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An Occupational Safety and Health Review Commission judge vacated three citations levied against an electric company after finding that the company did have an adequate fall protection program in place.
In Secretary of Labor v. Bergelectric Corp., an administrative law judge held in a final decision of the commission released Friday that Bergelectric Corp. did not have constructive knowledge that a worker was not wearing his fall protection on the day of his injury, but did affirm a citation and penalty for failure to adequately log the injury.
An employee of Carlsbad, California-based Bergelectric was installing an electrical system during a renovation of the San Manuel Casino in Highland, California when he fell 24 feet while working on a ceiling conduit, resulting in broken ribs and fractures to his spine.
Typically during construction, the electrical wiring would have been installed prior to the ceiling installation. However, because the electric work was behind schedule, the Bergelectric employee was required to work in the space above the drywall ceiling. The company developed an activity hazard analysis to address the specific hazards its employees would encounter during this installation, along with detailed instructions on fall protection usage and required safety assessments from a competent person each day before work began.
On April 27, 2017, another employee had a near miss when his foot went through the drywall. However, because he had been properly tied off, he did not drop farther and did not sustain in injury. The following morning a supervisor warned the worker and provided a fall protection refresher to the other employees. The worker’s accident that led to the citations occurred on April 29, 2017.
An investigation by the company found that the man’s lanyard was hanging from a beam and neither attached to the beam strap nor to the back of the man’s harness, and that he and another began work the morning of the incident before they had their safety sign-off.
Because the casino was located on tribal lands, the case was referred from the California Division of Occupational Safety and Health to the U.S. Occupational Safety and Health Administration. The OSHA inspector issued one other-than-serious violation and three serious violations to Bergelectric for lack of fall protection and a fall protection program and a failure to adequately document the injury. Bergelectric appealed the citations and penalties.
An administrative judge of the commission held that the company did not have constructive knowledge of the violation and conducted reasonable diligence. The judge noted that several employees testified that supervisors could not have seen any fall protection violations from the ground level and that Bergelectric provided extensive training, supervision and discipline and could not have foreseen the employee’s disregard for the rules.
The judge held that the company had “a well-documented training regime that was implemented at orientation, at regular intervals thereafter, and in response to any event indicating further training might be required.” Although the OSHA inspector argued that the company failed to exercise reasonable diligence because a safety inspection of the site had not yet occurred on the morning of the incident, but the court held that the company’s process of inspection and the way it was carried out demonstrated “reasonable diligence.”
As a result, the judge vacated all citations relating to fall protection in the case.
However, the commission judge did affirm a citation for $1,630, finding that the company failed to properly detail the April 29, 2017, injury in its OSHA 300 log.
Bergelectric declined to comment on the decision.
The Occupational Safety and Health Review Commission denied a petition to review an order by one of its administrative law judges even though the commission agreed that the judge’s order was erroneous.