Bergelectric Corp. was hired to install the electrical system for the San Manuel Casino's renovation in California when an employee was injured on the job. On April 29, 2017, one of the company’s employees fell 24 feet while installing a conduit above the ceiling, causing him to suffer broken ribs and a spinal fracture. The case was referred to the federal Occupational Safety and Health Review Commission (OSHRC), created to review possible violations of the Occupational Safety and Heath Act of 1970 (OSHA) , because the incident took place in a tribal casino located on a reservation under federal jurisdiction. The investigation conducted by a Compliance Safety and Health Officer resulted in the recommendation of several violations targeted at Bergelectric Corp's fall protection program and improper documentation of the fall and injuries.
On the day of the accident, Pete Evans, a foreman of the company discussed with the crew members the scope of the work assignment, safety and fall protection measures, the materials used including plywood decking, and how the conduit would be installed. Evans went into the casino to check on the crews and to answer questions of his lead men. It was at that time the accident occurred and the employee, working on the sound system, fell 24 feet onto the casino floor. It turns out he was not properly outfitted with the required fall protection devices including a beam strap, yo-yo, and harness.
Of the three serious and one not so serious OSHA violations Bergelectric Corp. was charged with, one included the extent of the employer’s knowledge about the accident. OSHRC argued the employer’s foreman should have been aware of violations occurring above the hard lid ceiling because the employees broke fall protection rules for three consecutive days. It added that Bergelectric Corp. failed to provide at the minimum one of the following: clearly defined rules; adequate training, timely and thorough inspections of the workplace; or the implementation of a progressive disciplinary program. Bergelectric Corp. countered it could not have known about the violations committed because they were out of view, the foreman provided frequent and adequate training, and it had a history of enforcement of its safety rules. The hard lid was 24 feet above the floor space and was almost completely obscured from below. The Court agreed with testimony from General Foreman, Rodney Poole, that the cited fall protections could not have been seen from ground level.
The Court also found in favor of Bergelectric Corp on another issue and concluded it provided extensive training, supervision, and discipline. Its training was shown to be thorough with regards to its content, regularity, and utilization of classroom and on-the-job training. The Court noted the employees received frequent training on fall protection. The training included the proper way to attach lanyards, restrictions on the number of lanyards per anchor point, and the removal of one’s lanyard while working at height. This is further supported by the Safety and Health Officer who noted he did not “find any deficiencies noted with the training content.”
Due Diligence Exercised
The Court also found in favor of Bergelectric Corp. regarding OSHA’s argument that it failed to exercise reasonable diligence with respect to the area above the lid. It found reasonable diligence was demonstrated based on the work involved. Bergelectric Corp. provided substantial evidence it had a proper disciplinary program. It provided multiple fall-protection-related Corrective Action Notices (CANs) that it issued prior to the accident. This included written notifications of employee violation of safety rules as well as suspensions for fall protection violations above the hard lid. The Court found Bergelectric Corp. had a thorough and progressive policy and took disciplinary actions according to the requirements of the policy.
Reduction in Penalty Denied
Bergelectric Corp. did not dispute the violation it failed to properly document the full description of its employee’s injury on the OSHA 300 form. The form requires the injury or illness be provided, parts of the body affected, as well as the object or substance causing the injury or illness. Instead of providing this detailed information, it provided a general summary of “multiple injuries” to “multiple body systems.” Bergelectric Corp. requested a 25 percent discount to the proposed penalty for its good faith on having a written safety and health plan that was thorough and consistently enforced. The Court regarded the incorrect log entry equivalent to leaving it blank because it provides a written description of how to correctly document an injury in the log and denied the reduction in penalty.
The Court found that OSHA failed to establish Bergelectric Corp. knew or, with the exercise of reasonable diligence, could have known of the violative conditions. Of the four citations brought by the Occupational Safety and Health Commission, only one was affirmed resulting in a fine of $1,630. There was substantial evidence in Bergelectric Corp.’s favor showing it did take steps to ensure the safety of its employees. This case also demonstrates the importance of having the proper legal team to defend against OSHA alleged violations.
Even when you have done all you can to promote safety in the workplace, it is best to rely on experts to advocate for you. If you find yourself in need of a legal team to address health and safety violations you feel are unwarranted, contact Whitcomb Selinsky Law PC. Call (303) 534-1958 or complete an online contact form.