Equity Residential Development Corporation

Plain-English summary

OSHA cited Equity Residential Development Corporation after workers were observed performing roofing work without fall protection at a height of 10.3 feet. The citation alleged that the company failed to have a competent person conduct adequate jobsite inspections and failed to retrain employees on fall-protection requirements. Equity timely contested the citation but neither the company nor its representative appeared at the hearing. After the Secretary presented evidence supporting the violations and penalties, the judge entered a default judgment. Both serious items were affirmed, with penalties of $1,500 each.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(2); 29 C.F.R. § 1926.503(c)
• Outcome: Two serious items affirmed by default; $3,000 total penalty assessed.
• Key point: An employer that fails to appear at the hearing may face default judgment when the Secretary presents satisfactory evidence supporting the citations.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 97-1838
:
Equity Residential Development : EZ
Corporation, :
Respondent. :

Appearances:

      Maureen Cafferkey, Esquire                            Ms. Linda Radcliff
         Office of the Solicitor                                LRR and Associates
         U. S. Department of Labor                              Buckeye Lake, Ohio
         Cleveland, Ohio                                             For Respondent
              For Complainant                                               (No Appearance)

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                     DECISION AND ORDER

      This proceeding arises under § 10(c) of the Occupational Safety and Health Act of 1970,

29 U.S.C. § 651, et seq. (“the Act”) to review a citation issued by the Secretary of Labor pursuant
to § 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to § 10(a) of the
Act.
On September 27, 1997, Equity Residential Development Corporation (Equity) was issued
a citation alleging serious violations of construction standards contained in 29 C.F.R. Part 1926.
Items 1 and 2 of Citation No. 1 read as follows:
Citation No. 1, Item 1

   29 CFR 1926.20(b)(2): The employer did not initiate and maintain a program that
   provided for frequent and regular inspections of the jobsite, materials and
   equipment, by competent persons designated by the employer: (A competent person
   is defined as one who is capable of identifying existing and predictable hazards in the
   surrounding or working conditions which are unsanitary, hazardous, or dangerous
   to employees, and who has authorization to take prompt corrective measures to
   eliminate them):

   a)      The employer failed to ensure a competent person performed
           frequent and regular inspections of their jobsite as workers were
           observed performing roofing work without a personal fall arrest
           system who were subject to a fall of 10.3 feet, which was not
           identified and corrected during inspection of the jobsite.

Citation No. 1, Item 2

   29 CFR 1926.503(c): “Retraining.” When the employer had reason to believe that
   any affected employee who had already been trained did not have the understanding
   and skill required by paragraph (a) of this section, the employer did not retrain each
   such employee. Circumstances where retraining is required include, but are not
   limited to, situations where:

   (1)     Changes in the workplace render previous training obsolete; or
   (2)     Changes in the types of fall protection systems or equipment to be
           used render previous training obsolete; or
   (3)     Inadequacies in an affected employee’s knowledge or use of fall
           protection systems or equipment indicate that the employee has not
           retained the requisite understanding or skill.

   a)      The employer failed to ensure each employee, who had already been
           trained had the understanding and skill required by paragraph (a) of
           this section, was retrained, as the site superintendent was unfamiliar
           with the specific requirements for alternative means of fall protection
           (slide guards and required placement), in lieu of conventional
           systems for fall protection.

   Equity filed a timely notice of contest, and this matter was assigned for EZ trial proceedings

in accordance with 29 C.F.R. § 2200.200, et seq. A hearing was held in Columbus, Ohio, on June
11, 1998, in accordance with 29 C.F.R. § 2200.209(f). The Secretary was represented by her

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attorney, Maureen Cafferkey. Respondent did not appear at the hearing and its representative,
Linda Radcliff, also failed to appear at the hearing.
The Secretary’s attorney moved for default judgment against Equity, and in favor of the
Secretary when neither Equity nor its representative appeared at the hearing. She advised the judge
of the sequence of events that occurred prior to the hearing in this matter.
The Secretary presented evidence relating to the alleged violations and proposed penalties.
She established her right to relief by evidence satisfactory to the judge. At the conclusion of the
presentation of this evidence, a decision and order was issued from the bench granting the
Secretary’s motion for default judgment affirming the serious violations as alleged and assessing
penalties totaling $3,000 as follows:
Item Assessed
No. Penalty

                    1                                     $1,500
                    2                                     $1,500

   Excerpts of relevant transcript pages and paragraphs, including findings of fact and

conclusions of law, are attached hereto in accordance with 29 C.F.R. § 2200.209(f).

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Federal Rule of Civil Procedure 52(a).

                                          ORDER

   Based upon the foregoing decision, it is ORDERED:
   1.      The Secretary’s motion for default judgment against Equity, and in favor of the

Secretary, is GRANTED.

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2. Items 1 and 2 of Citation No. 1 are affirmed as serious violations and penalties
totaling $3,000 are assessed.

                                        STEPHEN J. SIMKO, JR.
                                        Judge

Date: June 17, 1998

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