A recent Administrative Law Judge (ALJ) decision illustrates a number of principles that employers ought to know.
In Secretary v. Tim Graboski Roofing, Inc., a six-man crew was finishing a reroofing job on a two-story residence. One of the six, the son of the crew chief, was mixing cement on the ground. From the roof, the crew chief called down to his son to reposition a metal extension ladder, which the crew had been using to access the roof. No one saw the accident, but the crew members heard the crew chief’s son cry out, and the sound of the ladder falling. Looking over the side of the roof, the crew viewed the crew chief’s son lying on the ground, the fallen ladder beside him. Attempts to resuscitate the son failed, and he was pronounced dead at the hospital.
The occurrence was investigated by the power company and local police, as well as by OSHA. The power company determined that power lines carrying 7.6 kW of current were running parallel to the edge of the roof upon which the extension ladder had been resting. The OSHA Compliance Officer concluded that the extension ladder either came into contact with the energized line closest to the roof, or that electricity arced from the energized line to the metal ladder, resulting in the electrocution of the crew chief’s son.
OSHA issued citations containing four items (three “Serious” and one “Willful”) based on its investigation. The first item was that employees were permitted to work too close to electric power circuits, and were not protected against electric shock by de-energizing and grounding the circuits, or by insulation or other means.
The second item was that the employer had failed to ascertain, before work began, whether any part of an energized electric power circuit was located where the performance of the work could bring any person, tool or machine into physical or electrical contact with it.
Third, the employer was cited for using ladders with conductive siderails, where the employee or the ladder could contact exposed, energized electrical equipment.
Fourth, the employer received a “Willful” citation, because on two days, as the job was winding down, and anchor points for the men’s lanyards were being tiled over, employees on a steep-slope roof worked at a height of 19 feet without fall protection.
The employer contested all of the citation items and proposed penalties, and asserted the affirmative defense of “unpreventable employee misconduct. Following a trial before an ALJ, all four items were affirmed, and penalties totaling $84,000.00 were imposed.
A primary avenue of defense was that the Secretary failed to demonstrate the applicability to the worksite of the items relating to the use of the ladders. This, the employer argued, was because it was not conclusively proved that the employee died as a result of the ladder’s physical or electrical contact with the power lines. Because no one witnessed the accident, the employer maintained, testimony regarding how the decedent supposedly repositioned the ladder, causing it to come into contact with the power lines, was based on “mere speculation.” The employer also argued that it was a failure of proof that the Secretary failed to put into evidence the autopsy report attributing the employee’s death to electrocution. In addition, the ladder had been moved to the street before the OSHA compliance officer arrived at the scene, and the CO found no marks on the ladder indicating that it had come into contact with an energized power line.
This defense was summarily rejected by the ALJ. One principle you should know is that, where there has been a fatality or an injury, the cause of the accident is not necessarily determinative, or even relevant to, whether a standard was violated.
In other words, in the Graboski Roofing case, the Secretary had no need to prove that the decedent was electrocuted because the ladder he was moving made contact with the power lines. All that the Secretary had to show was that the employer had permitted employees to work in such proximity to energized power lines that contact with the lines was possible.
The ALJ found that Graboski had constructive knowledge of the hazard, as the power lines, although partly obscured by trees, would have been “immediately apparent,” had it occurred to the supervisor or crew chief to “simply walk around the structure before work began to look for nearby power lines.”
A second principle to keep in mind, therefore, is that, under OSHA, an employer’s responsibilities include identifying and safeguarding against the primary, obvious hazards peculiar to its trade. As the ALJ in Graboski Roofing observed, for a roofing company, reasonable diligence would include checking for power lines in proximity to the structure being roofed.
In affirming the item alleging the use of the ladder with conductive siderails, the ALJ noted that (1) the conductive character of the ladder was not in dispute; (2) the ladder was resting on the edge of the roof, about 5’ from the nearest energized line; (3) employees using the ladder to access the roof necessarily approached within a like distance of the power line; (4) the power lines were visible; and (5) as the crew chief had used the ladder at that location, and directed his son (the decedent) to move it, the employer’s knowledge of the hazard was undeniable.
Another principle illustrated by this case is that it is wishful thinking to suppose that the “unpreventable employee misconduct” defense can be made out, simply by proof that the employer had a safety program, which included a rule against the cited conduct. This defense requires affirmative proof that the employer (1) had a work rule to prevent the violation; (2) adequately communicated the rule to its employees; (3) took reasonable steps to discover violations; and (4) effectively enforced the rule, generally by penalties increasing in severity upon repetition of the forbidden conduct.
The employer in Graboski Roofing had no rule specifically banning employees from using ladders with conductive siderails when working near energized electrical equipment. Even the more general rules it claimed to have on the subject of keeping ladders away from power lines were unknown to its employees. The defense was, therefore, easily rebuffed.
The fourth and fifth “takeaway” principles from Graboski Roofing are (4) that complying with OSHA most of the time will not do; (5) you should strive to avoid costly “Willful” violations. Graboski’s roofers wore harnesses, and were usually tied off. However, as the tiling work neared completion, the anchor points for the lanyards were covered over, one by one. Typically, at the end of the job (and this was actually embodied in Graboski’s work rules) the concluding tasks were to be performed without fall protection. The employer told OSHA that it was impracticable to enforce fall protection, because its workers preferred to work without it and “were apt to quit.”
The ALJ found that, if that were the reason why workers were exempted from tying off in the last phases of roofing jobs, it demonstrated the employer’s intentional, knowing, and voluntary disregard for the requirements of the OSH Act. If the exemption resulted from an oversight or mistake, the ALJ found, that amounted to plain indifference to employee safety. The employer was found to have committed a “Willful” violation in either case, and the Secretary’s proposed $70,000.00 penalty was affirmed.