By: Thomas H. Welby Published: June 2010

Safety Policy: Subcontractor Wins Trial of OSHA Case Involving Unsafe Floor Hole Cover, Injury

An ALJ recently vacated four “Serious” citation items (and $20,000.00 in penalties) arising from an incident at a Manhattan construction site, in which an employee was hospitalized following a 17-foot fall through a faulty floor hole cover consisting of an unsecured sheet of plywood.

Eurotech Construction Corp. had two subcontracts with Tishman Construction on a high-rise construction project.  One subcontract was for masonry work, and the other was to install and maintain temporary fall protection (perimeter guarding, barriers and floor hole covers) throughout the site.

On the day of the accident, Eurotech was erecting a masonry wall on the 45th floor of the building.  It was working in a location at which another subcontractor, Century Maxim (“Century”), had been working that same day.  At about 1:30 in the afternoon, Roberto Rodriguez fell through a floor hole from the 45th to the 44th floor.  OSHA Compliance Officer Robert Stewart arrived at the scene about two hours later, photographed the plywood sheet he believed to have been the faulty cover, and had an opening conference with Richard Centina (a superintendent for general contractor Tishman) and Gerard Sheridan (a Eurotech foreman).

While the CO did not determine who had installed the faulty hole cover, he concluded that the condition had existed for 3-4 days, during which Eurotech’s employees had been working in the area, and that Eurotech should be held responsible for the condition.
Four “Serious” citations were issued, one each for failing:

  • to do frequent and regular “competent person” inspections of the floor hole cover;
  • to secure from displacement the floor hole cover through which Rodriguez fell;
  • to color-code or to label the floor hole cover “HOLE” or “COVER;” and
  • to re-train employees, when they were unable to recognize that fall protection was required while working near the inade­quately secured floor hole cover.

The employer preserved its rights by filing a timely Notice of Contest, and contested all four citation items, as well as the $20,000.00 in penalties proposed.

CO Stewart, in conducting his investigation, had interviewed (in addition to Centina and Sheridan) two additional Eurotech foremen, Jerome Byrne and John O’Shea.  He appears not to have interviewed Rodriguez, or to have found anyone who claimed to have seen the accident.  It was not disputed that the cover had not been labeled or color-coded, and was not nailed down properly.  Stewart cited Eurotech, based on its employees having been working near the hole cover for several days, but he never ascertained who actually installed the improper cover.  He was the Secretary’s lone witness at trial.

Byrne, Eurotech’s masonry foreman, testified about accompanying Rodriguez to the hospital, that he conducted weekly safety meetings at which fall hazards were discussed, and that other contractors, including Century, had been working on the 45th floor.

Project Manager Brian Murphy testified about the fall protection subcontract, his and foreman O’Shea’s efforts to enlist Tishman’s help in counteracting other subcontractors’ destruction or breach of fall protection installed, and how a marked improvement in reporting came about as a result of Tishman’s making a demand on all subcontractors.  Murphy also testified that he consulted with O’Shea daily, and that Eurotech regularly had 6-7 men walking the floors to inspect fall protection installations as part of their daily routine.

The ALJ found most convincing the testimony of O’Shea, and ruled that knowledge of the violative condition was negated by O’Shea’s testimony of his twice-daily inspections (including on the morning on the day of the occurrence), the plausibility that Eurotech’s employees on a busy day might not have noticed the non-compliant cover, plus the lack of real proof as to how long the unsafe cover had been in place.

While it appeared that a proper cover had been removed and replaced with the unsafe one, the ALJ found that Eurotech’s burden of care did not extend to anticipating the actions of other contractors.  “If a passageway is properly lighted,” the ALJ stated by way of illustration, “a subcontractor does not have to stand around and see that the bulb does not burn out.”

For the foregoing reasons, the ALJ vacated the first three citation items.  It vacated the failure-to-train item, based on Eurotech’s demonstrated regular training, and the Secretary’s failure to show that the improper cover (not shown to have been in place for any length of time) gave Eurotech reason to believe that its employees lacked the understanding and skill to recognize a faulty floor hole cover.

The lessons from the Eurotech case are these.  First, fall protection isn’t just about body harnesses and lanyards, and floor holes are a major and often-underestimated part of the problem.  Always keep in mind that falls are both the biggest single cause of injuries and deaths on construction sites, not to mention the construction hazard most often cited by OSHA.

Second, you (and your employees, especially your field supervisors) need to be familiar with the OSHA standards governing floor holes and floor hole covers.  Among other requirements, the holes have to be covered, the covers must be of the proper size, and properly labeled and secured, and you must conduct (better still, conduct and keep written records of having conducted) regular and frequent “competent person” inspections.

Third, Eurotech is another recent case in which a separate “failure-to-train” item appeared in the citation. Regular safety and OSHA-compliance training must be conducted, and documented.  And, when management learns of more than isolated instances in which employees fail to conscientiously follow the rules, it’s important to re-train.  You want to create a record of having detected a problem; a proactive response; and measures to ensure employee safety and prevent future violations, while making clear to your employees that their safety is a major concern, and non-observance of OSHA standards is unacceptable.

Fourth, whenever you are cited for an OSHA violation, keep in mind that the employer’s actual orconstructive knowledge of the violative condition is a fundamental element of the Secretary’s burden of proof.  The mere existence of a violative condition is not sufficient:  it must be one that the employer (by its supervisory employees) actually knew existed, or could have been discovered by it with the exercise of reasonable diligence.

Finally, while in a recent article I suggested that COs may enjoy a “home field advantage” in OSHA trials where witness credibility is critical, in Eurotech the employers’ witnesses were found to be more credible.

While, to be sure, the CO’s testimony was not squarely at odds with that of the employer’s witnesses, and the ALJ made no finding that the CO had told less than the truth, I think that the CO failed to do a thorough job, and that O’Shea’s experience and demeanor (and the consistency among the witnesses for the employer, each of whom was excluded from the courtroom while his colleagues testified) won the day.

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