A recent OSH Review Commission case, upholding two “Serious” OSHA violations against an underpinning subcontractor, is instructive both as a reminder of the regulations violated, and for aspects of how the employer handled the matter.
In Secretary v. JPC Group, Inc. the employer was hired to underpin foundation walls of two buildings, 1902 and 1910 Spring Garden Street, located on either side of a construction site in Philadelphia. JPC did a test dig at building 1910, removing enough soil from against the wall to expose a portion of its foundation. This revealed loose stones in the foundation, with no mortar between them. Uncertain that the wall was suitable for underpinning, laborer Claude Enoch approached JPC foreman and designated “competent person,” Jeffrey Nicolai, to request that Nicolai assess the wall’s condition. Nicolai did so and, agreeing with Enoch’s view, referred the matter to JPC project manager Timothy Boyce, an engineer. Boyce told Nicolai to close the test dig area, and to halt all underpinning work until Boyce could evaluate the site.
The following day, JPC performed another test dig attended by Boyce, project engineer Bevan Lawson, and others. This revealed that, due to the deterioration of the mortar, some of the foundation wall’s stone work had collapsed, following efforts to excavate soil from beneath the foundation. Boyce determined that excavation under the wall of building 1910 could not be done without endangering the building’s stability. Underpinning, Boyce determined, would have to be delayed until Lawson could revise the plans. In the meantime, Boyce determined that the walls should be protected by applying Gunite, a waterproofing agent. That process would necessitate removing all of the soil along the sides of each wall, but not from underneath the wall.
Nearly 2 weeks thereafter, a crew made up of laborers Enoch (who had done the first test dig) and Theodore Slater, and backhoe operator Richard Hartley, began preparing the foundation walls for the Gunite application. Hartley first removed all of the soil berm left by the GC to support the walls of building 1902, then moved his backhoe to the rear of building 1910.
As the parties would later stipulate, Hartley began excavating at the rear of building 1910, and worked his way along the wall towards the front of the property. The two laborers then used shovels to remove the remaining soil that Hartley could not remove with the backhoe, before attaching mesh and rebar to the wall. JPC did not use any type of support system, such as shoring, while performing the excavation work.
Hartley had removed the berm along about half the length of the foundation wall of building 1910, when he had to pause because soil in bulk was blocking his way. Enoch and Slater were near the south end of 1910, preparing to place rebar and mesh, when they heard popping sounds. Heeding shouts by a foreman working nearby, both men ran away from the building, and thus avoided being struck as it collapsed.
The Secretary grouped together two related violations, one for performing excavation adjacent to a foundation wall without providing adequate support, and the other for failing to ensure that a “competent person” inspect the work area as needed throughout the shift. A single, $2,500 penalty was assessed. The employer contested the citation, which was upheld by the ALJ at trial. The OSH Review Commission upheld, on appeal, the grouping of the two citation items.1
While reported decisions don’t always tell the entire story, my sense is that the employer in JPC Groupcould have handled this matter more advantageously.
First, either there occurred a grave communications breakdown within the company, or a decision was made to proceed with the soil removal and application of Gunite without adequate supervision, and without adequate instructions to the crew.
Every OSHA citation — this point recurs here often — is largely about your next violation. Although, certainly, you should consider every legitimate defense that may be available, winning today’s battle is seldom the main thing. Citations should be used as an opportunity to improve your company’s safety performance, and your reputation with OSHA (and your workforce) as a conscientious, safety-conscious employer.
Frankly, upon reading the ALJ and Commission decisions in the JPC Group case, I was at a loss to figure out why the employer had not owned up to the violations, paid the modest penalty, and done some in-house training, considering itself lucky indeed that its employees had escaped injury. The “background” elements (status as employer, project in interstate commerce, applicability of the regulations cited, etc.) all were in place. The substantive elements, too, were clearly present, as no support system was in use, and no competent person inspected the work area.
Given the laborers’ testimony that they avoided being struck by the collapsing building only by running away, it was hardly open to the employer to argue that no employees had been exposed to the unsafe condition.
The ALJ easily turned aside JPC’s attempt to argue that its work in connection with the Gunite application had not threatened the stability of the foundation walls. Project manager Boyce’s testimony that he had had “no concerns” about exposing the walls, and that there were no restrictions on uncovering them for waterproofing them was discredited by his admission that he had suggested putting a tieback through the wall, or even pouring another foundation wall. Further, the Compliance Officer testified that Boyce had told him that he was greatly concerned about the wall’s stability, and that the plan had been to uncover the walls in 20’ lengths, apply the rebar, mesh and Gunite, and then replace the soil.
The employer took a weak stab, also, at disputing constructive knowledge, but given that its consulting engineer, project manager, and site foreman had all attended the meeting at which the condition of the wall was discussed, the underpinning put on hold, and a plan formulated to remove the soil berm in 20’ sections, the ALJ easily found that the employer knew, or should have known, of the condition.
The rest of the employer’s defense was chiefly Hartley’s testimony (seconded by the two laborers) that he had not used the backhoe on either building on the day of the collapse. If believed, this testimony would have done little for the employer’s cause, as it was plainly doing excavation work close to an unshored foundation wall. The testimony was not believed, among other things as the employer had stipulated that Hartley had removed the soil berm from building 1910 with his backhoe on the day of the collapse.
Employee safety training should include instructing your workers that OSHA violations will likely occur, and that they are not to misstate facts to OSHA personnel, or at any hearing as may be held. In the JPC Groupcase, the ALJ decision featured prominently a five-paragraph discussion on why the employer’s witnesses (its project manager as well as the three workers) had been disbelieved. Counsel, it would appear, failed to properly prepare the employer’s witnesses — and, if the facts making out the violations are readily established, and the ALJ finds your witnesses unworthy of belief, you’re probably going to lose.
Contesting OSHA citations is expensive. Except, perhaps, where the violation alleged is “Willful,” or the citation includes an uncommonly large number of “Serious” items, the costs of taking a contest through trial (let alone appeal) is likely to be a multiple of the penalty first assessed.
Lawyers like to impress clients with their fighting spirit, but that’s not always called for in the OSHA context. “Scorched earth” is a dubious strategy given, especially, that you will probably be seeing OSHA again in years to come. Contests should be maintained only where there is an honest basis, and a substantial prospect of having the citation vacated.