to use carabiners, the Court finds it is
not relevant since, as indicated supra, John Davidson credibly testified that no one gave him this
directive. Therefore, the Court finds Byrd Telcom did not have work rules designed to avoid the
cited violations. Thus, the Secretary has also established Byrd Telcom did not effectively
communicate work rules regarding gin poles and rigging gin poles because it had none.
Moreover, the Court concludes Byrd Telcom did not adequately train its employees or
provide them with safe equipment. John Davidson testified had 7½ years of experience in the
tower industry (as of the date of trial) and 3½ of those with Circle B Towers or Byrd Telcom.
(Tr. 523, 528). All of his training however, came from other employers. (Tr. 528, 539-40). He
received gin pole training from a previous employer who taught him to use anything to rig a gin
pole, including carabiners. (Tr. 541). He did not know the full weight of the gin pole and its
33
rigging and assumed that a carabiner—that he believed was rated for 3600 pound—rigged to a
hole in a top plate of one leg of the cell tower was adequate to jump the gin pole.
Significantly, prior to the Georgetown worksite, John Davidson had worked on “very
few,” a “handful at the most,” of gin pole jobs and had never personally done the rigging to jump
the gin pole because someone with more experience rigged the gin poles. (Tr. 524, 540.)
Although he had done one gin pole job with Byrd Telcom prior to the Georgetown worksite,
even on that job someone with more experience rigged the gin pole to the tower. (Tr. 541-42.)
The Georgetown worksite was the first time John Davidson had set up the rigging to jump the
gin pole up the tower. (Tr. 546-47.) He credibly testified he wanted to wait for someone more
experienced to be able to do the rigging but Sonny Byrd wanted to have the job completed before
the Memorial Day holiday. (Tr. 559-60.)
Clearly, John Davidson was not adequately trained and did not appreciate that the use of
the carabiner was unsafe since he believed all carabiners had a breaking strength of 5500 pounds
(Tr. 542). He also selected the biggest carabiner because he thought it would be the strongest.
(Tr. 545). He was unaware of the lifting limitations of a carabiner. The week prior to the
accident when he placed the carabiner in the top plate of one tower leg, Trammell was the
foreman in charge of the worksite, even though she had no experience in climbing towers and no
experience in rigging gin poles. (Tr. 533-34, 543, 547). Byrd Telcom put forth no evidence to
contradict this testimony.
Byrd Telcom argues “every witness with direct knowledge of the accident testified that
John Davidson was the foreman of the job with direct supervisory authority over the work being
performed with the exception of John Davidson himself.” (Byrd Telcom’s Post-Trial Br., p. 16.)
34
The Court does not agree. Although Callender denied that he was the foreman the day of the
accident, John Davidson credibly testified he thought the foreman the day of the accident was
either Callender or his brother Randy since they had the most experience. (Tr. 208, 558-59.)
Callender admitted the day of the accident was his first day back to work at Byrd Telcom,
and that prior to the accident and after the accident, his job title with Byrd Telcom was
“foreman.” (Tr. 208-09.) He also admitted part of the duties of the foreman at the worksite was
to conduct the Job Safety Analyses. (Tr. 208.) Importantly, John Davidson’s undisputed
testimony was that although he signed the “Job Safety Analysis” (JSA) form, he did not do the
safety meeting the morning of the accident—Callender “did the talking part.” (Tr. 208, 553-54.)
The Court finds the preponderance of evidence established Callender, not John Davidson, was
the foreman at the worksite the day of the accident.
Randy Davidson also admitted he was acting in a supervisory role that day, and the Court
concludes he should have known how the rigging had been done, in particular since he signed
the “Equipment Basics Checklist” as the Project Manager on May 20, 2013, which indicated the
specific equipment that had been inspected. (Ex. J-18.) He admitted while on site, he did not do
anything to ensure that the rigging had been done properly and safely and that he left the site
while the hazardous work was in progress. (Tr. 272). Randy Davidson’s admissions corroborate
John Davidson’s testimony that during the time that he worked for Byrd Telcom, no one ever
came to worksites to monitor safety or check for safety issues. (Tr. 569). Ironically, Byrd
Telcom’s own expert, Vermillion, testified that in a speech he gave at a meeting of the National
Association of Tower Erectors, he emphasized that contractors need more oversight and
35
supervision of their workers given that the tower industry had 13 deaths in 2013, and at least 9 in
- (Tr. 761-62).
Randy Davison testified emphatically that the use of the carabiner was wrong and unsafe.
(Tr. 318, 358.) His testimony on this point was corroborated by the Secretary’s expert, as well as
by Callender, who had 20 years of experience in the industry. (Tr. 240-41; Ex. C-8A, pp. 45, 51-
52.) Although Byrd Telcom argued John Davidson went rogue and committed misconduct, he
nonetheless was not disciplined by Byrd Telcom for his use of the carabiner in hoisting the gin
pole. (Tr. 570). Therefore, the Court finds Byrd Telcom did not correct hazards or enforce safety
rules through a progressive disciplinary program.
Moreover, the conflicting testimony about who was in charge at the worksite on the day
of the accident is further evidence of the company’s inadequate supervision. Further, assuming
arguendo John Davidson was the foreman at the worksite the day of the accident, Byrd Telcom’s
placement of an inexperienced supervisor in charge of a worksite is indicative of its lax attitude
toward safety. Because the Secretary established that Byrd Telcom did not have work rules
designed to avoid the cited violations, the Secretary also established Byrd Telcom necessarily
failed to adequately communicate the required rules. Accordingly, constructive knowledge is
also imputed to Byrd Telcom based on its inadequate safety program.12
12
Byrd Telcom pleaded in its Answer that compliance was “infeasible, impractical and contrary to industry
custom,” the inspection “did not comply with §8(a) of the Act and violated the Fourth Amendment to the United
States Constitution,” and the “cited regulations and/or Complainant's interpretation of the cited regulations are
overly ambiguous and insufficient to apprise the Respondent of its legal obligations regarding compliance with the
Occupational Safety and Health Act of 1970, 29 U.S.C. §651, et seq.” As to Byrd Telcom’s argument that
compliance was “infeasible, impractical and contrary to industry custom,” the Court disagrees. As indicated supra,
compliance was clearly feasible, practical and could have been completed according to industry custom. As to the
remaining defenses, Byrd Telcom waived them since it failed to present any evidence on those defenses. Dole
Packaged Food Co., 14 BNA OSHC 1368, 1372 (Nos. 88-0665 and 88-2672, 1989).
36
IV. PENALTY DETERMINATION
“The Commission has the exclusive authority to assess penalties once a proposed penalty
is contested.” Chao v. OSHRC, 401 F.3d 355, 376 (5th Cir. 2005) (citing Arcadian, 110 F.3d at
1199). See also Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994).
“Section 17(j) of the [ ] Act, 29 U.S.C. § 666(j), guides the Commission's assessment of a
penalty.” Id. (citing J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2216 (No. 87-2059). The
Commission is to “giv[e] due consideration to the appropriateness of the penalty with respect to
[1] the size of the business of the employer being charged, [2] the gravity of the violation, [3] the
good faith of the employer, and [4] the history of previous violations.” Id. “These factors are not
necessarily accorded equal weight....” Id. (citing J.A. Jones, 15 BNA OSHC at 2216).
“Gravity of violation is the key factor,” see id., which “is based on the number of
employees exposed, duration of exposure, likelihood of injuries, and precautions against
injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052,
2005). The Court has considered Byrd Telcom’s size, history of violations, and good faith, but
finds the gravity of the serious violation warrant the assessment of the maximum penalty, even if
Byrd Telcom rated “perfect marks on the other three criteria.” Nacirema Operating Co., Inc., 1
BNA OSHC 1001, 1003 (No. 4, 1972).
As to the gravity of the violation, two employees were tragically killed. Given the
fatalities that did occur, and the high probable extent of physical injuries should future accidents
occur, the Court finds the gravity of the hazard is high. For the serious violation, Byrd Telcom is
subject to a civil penalty of up to $7,000.00. 29 U.S.C. §666(b). The Secretary proposed the
maximum statutory civil penalty of $7,000.00, which the Court finds appropriate. Accordingly,
37
IV. ORDER
IT IS HEREBY ORDERED THAT amended Instances (a) and (c) of Item 2 are AFFIRMED
and Byrd Telcom is assessed and directed to pay to the Secretary a civil penalty of $7,000.00.13
SO ORDERED THIS 28th day of September, 2015.
/s/
JOHN B. GATTO, Judge
U.S. Occupational Safety and
Health Review Commission
13
See section 17(l) of the Act, which mandates that civil penalties owed under this Act “shall be paid to the
Secretary for deposit into the Treasury of the United States[.]” 29 U.S.C. §666(l).
38
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