RJCL Corp., d/b/a RNV Construction (ALJ decision, December 10, 2021)

Plain-English summary

An OSHA compliance officer observed an RNV Construction employee painting from a ladder placed on an elevated mall overhang without effective fall protection. The employee wore a harness, but the judge credited photographs and the officer's testimony showing that it was not connected to a lanyard or anchor, and a nearby scaffold did not qualify as a guardrail or safety net. The employee worked in plain view of the supervisor who had assigned the task, establishing employer knowledge. RNV also conceded that another employee used a pressure washer while wearing open-toed shoes. Both serious items were affirmed, but the judge reduced the proposed penalties because OSHA presented limited support for its calculations, assessing $4,200 for fall protection and $800 for footwear.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.501(b)(1) and 1926.95(c).
• Outcome: Two serious citation items affirmed; total penalties of $5,000 assessed.
• Key point: Wearing a harness is not fall protection unless it is connected to a complete personal fall-arrest system, and OSHA must support proposed penalty amounts with evidence.

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

S ECRETARY OF LABOR ,

Complainan t,

v.

RJCL
CORP. d/b/a RNV
Construction ,

Respondent.

DOCKET NO.
   20- 0456

Appearances:

Rachel Uemoto , Esq. ,
Jeannie Gorman, Esq. , U.S. Department of Labor, Office of the Solicitor, S eattle, WA

For Complainant

Moises Tagle, Jr.,
Pro Se , RNV-Construction, Saipan, Northern Mariana Islands

For Respondent

Before: Administrative Law Judge
Brian A. Duncan

DECISION AND ORDER

Procedural History

On
January 21, 2020,
Compliance Safety and Health Officer (CSHO) Pologa Setu was driving from an unrelated inspection when he observed someone working on an elevated platform over the entrance to the DFS Saipan Galleria mall in Garapan, Saipan (worksite) . ( Tr. 16; Ex. C-4). CSHO Setu parked his vehicle and proceeded towards the Galleria entrance , where he took photographs of the worksite . ( Ex. C- 3 ). Upon closer observation, CSHO Setu observed one of Respondent’s employee s working from a ladder on the elevated platform , later identified as Ricky Taraya , who was not tethered to an anchor point, nor were guardrails or a safety net installed. (Tr. 68-71 ; Ex. C-3 ). In addition, CSHO Setu observed an other of Respondent’s employee s using a p ressure washer to clean a sidewalk while wearing open-toed shoes. (Tr. 81-82 ; Ex. C-3 ).

Based on
CSHO
Setu’s observations and subsequent recommendations , Co mplainant issued a Citation and Notification of Penalty , alleging t wo serious violations of the Act and a propos ed penalty of $ 13,880 . Respondent timely contested the Citation , which brought the matter before the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the OSH Act.

The Chief Administrative Law Judge designated this matter for Simplified Proceedings on April 3, 2020 .

A trial was held on
June 11 , 20 21 , via Zoom
online
conferencin g . The following individuals testified: (1) CSHO Pologa Setu; (2) Area Director Roger Forstner ; and (3) Ricky Taraya , Respondent’s employee . Complainant timely submitted his post-trial brief to the Court. Respondent submitted a two -page post-trial brief. 1 As discussed in detail below, t he Court finds Complainant presented sufficient evidence to prove Respondent violated the standard s alleged in the Citation and Notification of Penalty .

Jurisdiction
& Stipulations

The parties
stipulated
that
the Commission has j urisdiction
over this proceeding
pursuant to Section 10(c) of the Act
and
that,
at all times
relevant to this proceeding,
Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). ( Tr. 16-20; Ex. C-4 ) .

See
Slingluff v. OSHRC , 425 F.3d 861 (10th Cir. 2005).

Factual
Background

According to the parties’ stipulations, Respondent is a “ construction company which provides construction services . ” ( Tr. 17-20; Ex . C-4 ). According to CSHO Setu , Respondent has approximately 100 full-time employees . ( Tr. 18; Ex. C-4 ). At the time of the inspection , Respondent employed approximately 36 individuals at the DFS Galleria mall worksite , specifically . (Tr. 18; Ex. C-4 ).

As noted previously,
CSHO Setu was returning
to his hotel
from
a separate , unrelated
inspection when he observed an individual on a ladder , on top of an eave platform which covered the entrance to the DFS Galleria. (Tr. 62 ; Ex. C-3 ). T he elevated work surface in question wa s a small , horizontal platform that protrude d over doorway entrance s to the DFS Galleria mall . (Ex. C-3 at 2). It measure d roughly 10-feet deep , and according to CSHO Setu , was about 15 feet above the ground. (Tr. 61-62 ; Ex. C-3 ).

CSHO Setu testified
the employee was wearing
a harness; however,
he noticed
the harness was not connected to a lanyard or any discernible anchor point. (Tr. 71 ). Respondent asserts that

Mr.
Taraya
had a lanyard , which
was
anchored to
the mural
on
the
exterior of the building. (Tr.
108 ).
Mr. Taraya
testified he had
attached a lanyard to the ring on the back of his harness prior to ascending the ladder . (Tr. 110-111 ).

CSHO Setu , on the other hand,
provided testimon ial
and photographic evidence showing Mr. Taraya , though wearing a harness, was not tethered to an anchor point at any point during CSHO Setu’s inspection. (Ex. C-3 ). Further, CSHO Setu testified that Mr. Taraya did not disconnect his harness from anything when he approached him and asked him to come down. (Tr. 64 ).

Respondent
also
raise d
the fact that one of the
photographs
shows
a scaffold along a portion of the
leading edge
Mr.
Taraya was working from. (Ex.
C-3 ).
According to Respondent, t h e
scaffolding purportedly
could have
served as a method of fall protect ion , presumably serving as both guardrail and safety net in the area where it was located. However, CSHO Setu testified that a nearby scaffold does not qualify as any of the three listed forms of fall protection under 1926.501(b)( 1 ) . (Tr. 76-77). CSHO Setu also noted the scaffolding was not present when he first arrived at Respondent’s worksite. (Tr. 77 ; Ex. C-3, p.2 ).

After CSHO Setu concluded his
assessment
of the fall protection issue, he noticed a
different
employee
using a
gasoline-powered
pressure
washer on the
sidewalk while wearing
open-toe shoes. (Tr.
81 ; Ex.
C-3 ).
According to CSHO Setu, t he employee was washing the sidewalk in plain view of his supervisor , who se area of supervision was limited to a small area at the front of the DFS Galleria . (Tr. 82 ).

At the conclusion of the inspection, CSHO Setu recommended, and Complainant issued, the Citation items discussed below.

Discussion

To establish a
prima facie
violation of a specific standard promulgated under section 5(a)(2) of the Act, the Secretary must prove by a preponderance of the evidence that: (1) the standard applie d 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 (No. 85-0531, 1991).

Citation 1, Item 1

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

29 CFR 1926 . 501(b)(1) :
Each employee on a walking/working surface with an unprotected side or edge which was 6 feet (1.8 M) or more above a lower level was not protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems .

Front of the Galleria south side: An employee painting the front of the building from an overhang 11-feet above the ground was not protected from falling to the lower level.   

Citation and Notification of Penalty
at 6.   

The Standard
Applie d

The cited standard states, “ Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems. ” 29 C.F.R. § 1926.501(b)(1). Mr. Taraya was working on an elevated surface more than 6 feet above the ground, and that elevated surface had an unprotected edge running along its entire length. (Ex. C-3). As illustrated by the photographs submitted into evidence, as well as the testimony of CSHO Setu, the Court finds the standard applie d .

The Terms of the Standard Were Violated

The standard requires
employees working on an elevated surface with an unprotected edge to be protected from falling by using guardrails, safety nets, or personal fall arrest systems. 29 C.F.R. § 1926.501(b)(1). There is no dispute the unprotected edge did not have a safety net or a guardrail to protect Mr. Taraya from falling; however, the parties dis agree over whether he was properly using a personal fall arrest system (PFAS).

First, the Court dispose s
of the notion
that
the scaffold Respondent placed next to the elevated surface after CSHO Setu arrived was sufficient fall protection . It wa s not. The standard requires one of three methods of fall protection, and none of them includes a nearby scaffold , let alone a scaffold adjacent to only a portion of the unguarded edge. See 29 C.F.R. § 1926.501(b)(2) . The requirements for installing a guardrail are specified in § 1926.502(b) , and a scaffold does not qualify. More importantly, the scaffold was moved to the location after CSHO Setu arrived.

Second, the parties
seem to agree that Mr. Taraya was wearing a harness, but dis agree on whether Mr. Taraya ’s harness was attached to anything while he was working on the elevated surface. A PFAS “ consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. ” 29 C.F.R. § 1926.500(b). In other words, a harness is just a harness ; without the lanyard and anchor point, it does not qualify as a PFAS. It also does not qualify if the fall protection equipment wa s present, but not connected to an adequate anchor point. The Court finds the weight of the evidence in this record supports Complainant. CSHO Setu testified that he observed Mr. Taraya working on the ladder on top of an elevated surface a bove the DFS Galleria entrance from his vantage point across the street . (Tr. 62-63 ). It is, in fact, the reason CSHO Setu decided to stop and conduct an inspection in the first place. As he walked towards the elevated work surface, CSHO Setu testified Mr. Taraya did not appear to be anchored to anything, nor did he disconnect his harness from anything when he was asked to come down to the ground leve l to talk to the CSHO . (Tr. 90 , 91 ).

Although
Mr. Taraya testified
that
he connected a lanyard when he went up the ladder, which itself was placed on top of the elevated platform , the Court finds CSHO Setu’s testimony to be more credible . (Tr. 108 ). CSHO Setu pointed to the photographs and his own memory of the inspection and convincingly showed there was no evidence of a lanyard or anchor point at any place on the mural Mr. Taraya was painting. (Ex. C-3). The Court cannot see one, nor could Respondent specify where, if anywhere, the lanyard was anchored. Finally , and perhaps most damaging, the measurements are not consistent with Mr. Taraya’s testimony . According to Mr. Taraya, he connected his lanyard to an anchor point on the mural towards the bottom of the ladder. (Tr. 108 ). Under cross-examination he further testified the lanyard was approximately 5-feet long . (Tr. 115 ). Although no measurements were made of the ladder Mr. Taraya was on , the Court rejects Mr. Taraya’s testimony that a 5-foot lanyard , attached to the middle of Mr. Taraya’s ba ck, would have permit ted him to ascend the ladder in the photograph to a height nearly double that of his own. (Ex. C-3 at 1). See Fluor Daniel , 19 BNA OSHC 1529, 1531 (Nos. 96-1729 & 96-1730, 2001) ( “[T]he Commission may draw reasonable inferences from the evidence[.]”  ( citing  Atlantic Battery Co. , 16 BNA OSHC 2131, 2159 (No. 90-1747, 1994 ) ) . Accordingly, the Court finds Respondent violated the terms of the cited standard.

Respondent’s Employees Were Exposed to the Hazard

The
investigative photographs
clearly
show
Mr. Taraya standing on the elevated
surface,
at the top of
a ladder, w earing a
harness ,
which
the Court has found
was not connected to anything .
Accordingly, the Court finds Complainant established Respondent’s employee was exposed to a fall hazard.

Respondent
Knew or Could Have Known
of the Violation

The standard for knowledge is whether Respondent knew or, with the exercise of reasonable diligence, could have known of the violation. See Dun-Par Engineered Form Co. , 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). If a supervisor is, or should be, aware of a hazardous condition, it is reasonable to charge the employer with that knowledge. See Mountain States Tel. & Tel. Co. v. OSHRC , 623 F.2d 155, 158 (10th Cir. 1980).

According to the testimony of both CSHO Setu and Mr. Taraya, Respondent’s supervisor was aware Mr. Taraya w as working on the elevated surface, and, as illustrated by the photographs taken by CSHO Setu, it is clear Mr. Taraya was working in plain view. (Tr. 71-72 ; Ex. C-3). Indeed, Mr. Taraya ’s location and actions w ere open and obvious enough to stop CSHO Setu while he was driving by in his car . Considering the fact that Mr. Taraya’s supervisor directed him to go up on the elevated surface to paint, there is no question he was aware of the condition . (Tr. 72).

CSHO Setu was able to see
that
Mr. Taraya did not have a
properly connected
PFAS on while he was working
on the
elevated platform
ladder,
which was e qually
visible to Mr. Taraya’s supervisor , who was in the immediate vicinity. Because Mr. Taraya’s supervisor could have easily observed the hazardous condition with the exercise of reasonable diligence, the Court finds his knowledge is properly imputable to Respondent. Dover Elevator Co. , 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (“ Constructive knowledge, just like actual knowledge, can be imputed to the employer through the knowledge of its supervisory employees. ”) . Accordingly, the Court finds Respondent had constructive knowledge of the violative condition.

The Violation Was Serious

A violation is classified as serious under the Act if “there is substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). Complainant need not show there was a substantial probability an accident would occur, only that if an accident did occur, serious physical harm could result. Mosser Constr., Inc. , 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010). The testimony was clear and unrebutted that a fall from over fifteen feet, factoring in the height of the elevated platform and Mr. Taraya ’s location on the ladder, c ould have resulted in serious injuries or death. Accordingly, the Court finds Complainant established that the violation of 29 C.F.R. § 1926.501(b)(1) was properly characterized as serious . Citation 1, Item 1 wi ll be AFFIRMED.

Citation 1, Item 2

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

29 CFR 1926. 9 5(c) :
The employer did not ensure employees wore proper footwear which meets the requirements and specifications in American National Standard for Men’s Safety-Toe Footwear, Z41.1-1967 .

In front of DFS north side: An employee wearing open toe footwear was water blasting the pavement. The employee was exposed to laceration and crushed-by hazards.

Citation and Notification of Penalty
at
7 . 2

Respondent Confessed to the Existence of a
Violation

Prior to taking evidence, the Court
permitted the parties to present brief opening statements . During his opening statement, and upon clarifying questions from the Court, Mr. Tagle admitted Respondent was not disputing the factual allegations in Citation 1, Item 2 . (Tr. 53-55). Upon further questioning, Mr. Tagle stated Respondent was only disputing the penalty, which they viewed as excessive in light of the violation. The Court accepts Mr. Tagle’s concession of the violation elements for Citation 1, Item 2. 3 The Court will address the appropriateness of Complainant’s proposed penalty below.

Penalty

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 of the Act. See 29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes advisory when an employer timely contests the matter. Brennan v. OSHRC , 487 F.2d 438, 441 – 42 (8th Cir. 1973); Revoli Constr. Co. , 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 17]”, which it determines de novo . 29 U.S.C. § 666(j); see also Valdak Corp. , 17 BNA OSHC 1135 (No. 93-0239, 1995). In determining an appropriate penalty, the Court is required to consider “ the employer ’ s size, the gravity of the violation, the good faith of the employer, and any prior history of violations.” Briones Util. Co. , 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) ( citing 29 U.S.C. § 666(j) . These factors are not necessarily accorded equal weight. J.A. Jones Constr. , 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) ( citation omitted ). Gravity , which is the primary focus of any penalty analysis, is a holistic measure of how hazardous a particular violation is and takes into consideration: (1) how many employees were exposed and for how long; (2) whether Respondent took precautions against injury ; (3) the probability an accident will occur; and (4) the likelihood an injury will occur . See , e.g. , Capform, Inc. , 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d , 34 F. Appx. 152 (5th Cir. 2002) (unpublished).

In the case of the fall protection violation alleged in Citation 1, Item 1, Complainant proposed a penalty of $8 , 675 . According to AD Forstner, the penalty was premised on multiple factors, including Respondent’s size and the severity of the hazard. Complainant presented evidence of size (100 employees) and the general nature of the hazard; however, there was very little discussion of how long Mr. Taraya was exposed , and Complainant did not engage in the typical recitation of penalty-based assessments, such as “high gravity” , “lesser probability” , and whether discounts were applied and on what basis. While this information is contained in Complainant’s Violation Worksheet, it is devoid of context or explanation . It is Complainant’s obligation to support its proposed penalty with evidence bearing on the factors described above. See Valdak Corp ., 17 BNA OSHC at 1138 . Based on the limited facts presented, the Court finds a penalty of $ 4,2 00 is appropriate .

As to Citation 1, Item 2 , the Court finds the record even less persuasive in support of Complainant’s proposed penalty. Neither AD Forstner nor CSHO Setu spent significant time discussing the violation itself, let alone the factors they considered in assessing a penalty of $5 , 205 . While the warning label on the power washer indicate d the possibility of severe injury, the Court finds the CSHO Setu’s discussion of possible cuts to the feet or debris entry into an existing wound to be quite speculative and extreme. (Tr. 80-81). The Court also notes the disparity between CSHO Setu’s trial testimony regarding the seriousness of the violation and his investigative notes, which state, “The most serious injury or illness which could be reasonably expected to result would be injuries not resulting in hospitalization and requiring only minor supportive treatment.” (Ex. C- 2 at 11). While the Court is mindful that Respondent confessed the existence of the violation as alleged, based on the facts presented, and the totality of the circumstances, the Court finds a penalty of $ 80 0 is appropriate.

O RDER

Based upon the foregoing Findings of Fact and Conclus i ons of Law, it is ORDERED

that:

1. Citat ion 1, Item
   1
   is
   AFFIRMED as
   a
   serious
   violation of
   29 C .F.R. § 1926.501(b)(1 ) ,
   and a penalty of $ 4,2 00 is ASSESSED ; and

2. Citation 1, Item 2 is AFFIRMED as
   a
   serious
   violation of
   29 C . F . R .
   § 1926.95(c) ,
   and a penalty of $ 8 00 is ASSESSED.

/s/
Brian A. Duncan

Date:    November 1,
2021
Judge Brian A. Duncan

Denver, Colorado         
U.S. Occupational Safety and Health Review Commission

"

1 .
Respondent’s post-trial brief was erroneously submitted to a non-OSHRC email address. Upon discovery of this error and notice from the Court, Respondent re-submitted the brief through OSHRC’s electronic filing system. Complainant filed a motion objecting to Respondent’s late-filed brief, which was denied.

2 . Complainant originally alleged a violation of 29 C.F.R. § 1926.96; however, upon filing the Complaint, Complainant amended Citation 1, Item 2 to allege a violation of 29 C.F.R. § 1926.95(c).

3 .
Respondent’s acceptance of Citation 1, Item 2 negates the need to evaluate its alleged affirmative defense of unpreventable employee misconduct for this item.