Although the foreman pointed to Mr. Ledesma that other contractors on-site were utilizing their own aerial lifts without tie-offs, Mr. Ledesma told him to disregard the contractors’ actions and to be tied-off. The aerial lift was delivered later that day. Mr. Ledesma saw the foreman again the following day at Avadek’s Houston, TX office, where he was gathering tools and had no further interactions with this particular job site or the foreman before the incident on Oct. 21.

After the incident, a third-party, site-safety company conducted an investigation and issued a report that noted apparent contributing factors, which included that the foreman had stood on certain trellis tubes as he unbolted the tubes to re-align, which created an unstable system. Moreover, the fall protection system in use had multiple deficiencies, including that the wire rope, a 3/8’cable, measured 55 feet in length when the fall distance was approximately 25 feet; the 3/8’s cable equipment was improperly anchored and installed. Lastly, the foreman should have not been working on the canopy roof to perform the work but rather should have utilized the aerial boom lift to access the canopy and perform the work.

Following the incident, OSHA was notified and conducted an investigation, which included visiting the site and interviewing certain individuals although none of the interviews were recorded and there appeared to be inconsistencies during the interview process. Nevertheless, OSHA issued citations against Avadek for failing to initiate and maintain accident prevention programs, including frequent and regular inspections by competent persons designated by employers.

Avadek submitted three documents that were consistent with each other—its Site Safety Plan, its Safety Manual, and the Employee Safety Handbook. All these documents discussed safety inspections with regards to fall protection equipment and required regular and frequent inspections whenever conditions change and if hazards were found the Safety Director or a delegate must eliminate them or provide employees with proper protection from them.

Avadek’s Site Safety Plan provided a specific list of instructions for fall protection including that fall protection equipment will be inspected prior to each use, with proper documentation, and in accordance with manufacturer’s guidelines. Manager Ledesma and Avadek’s Safety Coordinator Jorge Longoria testified during the hearing and confirmed that daily inspections of the jobsite would be conducted prior to beginning work given that there could be changes to conditions from the previous day. Moreover, Juan Mata, Avadek’s Safety Coordinator Manger, testified that the competent person on behalf of the company, here the foreman, was responsible to conduct a three-phase inspection consisting of a workplace inspection, a visual inspection and a functional inspection of any equipment.

All of Avadek’s witnesses’ testimony was consistent with its written safety protocols regarding daily inspections and that the foreman was responsible for conducting them as the designated competent person. Avadek further submitted evidence of its periodic safety audit inspections and job hazard analysis inspections. Its employees received fall protection training, including a portion their initial safety orientation, as well as periodic refreshers and specific safety training such as aerial lift training, OSHA 10s and first aid. Avadek also submitted proof of disciplining employees for safety rule violations including for fall protection violations at different jobsites prior to the underlying incident.

Here, based on the submitted evidence and testimony, the Administrative Law Judge found that the Secretary of Labor had not met their burden of proof that the cited safety standards were violated and they were not able to show that the foreman’s actions were foreseeable. The safety standard requires an employer to initiate and maintain a program of frequent and regular inspections that are meant to “keep track of safety hazards at the site” and “to keep abreast of the pace of work.” The evidence submitted showed that Avadek had met its duty to initiate and maintain a safety program with frequent and regular inspections.

The foreman has been designated as a competent person at this site “one who is capable of identifying existing and predictable hazards in the surrounding or working conditions…and has authorization to take prompt corrective measures to eliminate them.” Here, the foreman had authority to recognize hazards to fix them on-site even if he had supervisors above him in the chain of command. The Secretary failed to produce affirmative evidence of the foreman’s action, indicating that Avadek had any knowledge of the violative condition except after the incident itself with receipt of the Incident report.

About the author: Costas Cyprus is an attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.