A recent ALJ case, involving a multi-item citation, underscores some unusual, and some recurring, issues in OSHA compliance and procedure.
The case, Secretary v. ASM-Sanders, Inc., arose out of work being done by a mechanical and HVAC subcontractor at the Warner Robins Air Force Base in Georgia.
Part of ASM’s work involved installing pipe from the access highway to a chill water plant. That pipe had to be installed at a downward angle, below existing utility lines. ASM was using 6-inch PVC pipe, covered with 2 inches of insulation and 2 inches of hard casing.
Two ASM employees, Andre Maldonado and superintendent Greg Arra, were working together with employees of ASM’s sub, Dublin Mechanical ? its owner, Jacky Brown, and his helper, Adam Westberry. ASM had discovered a leak in the recently-installed chill water line, and Arra, accompanied by Maldonado, Brown, and Westberry, was making repairs. Arra used sandpaper to smooth the ends of the pipes to be joined, then treated the sections with solvent and cement. The workers then slid the two sections of pipe together, and left together for lunch.
During their lunch break, Arra told the three other men that he did not want to test the repaired pipe until the following morning, to give the newly-joined section of transition pipe time to cure.
However, shortly after returning from lunch, Brown asked Westberry and Maldonado to help him test the pipe. Brown asked Westberry to pressurize the line to 100 psi, and then got down into the trench to see if the repair had been effective. Maldonado was working outside the trench, and above Brown. Arra was working about 100 feet away, putting bedding into the trench, and was not aware that the line was being pressurized.
As pressure in the line reached about 70 psi, the pipe exploded, and a section of it struck Brown in the head. The force of the explosion knocked Maldonado off his feet. Maldonado called out to Arra, who told him to call 911. The pipe then exploded in a second location, knocking Arra down, as he tried to come to Brown’s aid. Emergency personnel arrived shortly, but Brown was pronounced dead at the scene.
OSHA compliance officer Caliestro Spencer arrived at the site at dusk, and returned the following morning to begin his investigation. Carmine Squatriglia, the safety director for ASM’s parent company, arrived from out of town that same morning. After a brief delay ? the Air Force had secured the accident site as a crime scene ? the site was released to OSHA. Spencer conducted an opening conference in ASM’s trailer, and took witness statements from the workers and AFB personnel. He also inspected, measured, and photographed the trench in which the men had been working.
Spencer charged ASM with three violations. One was under OSHA’s General Duty Clause, § 5(a)(1), which mandates that employers furnish their employees with employment and a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to the employees. This citation item was based on the use of compressed air to test the PVC pipe.
The two additional citation items were for having workers in an unshored trench more than 5 feet deep, and for failing to provide a stairway, ladder, ramp or other safe means of egress from an excavation more than 4 feet deep.
When the matter came on for trial before the ALJ, ASM made, and the judge rejected, a motion to dismiss, based upon the compliance officer’s refusal to permit ASM’s representatives to be present during his (1) interviews of Maldonado, Westberry and others; and (2) inspection of the accident scene.
OSHA’s procedures do not permit management to be present during employee interviews. This is not entirely fair to employers (as hearsay evidence, attributed to unnamed employees, can be received in evidence at the trial, and may even constitute an “admission” by the employer). Nevertheless, these procedures are deemed to be necessary, to protect employees from potential retaliation. Accordingly, ASM’s motion to dismiss was squarely rejected as to that ground.
The other issue ? that ASM’s representatives were excluded from accompanying Spencer during his inspection ?was taken more seriously. While the ALJ disapproved Spencer’s having denied Squatriglia the opportunity to accompany him (and did not credit Spencer’s claim that he had invited Arra to do so) he did not grant the motion to dismiss, because he determined that ASM had failed to show any prejudice flowing from such denial.
Turning to the merits, recall that OSHA’s “General Duty Clause” is violated when (1) a condition or activity presents a hazard; which hazard (2) is recognized by the employer, or by the industry generally, as such and (3) is likely to cause death or serious physical harm; and (4) a feasible and effective means exists to eliminate, or materially reduce, the hazard.
The Secretary contended (and the ALJ agreed) that the elements of a General Duty Clause violation were shown, as employees were exposed to a struck-by hazard when the 8” insulated PVC pipe was filled with compressed air to test for leaks. Ample proof that this posed a hazard of death or serious injury was found from the fact that the pipe exploded, and Brown was killed when struck in the head by a piece of the pipe being tested. A ready means of abatement existed: to use only shatter-resistant materials.
The General Duty Clause citation item was vacated, however, and no penalty assessed, because the ALJ found that ASM had not had actual or constructive notice that pneumatic testing was being conducted on the day in question. Arra had plainly told his crew that he did not want to test the pipe until the following day, Brown (not an employee of ASM) had taken it upon himself to order the testing, and Maldonado had no supervisory authority. It was not foreseeable, the ALJ found, that Brown would disregard Arra’s instructions.
However, the other two items were affirmed, and monetary penalties assessed (although the item as to the depth of the excavation was downgraded from a “Willful” violation to a “Serious” one).
The lessons from the ASM case are as follows.
1 See 29 C.F.R. §1926.652.