By: Thomas H. Welby Thomas H. Welby Published: August 2006

Safety Policy: Recent Cases from the OSH Review Commission (Part 1 of 2)

Our next two installments will be somewhat in the nature of a “review lesson.” We’ll look at several 2006 decisions of the Commission, as they underscore some of the issues addressed in recent columns here.

The Smoot Construction case is a straightforward reminder of issues and arguments I’ve presented in this space over the past year. A construction employer was cited for three “Serious” OSHA violations, two of them being the failure to fully plank a scaffold (29 C.F.R. § 1926.451(b)(1)), and failing to fully protect the side walls of a trench (29 C.F.R. § 1926.652(a)(1)).

Off the bat, we see that the violations in Smoot Construction relate to Public Enemies Nos. 1 and 2 in construction safety: fall hazards, and insufficiently protected trenches.

Scaffold platforms, of course, are required to be fully planked or decked between the front uprights and the guarded supports, each unit to be installed so that the space between adjacent units, and the space between the platform and uprights, is no more than one inch wide.

There is an exception where the employer can demonstrate that a wider space is necessary (such as to fit around uprights, when side brackets are used to extend the width of the platform).

A further exception is for “platforms used solely as walkways or solely by employees performing scaffold erection or dismantling.”

The OSHA inspector found a 9-1/2” opening in the back of one scaffold on which carpenters were working in a stairwell. He found also a two-foot opening on a scaffold in a second stairwell.

The employer did not dispute that the platform openings existed, but sought refuge in the exception for platforms used for performing scaffold erection or dismantling. The employer acknowledged that its employees were performing form work while standing on the platforms, but argued that they were engaged also in the “fluid process” of erecting a scaffold: the form wall was erected, the scaffold was set, the second panel of the form was added and the scaffold was then raised to the next level.

Both the ALJ and the Commission rejected this argument. The exception, by the clear terms of the regulation, applies only where the platform is used solely to perform scaffold erection or dismantling (or solely as a walkway). I think it was an easy matter for the ALJ and the Commission to conclude that the dual use of the platforms — to do form work in addition to scaffold erection — precluded taking advantage of the exception.

This outcome recalls a remark I made here some months back: in litigating OSHA violations, I try to avoid legal defenses as flimsy as this one. When caught “dead to rights,” generally the client is better served by pursuing a quick settlement (and, perhaps, a reduction in the severity of the violation, or a reduction of the monetary penalties).

Usually, in the absence of fatalities or “willful” violations, OSHA’s monetary penalties are less than the legal fees incurred in contesting violations, and taking them to trial before an ALJ. Generally, in most instances in which it is worthwhile to incur the costs of a contest, it’s due to taking the long view, which takes into account the effect that potential future citations, in combination with the present ones, might have on your company’s eligibility for public work, insurability, and the like.

Putting OSHA to the trouble and expense of litigating a defense without a respectable legal basis (which category includes those that are contrary to the plain language of the regulations) will rarely benefit you in terms of your current citation — the ALJs aren’t stupid — and it can’t ingratiate you with OSHA, the ALJ or the Commission if (when) you have another citation, a year or two from now.

Every lawyer, as you know, wants to appear to be a hard-nosed fighter (and to earn a fee) but keep in mind that an OSHA contest is seldom a one-off affair. You, and your counsel, will likely be seeing OSHA —and possibly even the same ALJ — at some future time. I’m not urging lawyers to forego all legal defenses to OSHA violations as might be difficult or novel, but it’s a good idea to be judicious.

Certainly, you want OSHA to view you as a safety-conscious employer. As OSHA takes seriously its protective mission seriously, it’s in your interest (and your lawyer’s interest) that your lawyer be regarded by OSHA as a professional who is respectful of the agency and regulations, not one who will waste client funds and OSHA’s resources, in litigating issues that have minimal or no support.

The additional, trenching violation in Smoot Construction involved employees of a subcontractors working in a trench 9 feet deep, 8-1/2 feet wide at the top, and 3 feet wide at the bottom in the area in which the employees were working. The dimensions of the trench were not disputed; in unstable Type C soil, the trench would have had to have been 13 or 14 feet wide at the top to be properly sloped.

Smoot’s “defense” on this count was to allege that it had shifted to its subcontractor all responsibility for OSHA compliance for the excavation in question. If you remember my article some months back concerning the “Multi-Employer Rule,” you’ll recall that, where the general contractor could reasonably be expected to prevent or detect and abate the violations by its subcontractor, by reason of its supervisory authority and control over the worksite, it will be held liable for the violation, even if its own employees are not exposed to the hazard(s) in question.

Since Smoot’s subcontract authorized it to correct unsafe conditions created by its subcontractors (and to backcharge them for doing so) and its safety superintendent testified that, if anyone saw a safety infraction by a subcontractor “they come directly to me,” this defense likewise failed.

Having exhorted my readers to show respect for OSHA and its regulations, before closing this installment I should mention the recent case of Roy’s Construction, Inc. In that case, an employer at a jobsite in the U.S. Virgin Islands was issued 3 citations. The employer filed its notice of contest outside the 15 working day period specified by the Act, and sought relief from final judgment under a provision of the Federal Rules of Civil Procedure. The Chief Administrative Law Judge granted the employer’s request for relief, and ordered the Secretary of Labor to file a complaint within 20 days.

The Secretary, however, took the position that the Chief ALJ’s decision was clearly erroneous, and refused to file her complaint, arguing that such refusal was required, to preserve the right to appeal.

Under 29 C.F.R. § 2200.101(a), when a party fails to proceed “as provided by [the Commission’s] rules or as required by the Commission or Judge, he may be declared to be in default either on the initiative of the Commission or Judge,” after being afforded an opportunity to show cause why he should not be held in default. By refusing to file her complaint, the Secretary in Roy’s Construction failed to comply with rules of the Commission, and the ALJ’s order.

This, the Commission found, had left the ALJ with only two choices: he could “bend to the will of the Secretary” and dismiss the employer’s notice of contest, or vacate OSHA’S citations against the employer. The ALJ chose the latter option, dismissed the OSHA citations, and the Commission on appeal upheld him, finding that the sanction of dismissal — against the government! — was not an abuse of discretion.

It’s a fundamental rule of law concerning administrative agencies such as OSHA that courts will give not uncritical, but nevertheless substantial, deference to the agency, as it is presumed to be highly knowledgeable in interpreting the regulations it is charged by law to enforce. The playing field, therefore, is not — and it’s not supposed to be — altogether level, on substantive regulatory matters.

As to the fairness of OSHA’S procedures, however, while no doubt bad decisions come down from time to time, the employer, litigating against a government agency, should not consider that it’s confronting a stacked deck. In Roy’s Construction, certainly, and probably in the great majority of cases before the ALJs, the government, no less than private employers, is required to show respect for the system Congress created, and to observe the procedural rules.

While no one, and no dispute resolution system, is without flaw, in nearly every case, whatever the outcome, it’s a fair expectation that the respect and the reasonableness I urge my clients to observe will be experienced as a two-way obligation.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

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