Update on final Review Commission decisions in the first quarter of 2021

In Q1 2021, the Commissioners of the Occupational Safety & Health Review Commission released seven final decisions further to Petitions for Discretionary Review. Links to the full text of these decisions are provided in the summaries below.

Ceco Concrete Construction, LLC involved a fall-related fatality in the construction industry. The employer was cited under 29 C.F.R. § 1926.703(a)(1) for "failing to design formwork to withstand vertical and lateral loads from wind gusts." It was also cited under 29 C.F.R. § 1926.703(b)(6) for "failing to properly secure a formwork table's legs and anchor plates to the building's concrete floor." Both violations were affirmed but on different grounds than those relied upon by the Administrative Law Judge (ALJ) who presided over the trial. A single grouped penalty of US$12,675 was assessed.

In FreightCar America, Inc. a worker fell at a railcar manufacturing facility, suffering serious injuries as a result. This resulted in a citation under the general duty clause – s. 5(a)(1) of the Occupational Safety and Health Act based on "employee exposure to a "slip and fall" hazard." The ALJ affirmed the violation and assessed a penalty of US$4,712. However, on review, this decision was reversed and the citation was vacated because the Secretary of Labor had failed to show that FreightCar America, Inc., was properly cited as an "employer" responsible for the alleged violation.

After an employee was electrocuted working in an aerial bucket relocating energized, overhead power lines, MasTec North America, Inc. was cited under 29 C.F.R. § 1926.960(c)(1)(iii)(B), which requires employers to "ensure that no employee approaches or takes any conductive object closer to exposed energized parts than the employer's established minimum approach distance, unless ... [t]he energized part is insulated from the employee and from any other conductive object at a different potential." The ALJ affirmed the violation. However, on review, the Commission vacated the citation, finding that the Secretary of Labor had failed to demonstrate the company's knowledge of the hazardous condition in question.

Schaad Detective Agency, Inc. concerned an armed guard who was shot and killed during an attempted robbery. OSHA issued a serious citation, in which it alleged a violation of the personal protective equipment standard (29 C.F.R. § 1910.132(a)). In particular, OSHA alleged that the cited employer ought to have ensured that its armed guards wore bulletproof vests. The ALJ vacated the citation, finding that the standard did not apply. On review, the Commission agreed, although it arrived at its conclusion for different reasons than those of the ALJ.

In Shelly & Sands, Inc., prior to review, the ALJ had considered a two-item citation alleging repeat fall protection violations with a proposed penalty of US$68,591 for each. Of these, the ALJ affirmed only a violation of 29 C.F.R. § 1926.501(b)(1), which requires guardrail systems, safety net systems, or personal fall arrest systems when employees are exposed to a fall of 6 feet or more. The ALJ had assessed a US$25,000 penalty for this item. On review, the employer admitted that its crew members were not tied off during the incident that led to the citation and it did not dispute that they were exposed to a fall of 17 feet. However, it disputed whether the Secretary had established that it had actual or constructive knowledge of the violative conditions. A majority of the Commissioners agreed with the employer, reversed the ALJ and vacated the citation in question.

In StormForce of Jacksonville, LLC, OSHA alleged a serious violation of 29 C.F.R. § 1926.501(b)(13), which requires certain fall protection measures for employees "engaged in residential construction activities 6 feet (1.8 m) or more above lower levels". The ALJ affirmed the citation and assessed a US$10,210 penalty. On review, the Commissioners reversed and vacated the citation. They found that the evidence did not establish that StormForce had actual knowledge of the violative conditions, nor that it failed in its duty as a controlling employer to prevent or detect such conditions.

Finally, in Tampa Electric Company, the incident under review concerned a release of anhydrous ammonia at a power plant. This had resulted in a two-item serious citation alleging violations of the Hazardous Waste Operations and Emergency Response standard, 29 C.F.R. § 1910.120. On review, only the alleged violation of 29 C.F.R. § 1910.120(q)(3)(iv), and proposed US$9,054 penalty, were in issue. More particularly, it was alleged that employees who responded to the ammonia leak did not wear a "positive pressure self-contained breathing apparatus." The ALJ vacated that item and, on review, so did a majority of the Commissioners, albeit for different reasons. The judge vacated the alleged violation on the ground that the Secretary did not prove that employees were exposed to ammonia above permissible limits. On review, a majority of Commissioners held that the Secretary had failed to establish that the cited standard applied. Of note, they determined that the standard only applies when employees are engaged in an "emergency response," whereas in the case under review, no emergency response was involved because the release "(1) was incidental and controlled … in the immediate release area, and (2) posed no potential safety or health hazard … during the response." As a result, the Secretary failed to show that the release was uncontrolled or unreasonable in the circumstances.