30 River Court East Construction Corp.

Plain-English summary

OSHA observed a worker near the open perimeter of the 27th floor of a Jersey City high-rise without fall protection and cited the general contractor, 30 River Court East Construction. The compliance officer believed the worker was installing winter-protection plastic, work performed by the contractor's laborers, but he never interviewed or identified the person. His brief video did not clearly show what the worker was doing. Project records and credible testimony showed that the contractor's laborers were working elsewhere and that employees of several subcontractors were present in the area. Chief Judge Irving Sommer found that OSHA did not prove the worker was employed by the cited company and vacated the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: Serious fall-protection citation vacated.
• Key point: OSHA must prove the exposed worker was an employee of the cited employer; an assumption based on unclear observations is not enough when credible project evidence points to a subcontractor.

Full text (OSHRC public release)

                            United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                       1120 20th Street, N.W., Ninth Floor
                          Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 99-1085
:
30 RIVER COURT EAST :
CONSTRUCTION CORP., :
:
Respondent. :

APPEARANCES:

             John S. Ho, Esquire                          James S. Richter, Esquire
             New York, New York                           Newark, New Jersey
             For the Complainant.                         For the Respondent.

Before: Chief Judge Irving Sommer

                                 DECISION AND ORDER

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

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
inspected Respondent’s work site, a construction project in Jersey City, New Jersey, on January 8,
1999. As a result of the inspection, OSHA issued Respondent a serious citation alleging a violation
of 29 C.F.R. 1926.501(b)(1). Respondent contested the citation, and this matter was designated for
E-Z Trial pursuant to Commission Rule 203(a). The hearing in this matter was held in New York
City on September 28, 1999. Both parties have submitted post-hearing briefs.
The OSHA Inspection
The project was a high-rise structure being built by the steel-reinforced concrete method.
Respondent, the general contractor, had about ten employees at the site in January of 1999; half of
these were supervisors and the other half were laborers who did cleanup work and put up plastic
along the open sides of the building to serve as “winter protection” for the poured concrete so that
 2

it would cure properly. OSHA began an inspection of the project in November 1998, and the focus
of the inspection was fall hazards that had been identified at the site. On January 8, 1999, a cold,
windy and snowy day, Edward Norton, an OSHA compliance officer (“CO”), arrived at the site just
before 11 a.m., at which time he saw an employee who appeared to be installing plastic at the
perimeter of the 27th floor without fall protection.1 The CO videoed a small segment of the work and
watched the employee for 10 or 15 minutes, after which he went to the job site trailer and met with
Kenneth Nelson, Respondent’s superintendent. The CO told Nelson what he had seen, and Nelson
said that his employees were supposed to wear fall protection when installing the plastic. CO Norton
asked Nelson if they could go to the 27th floor, and when they went outside the employee was no
longer there; they then learned that the elevator was not working, and when Nelson said that they
could climb the stairs but that he would have to take it easy due to a medical condition, the CO
decided to forego a visit to the 27th floor. Nelson stated he would take care of the problem, and he
proceeded to radio personnel in that regard. Norton then continued his inspection on some of the
lower floors, and Nelson accompanied him for a time. Norton never interviewed the employee he
had seen, and he left about two hours after his arrival because of worsening weather conditions.
Discussion
The cited standard provides as follows:
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.
The record in this case establishes that an employee at the site was working near the
perimeter of the 27th floor at the time of the CO’s arrival. The Secretary contends that she has shown
a violation of the standard because the employee was installing plastic and because both Kenneth
Nelson and David Jenkens, Respondent’s general projects lieutenant at the site, acknowledged that
if the employee was installing plastic, he was one of their laborers. (Tr. 101; 121). Respondent, on
the other hand, contends that the Secretary has failed to demonstrate that the employee was one of
its laborers. The evidence in this regard follows.

   1
     Although the citation alleges that the employee was installing plastic on the southwest side

of the 26th floor, the record establishes that the cited work was taking place on the 27th floor.
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    The CO testified he believed the employee was one of Respondent’s laborers due to the work

he was doing and what Nelson told him. The CO further testified that he did not go to the 27th floor
to speak with the employee because of Nelson’s medical condition, that he did not video more of the
employee’s work as he was more concerned about the fall hazards on the top deck, which involved
employees of one of the subcontractors, and that when he videoed the employee he thought he
worked for the subcontractor. The CO said that Nelson never told him during any later visits that the
employee had not been his; however, the CO never confirmed the identity of the employee, and he
agreed his inspection would have been more effective had he interviewed the employee. (Tr. 17-58).
David Jenkens testified that he oversaw the work on the project and was familiar with the
concrete pouring and plastic installation procedures used on the job. He explained that normally, the
pouring of the deck would start between 7 and 8 a.m. on the east end of the building and progress
to the west end, being finished around 5:30 or 6 p.m. He also explained that when winter protection
was required, the building was divided into three sections, east, center and west, and that plastic was
installed along the open sides of each section, beginning with the east section, in a counterclockwise
direction. Specifically, plastic was put along the south side of the east section and then along the east,
north and west sides, which would separate the east section from the center section. Respondent’s
laborers would next place heaters in the east section as the concrete was poured on the deck above
that section; the laborers would then proceed to the next section and follow the same process, with
the west face of the building the last to be covered with plastic. Jenkens drew R-3, a diagram of this
process, at the hearing, and he noted that the “curtain work” on the three sections usually took place
from about 7 to 11 a.m., 11 a.m. to 2 p.m. and 2 to 5:30 p.m., respectively. (Tr. 66-73; 76-80; 93).
Jenkens further testified that there had been problems with the equipment that pumped the
concrete up to the top deck on January 7 and 8, 1999, and that the concrete had to be poured “by the
bucket,” which took much longer; there also had been problems with the crane, and, as a result, only
about 100 yards of concrete were poured on the 28th floor on January 7, leaving another 330 yards
to be poured.2 Jenkens said that due to these problems and the weather, and to best utilize his
laborers, he probably would have had them put up the plastic on the 27th floor as far as they could

    2
     Jenkens derived this information, and the other details of the work at the site during this

period, from R-2, the daily reports for the project from January 1 to 11, 1999. (Tr. 74).
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on January 7 without closing off the center and west sections, which would have been left open so
that carpenters could “jack up” the deck to the engineer’s specifications before the concrete was
poured; the carpenters did this by adjusting the wedges under the posts that were spaced every 4 feet
to help support the deck.3 Based on his knowledge of the work, Jenkens thought it very unlikely that
one of his laborers was on the west side of the building installing plastic at 11 a.m. on January 8. He
indicated that concrete had been poured on about half the deck over the center section and that the
laborers would have been performing heating duties; he further indicated there would have been
eight or nine carpenters jacking up the deck in the west section and that the worker in C-2 could have
been picking up plastic and moving it out of the way in order to jack up the deck.4 (Tr. 72-76; 80-96).
Kenneth Nelson testified he had assumed the employee was his based on what the CO had
said; he agreed with Jenkens that no plastic was being installed that day, but he explained that the
weather could have caused a “blowout” that the employees might have had to repair and that he did
not know what was going on until he checked with them. Nelson further testified he had not been
able to reach anybody on the 27th floor by radio and that after accompanying the CO for a while he
went to that floor. Once there, he noted plastic had been installed on the south, east and north sides
of the building but that the west side was open; only the east section was closed off, and personnel
for other trades were working in the other two sections. He also noted that two laborers were moving
heaters from the east section, and when he asked if they had been installing plastic they said they had
not. The CO was no longer on the site when Nelson went back down, and while he was not sure, he
thought he had told the CO at a later date that the employee had not been one of his. (Tr. 109-30).
Based on the above, I conclude the Secretary has not shown that the employee was one of
Respondent’s laborers. First, the CO never interviewed or confirmed the identity of the employee,
and he conceded that interviewing employees was an essential part of an inspection and that his

   3
    Jenkens indicated that the jacking-up work occurred in each section about an hour before

the concrete was poured on the deck above that section. (Tr. 90-91).
4
Jenkens said there could have been up to 80 employees on the 27th and 28th floors that day,
including masons, carpenters, laborers, plumbers and other trades. He also said the plastic in C-2
could have been there from the installation work the day before and that the plastic was also used
as rain protection for materials, equipment and even employees. (Tr. 88-92; 102).
 5

inspection would have been more effective if he had done so. (Tr. 33; 38; 43). Second, the CO
indicated that a video is a vital part of an inspection if it will be relied upon to establish a violation,
and he testified that he watched the employee installing plastic for 10 to 15 minutes; however, in
spite of this testimony, C-2 depicts a few seconds of a barely discernible scene, and the CO himself
acknowledged it was difficult to tell from C-2 what the employee was doing. (Tr. 18-22; 34; 37).
These circumstances, together with the testimony of Jenkens and Nelson, render the CO’s testimony
about what the employee was doing significantly less cogent than it might otherwise have been.
Third, even assuming arguendo that the CO’s testimony constituted a prima facie showing that the
employee was one of Respondent’s laborers, I find that the testimony of Jenkens and Nelson rebutted
that of the CO. I observed the demeanors of these two witnesses as they testified and found their
statements consistent, convincing and credible; their testimony was also supported by R-2, the daily
reports of the work taking place at that time. While the CO was no doubt sincere in his belief that
the employee was installing plastic, I note that he first visited the site on January 7, 1999, that his
main focus was on the fall hazards to which employees of the subcontractor were exposed, and that
he was simply not as familiar with the work on the project as were Respondent’s witnesses. (Tr. 8;
19-20; 37; 44-47). I also note that the Secretary did not put the CO back on the stand after Jenkens
and Nelson testified, which further persuades me of Respondent’s position. In view of the evidence
of record, I conclude the CO was mistaken in his belief that the employee was one of Respondent’s
laborers and that that individual was employed by one of the subcontractors at the site. The Secretary
has failed to meet her burden of proof in this case, and the citation is accordingly VACATED.
So ORDERED.

                                                     Irving Sommer
                                                     Chief Judge

Date: