Commission decision summaries

In Q2 2022, the Commissioners of the Occupational Safety and Health Review Commission (OSHRC) released two remand orders and four final decisions further to a Petition for Discretionary Review. Links to the full text of these decisions are provided in the summaries below.

Remand orders

Secretary of Labor v. A-1 Sewer and Water Contractors, Inc. concerned procedural errors relating to motion practice in the course of Simplified Proceedings.

OSHA issued the employer a serious citation alleging a violation of 29 C.F.R. § 1926.652(a)(1), which requires that each employee in an excavation be protected from cave-ins by an adequate protective system, and proposed a penalty of $1,990. The case was assigned for Simplified Proceedings and the employer proceeded pro se. After the Administrative Law Judge (ALJ) scheduled a merits hearing, the Secretary of Labor filed a three-in-one motion requesting postponement of the hearing, a remote hearing, and permission to file a motion for summary judgment. The following day, the ALJ granted the request for postponement and the request to file a summary judgment motion, but rejected the request for a remote hearing.

The employer filed a response and amended response to the Secretary's summary judgment motion, both opposing the motion and requesting a hearing. Despite this opposition, the ALJ issued a decision and order granting the Secretary's motion for summary judgment, affirming the citation as alleged and the $1,990 proposed penalty.

The Commissioners found multiple procedural errors that warranted vacating the ALJ's decision.

• In its initial motion, the Secretary failed to observe Commission Rule 40(d), 29 C.F.R. § 2200.40(d) requiring a moving party to confer with the other party and to state in its motion the efforts made to confer and whether the other party opposes the motion. The Secretary was silent on communications with the employer regarding the employer's position on the motion.
• Commission Rule 205(b) states limited, if any, motion practice is contemplated in Simplified Proceedings. The Secretary offered no explanation as to why a motion for summary judgment would be appropriate.
• The ALJ erred by ruling on the Secretary's three-in-one motion without providing the employer an opportunity to respond. Commission Rule 40(h) require a response within 14 days, but the ALJ ruled the day after the Secretary's motion was filed.
• Despite the fact that "limited, if any" motion practice is contemplated in Simplified Proceedings, the ALJ provided no explanation for granting the Secretary's request to file a motion for summary judgment.

Given these procedural errors, the Commissioners concluded the pro se employer was deprived of the opportunity to be fully heard before the motion for summary judgment was filed. The Commissioners vacated the ALJ's decision and directed a hearing on the merits of the case.

In Secretary of Labour v. New River Electrical Corporation the Commission remanded the case back to the ALJ following an order of the United States Court of Appeals for the Fourth Circuit. This case involved an injury suffered by an employee when he picked up a live electrical wire at a job site. OSHA investigated, determined the employer had committed three serious violations of applicable safety standards, and proposed a penalty of $38,802. The ALJ grouped the three items under the citation and affirmed them as one citation-item, assessing a total penalty of $12,934. The Commission declined to review and the order became final. The employer sought review.

The Fourth Circuit found reversible error related to the Secretary's burden of proof. Before the ALJ, the Secretary had alleged that the employer had constructive knowledge of the violations, citing a failure to create a grounding plan and failure to conduct a proper risk assessment before beginning work. In turn, the employer raised unpreventable employee misconduct as a defense.

In his decision, the ALJ relied almost entirely on the inadequacies of the employer's safety program as proof of its purported constructive knowledge. In doing so, the ALJ essentially relieved the Secretary of proving its prima facie case in relation to the lack of a grounding plan and risk assessment. This focus on the employer's defense rather than the Secretary's burden to establish its case cast doubt on whether the ALJ would have found the arguments advanced by the Secretary sufficient to prove constructive knowledge standing alone.

The Fourth Circuit reversed the ALJ's decision and remanded the case to the Commission. The Commissioners, in turn, remanded the case to the ALJ for further proceedings consistent with the Court's opinion.

Final orders

Secretary of Labor v. AJM Packaging Corporation was a lockout/tagout (LOTO) case involving an amputation injury suffered by an employee while clearing a paper jam in one of the employer's machines. OSHA inspected the facility and issued a one-item, four-instance repeat citation alleging a violation of a provision of the LOTO standard, 29 C.F.R. § 1910.147(c)(4)(i). Following a hearing, the ALJ vacated the citation in its entirety. On review, only one instance was at issue. The Commissioners affirmed the ALJ's decision and vacated the instance on review.

The employer's facility produces paper products using "Peerless Cutting Machines" (PCMs) operated by employees who perform adjustments, clear jams, and ensure that the machines operate correctly. The PCMs have a scrap chute that can become jammed with paper. The scrap chutes weigh approximately 30 pounds and normally rest under their own gravity. One method of clearing a jam, which was explicitly prohibited by the employer, is to lift the chute. When the chute is lifted, it can be balanced in place but there is no means to secure it in position. The injury in this case occurred when an employee attempted to clear a jam by elevating the chute and reaching inside. The chute fell from its elevated position, pinching the employee's finger and partially amputating it.

The LOTO standard addresses the servicing of machines and equipment in which unexpected energization, start up or release of stored energy could injure an employee. 29 C.F.R. § 1910.147(c)(4)(i) requires an employer to develop, document and utilize procedures for control of potentially hazardous energy when employees are engaged in related activities. The instance under review alleged that lockout procedures were not utilized and lockout devices were not affixed by an authorized employee performing a task such as clearing jams on PCMs.

The ALJ found that gravitational energy accumulates when the PCM's scrap chute is raised to clear a paper jam, which is a servicing activity, and therefore must be controlled by a physical block to prevent unexpected falling and injury to an employee. The employer argued that the LOTO standard cannot apply because the scrap chute is normally not elevated, and does not require energy to keep it at rest. It does not acquire energy unless elevated, which is not part of its normal function. The ALJ, and in turn the Commissioners, rejected this argument. The LOTO standard requires the employer to control energy throughout servicing and maintenance activity, and not only before the activity begins. The Commissioners held the LOTO standard applied in this case.

However, the ALJ found, and the Commissioners agreed, that the employer did not have "constructive knowledge" of the need for a control of the gravitational energy involved in clearing the scrap chute. The record lacked sufficient evidence to establish the employer should have known of the employee practice of elevating the scrap chute to clear it.

The employer had previously introduced and trained employees on a strict rule against raising the scrap chute to clear a jam. Even though the rule was not intended to protect adjusters from the gravitational energy present in the raised scrap chute, it was adequate because compliance with the rule would have the unintended ancillary effect of preventing accumulation of the energy. The employer's rule reflects the § 1910.147(c)(4)(i) requirements because it prohibits employees from engaging in the activity that triggers the requirement for LOTO procedures. It would be illogical for the employer to establish LOTO procedures for a prohibited activity.

The Commissioners also found the secretary failed to prove that:

• The employer's efforts to implement and communicate the rule were deficient. Employees, including the injured employee, testified they were aware of the rule.
• The employer's supervision of employees was inadequate. There was insufficient evidence that the practice of chute-lifting should have been apparent to supervisors.
• The employer should have anticipated hazards involved with raising the scrap chute. There was insufficient evidence that chute-lifting was necessary or prevalent in employee work.
• The employer's disciplinary program was ineffective or inadequate. The employer's extensive documentation of disciplinary actions supported the opposite conclusion.

The Commissioners vacated the single instance on review.

Secretary of Labor v. Midwest Equipment Company involved a serious injury to an employee sustained when a jib that he was helping to install on a crane fell and crushed him. OSHA issued a serious citation – consisting of two items, each with two sub-items – alleging violations of four provisions of the Cranes and Derricks in Construction standard, 29 C.F.R. § 1926, Subpart CC. The Administrative Law Judge affirmed the citation in its entirety and assessed the total proposed penalty of $15,912.

At issue on review was whether the ALJ erred in finding the Secretary proved non-compliance for each of the sub-items in the citation. The Commissioners confirmed non-compliance on three of the four sub-items, and vacated the fourth.

Item 1a involved violations of 29 C.F.R. § 1926.1403(a), which requires an employer to comply with manufacturer procedures applicable to assembly and disassembly of equipment (or attachments). There were two such violations. For the first, the relevant manufacturer's instructions required use of "a lifting strap…or similar device" to stabilize the jib. Though the employer conceded that the Secretary provided evidence that it failed to use a lifting strap as required by manufacturer instructions, it claimed:

• The absence of a lifting strap played no role in the incident; and
• It used a "similar device" by instructing an employee to attach a tag to the jib to keep it from swinging.

On the first argument, the Commissioners noted a finding of noncompliance is not dependent on how the incident precipitating OSHA investigation occurred. Since the lifting strap was not used, this argument failed. On the second argument, the Commissioners confirmed the ALJ's finding that the manufacturer instructions required attachment of a "similar device" to both the jib and the superstructure, and the employer's method involved attachment only to the jib.

The second violation of 29 C.F.R. § 1926.1403(a) involved a manufacturer's instruction that a pivot pin be in place until the base section of the jib is secured. The employer submitted that the ALJ erred in finding its assembly/disassembly (A/D) director lacked credibility and in failing to place weight on his testimony that he had checked the pivot pin and it was in place before the incident. The Commissioners held that the ALJ's credibility assessment was not only well-supported by her observations of the assembly director's demeanor, it was consistent with the undisputed fact that the pivot pin was not engaged at the time of the incident. The Commissioners affirmed item 1a based on both incidents of failing to follow manufacturer's instructions.

Item 1b involved violation of 29 C.F.R. § 1926.1403(a), which requires that the A/D director must understand the applicable assembly/disassembly procedures. The ALJ found the employer's A/D director did not understand the lifting strap requirement based on his non-compliant use of a tag line to serve a similar purpose. The Commissioners disagreed with this finding. The A/D director's testimony demonstrated that he understood the lift strap requirement, but chose to disregard it and use a tag line instead. The Commissioners vacated item 1b.

Item 2a involved violation of 29 C.F.R. § 1926.1404(d)(1), which requires the A/D director ensure that crew members understand the hazards associated with their tasks before commencing assembly/disassembly operations. At issue was whether the employer failed to ensure crew members understood hazards associated with "mounting the jib onto the main boom", in particular those related to the lifting strap and the pivot pin requirements. The ALJ found the A/D director failed to discuss these hazards with the crew, the plan formulated for the site failed to address specific hazards, and no instructions were given regarding use of the tag line.

The employer argued that:

• The ALJ reversed the applicable burden of proof by requiring it to establish that the crew understood their tasks and associated hazards; and
• The record showed the A/D director reviewed the tasks and hazards with the crew.

The Commissioners rejected both arguments. The ALJ fully outlined the evidence relied upon to prove failure to instruct. Balancing that evidence with the absence of evidence provided by the employer was not a reversal of the burden of proof. The Commissioners also observed that none of the testimony from employees involved in the incident demonstrated that they were informed of the hazards identified in the citation. The Commissioners therefore affirmed item 2a.

Item 2b involved violation of 29 C.F.R. § 1926.1400(f), which requires employers to establish, effectively communicate, and enforce work rules to ensure compliance with standards applicable to actions required of operators, crewmembers or other employees. The ALJ noted that the only rules in place were those set out in manufacturer instructions and on the crane's safety decals, and these were not effectively communicated to the employee who was injured in the incident. The Commissioners agreed with this finding, and affirmed item 2b.

The ALJ assessed grouped penalties of $9,282 for items 1a and 1b, and $6,630 for items 2a and 2b. The employer did not challenge these penalty amounts. The Commissioners held that while they would normally assess these same penalties, given that they vacated item 1b, reduction in the penalty assessed for the violation affirmed under 1a was appropriate. Taking into account the gravity of the violation under 1a, the Commissioners revised penalty for item 1a to $6,188.

Secretary of Labor v. Summit Contracting Group, Inc. is a fall protection case. OSHA inspected a multi-family housing project in Florida and issued a citation alleging a serious violation of 29 C.F.R. § 1926.501(b)(13), which relates to fall protection measures required for employees engaged in residential construction activities 6 feet (1.8 m) or more above lower levels. The ALJ affirmed the citation and assessed the proposed penalty of $11,640. The Commissioners reversed the decision and vacated the citation on review.

The employers at the worksite in this case were:

• Summit, the general contractor.
• Gunner Houston, Ltd., the framing contractor.
• Three framing subcontractors working under Gunner Houston who did not have direct contractual relationships with Summit.

An OSHA compliance officer inspected the worksite and observed employees from all three subcontractors working without required fall protection. OSHA issued to Summit a one-item citation under the Secretary's Multi-Employer Citation Policy, alleging that Summit was a "controlling employer" liable for the framing subcontractors' failure to use fall protection.

While there was no dispute that Summit employees had no actual knowledge of subcontractor failure to use fall protection, the ALJ found it had constructive knowledge of the violations. With the reasonable exercise of diligence, Summit's superintendents could have uncovered the violations because they were in "plain view". The ALJ found Summit's worksite inspections were inadequate, especially in light of the company's awareness that fall protection violations had previously occurred on the project.

Summit challenged two aspects of the ALJ's decision on review. Summit first argued that the Multi-Employer Citation Policy, and Commission precedent interpreting that policy, were invalid in the Eleventh Circuit, where this case arose. The Commissioners rejected this argument. While the Commission generally applies the precedent of the particular circuit to which the decision may be appealed, it had concluded in prior cases that the Eleventh Circuit has neither decided nor directly addressed the issue of multi-employer liability. The Commissioners applied a similar approach to this case.

Summit also argued that although it was the controlling employer at the worksite, the ALJ erred in finding that it had constructive knowledge of the subcontractors' fall protection violations. The Commissioners agreed with Summit on this point, finding that the record fell short of establishing that Summit had failed to exercise reasonable diligence:

• The record showed the violative conditions existed for only 10 to 15 minutes. To detect these violations would require continuous monitoring, which is not a requirement.
• It was not clear at the time of the inspection that Summit supervisors were in a position to observe the violations.
• There was insufficient evidence to establish Summit's monitoring was inadequate. The record showed the Summit official charged with supervising framing activities at the worksite was not called to testify.
• Additional Summit supervisors and a safety consultant testified that it was their practice to conduct walkaround inspections and correct safety violations.
• To supplement its own efforts, Summit relied on Gunner Houston and the subcontractors to ensure safety of their employees. Nothing in the record showed this was unreasonable.
• Despite reports of prior incidents of framers working without fall protection at the worksite, there was no evidence of the measures Gunner Houston and the subcontractors took to address these violations. Since Summit's safety role at the worksite was secondary to that of the contractor and subcontractors, the limited evidence did not support a finding of inadequacy in Summit's inspection practices.

The Commissioners reversed the ALJ's decision and vacated the citation.

Secretary of Labor v. TNT Crane & Rigging, Inc. involved an employee suffering serious injuries when part of a crane being disassembled by the employer contacted a power line. OSHA conducted an inspection and issued the employer a serious citation alleging two violations of the Cranes and Derricks in Construction Standard, 29 C.F.R. § 1926.1400, with a proposed penalty of $24,942.

The incident involved disassembly of a crane by four employees. As part of the work, the crane operator had to lower the boom so that the boom's extensions could be removed. As the boom was lowered, an employee acting as a spotter/rigger (SR) held a metal connector at the end of a load line so that the load line would stay taut during the boom's descent. As the boom was lowered, the load line contacted a power line, electrocuting the SR. The SR was hospitalized with severe burns and other serious injuries.

Following issuance of the citation:

• The ALJ vacated both citation items on the grounds that the cited provisions did not apply to the disassembly work being performed.
• The Commission reversed the ALJ's findings, finding the cited standards were applicable, and remanded for the ALJ to address the remaining issues in the case.
• On remand, the ALJ again vacated both citation items, finding that the Secretary failed to establish the employer had knowledge of the alleged violative conditions.
• On review, the Commissioners again reversed the ALJ's decision and affirmed both citation items.

At bottom, the issue was whether the ALJ erred in finding the Secretary failed to establish that the employer had constructive knowledge of the violative conditions. Specifically, the ALJ found the crane operator was the employer's supervisor at the worksite and the alleged violative conditions stemmed solely from his misconduct. As a result, the Secretary had to first establish that the supervisor's misconduct was foreseeable before the supervisor's knowledge of his own misconduct could be imputed to the employer. The ALJ held that the Secretary failed to show the employer's safety policies, training program, or audit and disciplinary program were deficient, and therefore the supervisor's misconduct was not foreseeable.

On review, the Secretary argued that the all of the crew members were engaged in the violative conduct at issue under each citation item and, therefore, it was the supervisor's actual knowledge of the entire crew's misconduct that should be imputed to the employer. The Commissioners agreed.

With respect to the first item in the citation, there was no dispute the crew disassembled the crane without a required protective measure in place to prevent encroachment. It was not the supervisor's plan for the work or his operation of the crane that was the violative condition. The cited standard requires the encroachment prevention measure to be in place before disassembly begins. Once the crew collectively began their work without the prevention measure the violative conduct occurred.

With respect to the second item in the citation, the crew's collective failure to maintain the required clearance from the power line during the disassembly, there was evidence that the decision regarding the positioning of the work was a collective effort and not limited to the supervisor's operation of the crane.

Both alleged violations rested on the collective work of the entire crew. As a result, the supervisor's knowledge of the other crew members' conduct was imputed to the employer without a showing of foreseeability. The Commissioners concluded the Secretary met the burden of proving knowledge and thus all the necessary elements of both violations.

The employer argued further that both violations were the result of unpreventable employee misconduct. The Commissioners held the employer failed to prove this defense because:

• Its policies did not sufficiently address the requirements of 29 C.F.R. § 1926.1407(b)(3), which detail required encroachment prevention measures during work near an electrical hazard; and
• It did not sufficiently monitor or enforce its rules related to 29 C.F.R. § 1926.1407(d), which sets limits on approach distances to electrical hazards.

The Commissioners reversed the ALJ's decisions, affirming both items in the citation and assessing the $24,942 total proposed penalty.