Abstract
An industrial painting contractor, specializing in blasting and coating infrastructures, was hired to sandblast and paint an overpass bridge in Lake Saint Louis, Missouri. While working on the bridge, an OSHA compliance officer, who was driving westbound, saw the company's work activities, stopped his car, and took several photographs.
Based upon his observations and conversations with employees, the compliance officer recommended that the contractor be cited for violations of the OSH Act. The Secretary of Labor issued an instant citation alleging four violations.
Although the Secretary withdrew one violation and the Occupational Safety and Health Review Commission (OSHRC) legally voided two other violations, a serious violation of the General Duty Clause was affirmed. A Settlement Agreement was signed between the contractor and the Secretary in regard to this final citation item. The citation was assessed to the contractor for failure to require employees to wear high-visibility clothing or warning vests as part of their personal protective equipment while crossing open traffic lanes on or near a highway.
Question: Why were two violations legally voided by OSHRC?
According to OSHRC, in order to prove a violation of General Duty Clause 5(a)(1), the Secretary must show:
- That a condition or activity in the workplace presented a hazard;
- That the employer or its industry recognized this hazard;
- That the hazard was likely to cause death or serious physical harm; and
- That a feasible and effective means existed to eliminate or materially reduce the hazard.
The first violation — which alleged that the industrial painting contractor did not provide a crash cushion or truck-mounted attenuator vehicle to protect employees in work zones on and near a highway — was voided because the Secretary failed to establish a violation of the General Duty Clause 5(a)(1).
The fourth violation — which alleged a serious violation of Aerial Lift Regulation 1926.453 (b)(2)(v) for allowing employees to work from an aerial lift elevated 18 to 20 feet without wearing a body belt and lanyard attached to the basket — was voided because the Secretary failed to establish that the company had constructive knowledge of the employees' conduct.
Conclusion
According to OSHRC, nothing in the record indicates that a truck-mounted attenuator would have protected the entire worksite and prevented all workers from being struck by a vehicle. The Commission found that the industrial painting contractor did take steps to protect its employees from a recognized hazard.
In regard to the violation of Aerial Lift Regulation 1926.453 (b)(2)(v), OSHRC found that the industrial painting contractor had a work rule requiring employees working in lifts to tie off 100% of the time. This rule was communicated in orientation meetings, refresher training, and weekly toolbox talks. Several crew members spoke English and Spanish and could help Hispanic workers who had trouble understanding any communications. OSHRC determined that the company demonstrated reasonable diligence in discovering and correcting the specific safety hazard.
Full text decision
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