United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

|                            |                          |
|----------------------------|--------------------------|
| SECRETARY OF LABOR,        |                          |
| Complainant,               |                          |
| v.                         | OSHRC Docket No. 19-1736 |
| SKYLINE RESTORATION, INC., |                          |
| Respondent.                |                          |

DECISIONANDORDER

APPEARANCES:

For the Complainant:

AndrewKaronis, Esq.

B. Carina De La Paz, Esq.

Office of the Solicitor

U.S. Department of Labor

New York, New York

For the Respondent:

Michael Rubin, Esq.

Stefan Borovina, Esq.

Goldberg Segalla, LLP

Buffalo, New York

BEFORE:Administrative Law Judge William S. Coleman

INTRODUCTION

On April 10, 2019, in Brooklyn, New York,an employeeofa subcontractornamed Jaen Restoration Corp (Jaen) fell to his deathfromtheflatroofofa twelve-story building.The general contractor for the project wasthe Respondent,Skyline Restoration, Inc. (Skyline).

Skyline had subcontractedtoJaenthe entire scope of work that was specified initsgeneral contract. That scope of work entailed performingmasonry and waterproofing repairsonand aroundthe building’s rooftop water tower. On the day of the fatal fall, the decedent was one oftwo Jaen employees working on the project. No Skyline employees were present at the time of the fall.

The Occupational Safety and Health Administration (OSHA) conductedan inspection and investigationinto the work-related fatalityand ultimately issued separate citationstoboth Skyline and Jaen. The separate citations averred that each company had violated the same OSHA standards in precisely the same manners. The Secretary’s theory in issuing nearly identical citationstoeachcompanywas that Skyline was responsible for the violations as the “controlling” employer at the multi-employer construction site,andthatJaen was responsibleforthe sameviolationsas the “exposing” or “creating” employer. (T. 188).

Both companies formally contested their respective citations. Jaen resolved its contest within about five months thereafter by entering into a formal settlement agreement in which Jaen accepted all seven alleged violations (OSHRCDocket No.19-1796).

The citation issued toSkyline(justlike the citationthat had beenissued to Jaen)alleges thatSkylineviolatedthe followingOSHAstandards: one violation of the accident prevention responsibilitiesin constructionworkplacesstandard (29 C.F.R.§1926.20(b)(2));three violations of the fall protection in constructionworkplacesstandard (§§1926.501(b)(1)& (b)(3);§ 1926.502(d)(6)(i));andthreeviolations of the hazardcommunicationstandard(HCS)(§1910.1200, as applicable to construction workplaces by § 1926.59).Allsevenviolationswereclassified as “serious”violations, and one of thethreeallegedHCSviolationswas allegedalsotohaveconstituteda“repeated”violation.

The undersigned conducted an evidentiaryhearingon Skyline’s contestutilizingvideoconferencetechnologyonMay 24–26, 2021.Post-hearingbriefing was completed onAugust 20, 2021.

The following witnessestestifiedinthe Secretary’scase-in-chief:

·Mr. Zhao-Hong Huang—the OSHA compliance safety and health officer (CO)whoconductedOSHA’s inspection and investigation.

·Ms. Janaina Siguencia—aformerspecial investigator with the New YorkCityDepartment of Investigations(DOI),whohad providedSpanish-Englishtranslation servicesduring investigativeinterviews ofaJaen employee(JorgeAucanshala)andaSkyline employee(Jose Sanchez).

·Mr. Julio Rueda—Skyline’s project manager.

Thetwo individualsfor whomSpecial InvestigatorSiguenciatranslated in the investigative interviews(JorgeAucanshalaandJoseSanchez) had been identifiedby the Secretaryas witnesses that the Secretary might call to testify. Skylinealsoidentified Sanchez(but notAucanshala)as apossibletrialwitnessfor its case-in-chief. (Jt.Preh’rgStmt.6, May 10, 2021).

The Secretaryattempted tosecure the presence ofMr.Aucanshala(a/k/a Jorge Arellano)to testify at the hearing. An attorney for theSecretary succeeded in making telephone contact withAucanshalaprior to the hearing, butAucanshalarefused todisclosewhere he could be located, and so the Secretarylacked sufficient informationto servehimwith a subpoena. (T. 161). (The Secretarydid notrequest anadjournmentof the hearingtoallowfurther effortsto compelAucanshalato testify.)

Mr. Sanchez, whose testimony both parties had intended to present in their respective cases-in-chief,had beenSkyline’sproject superintendent/supervisorfor the project, butby the time of the hearing he was no longer in Skyline’s employ.(Jt.Prehr’gStmt. 6; T. 406-07).Neither the Secretary nor Skyline indicated whether Mr. Sanchez had been served with ahearingsubpoena, buton the day Sanchez had been expected to testify,the attorney for Skylinereportedthat “[w]edid believe[Sanchez would]be testifying today,but hehas advisedSkyline he cannot testify todayand won't testifytoday,” and so“we will not be proceeding with Mr. Sanchez.”1 (T. 406-07).NeitherSkyline nor the Secretaryrequested an adjournmenttoundertake efforts tocompel Mr. Sanchez to appear and testify.2

Skyline presented the testimonyof two witnessesinits case-in-chief. Both witnesseswere employees of acompany called Andromeda Advantage, Inc. (Andromeda), whichSkylinehasdescribedasanaffiliated company, although the nature of the affiliation is not of record. (T.326-27, 351-52). The twoAndromeda employeeswhotestifiedwereDanielWilenchik, Esquire,who is an in-houseattorneyforAndromeda, andMs. Patricia Perez,who isAndromeda’sSeniorRiskManager.(T.393).

Theprincipal issuesfor decisionare:

·Did Skyline have the status of“controlling employer”over themulti-employer constructionworksite?

Decision: Yes.

·Was the evidence preponderant thatthe subcontractorhadnot complied withthecited standards?

Decision: Apreponderance of the evidenceestablished thatthe subcontractorhadnot complied withfour of the sevencited standards.

·Was the evidence preponderantthat Skyline failed to take reasonable measures to prevent, or to detect and abate,thesubcontractor’sprovenfailures to comply withcited standards,so that Skyline wasliable for those violations as the controlling employer?

Decision: Yes.

·Did the Secretary prove by a preponderance of the evidence that Skylineis responsiblefor theHCSviolationsas a “creating employer”?

Decision: Yes.

As described below,fourof the sevenalleged violationsare affirmed,andpenalties totaling$25,194are assessed.

FINDINGS OF FACT

Except where the following numbered paragraphs expressly state thatthere was noevidence respecting a matter of fact, the following facts were established by at least a preponderance of the evidence:

1.SkylineRestoration, Inc. (Skyline)is aNew Yorkcorporationthatmaintains its offices in Long Island City, New York.(Answer ¶2).Skyline is a general contractorthatspecializesin exterior façade restoration,such asmasonry, waterproofing and roofing work. (T. 25556). Skyline has approximately 40to50 employees. (T.283-84,328; Ex. J-11).

2.Skyline’sconstructionprojectsmostlyarise fromgeneralcontractsthat it makes withbuilding ownersandbuildingmanagement companies. (T. 257).

3.Skyline’semployees do not perform any trade labor construction work in the performance of its general contracts,andnone of its employees are employed as skilled labor. Skyline’scorporatemodelis tosubcontracttheentire scope ofworkspecified in its general contracts.(T. 257-58, 303, 364; Ex. J-11). 

4.Aftermaking ageneral contract,Skylineassigns an employee to serve as the “project manager”andassigns other employees,who are subordinate totheproject manager,to serve as“projectsupervisors”(also referred to as“project superintendents”or“supers”)toadministertheproject. (T. 256-58, 272-75, 28384, 303-04, 353; Ex. J-11).

5.In March 2019,Skylinemadea general contracttoperform certain masonry and roofing repair onand around therooftopwater tower ona12-story building in Brooklyn, New York (worksite)foracontractsum of$4,400. (T. 10-11, 40-41;Ex. J-14). Therooftop was about130 feetabovegroundlevel. (T.124;Ex. J-14, p. 2).

6.One ofthe water tower’sfourbrick-veneer supportingcolumns (also referred to as“piers”)was thefocus of the repairwork. The general contract specified the repairs as follows(Ex. J-14):

·Remove and replace 20 square feet ofthe column’sbrick façade(representing$1,200of the contract sum)

·Remove andrepoint another 20 square feet of brick mortar joints(representing$200of the contract sum)

·Installwaterproofing membraneat steel penetrations into thecolumnand the water tank’s drain valve(representing$1,800of the contract sum)

·Caulkutility boxes anchored to thecolumn(representing $200 of the contract sum)

·Waterproofair conditionertubing (representing$1,000of the contract sum)

7.On April 1,3SkylinesubcontractedwithJaen RestorationCorp.(Jaen)forJaen toperform theentire scope ofworkspecified initsgeneral contractfora subcontract sum of $1,800.(Ex. R-3 at 13).

8.Jaen does not employ any supervisory employees. The only individual at Jaen with managerial or supervisory authority is Jaen’s owner and sole officer. Jaen’s owner is marriedtoSkyline’s vice president. (T. 14-15, 106-07, 396-97).

9.Skyline was familiar with Jaen becausebeginning in 2016 or 2017Jaenhad been a subcontractor for Skyline on multiple prior projectsthat had involvedfaçade restoration, masonry, and waterproofingwork. (T. 260-61).By virtue of these prior subcontracts with Jaen, Skyline had learned, or reasonably should have learned, that Jaen does not have any employees who act in the role of foreman or supervisor atJaen’sworksites. (T. 315).

10.Skyline expected thatJaenwouldcomplete the project in two days. (T. 104;Resp’tBr. 3). 

11.Skyline expectedthatits supervisorswouldmanage the Jaen employees and assign them the work on the project. (T. 107). 

12.Skyline and Jaen executed a subcontractor agreementusingSkyline’s “standard”subcontract form.(T. 264, 308, 313). The subcontract identified the worksite address anddescribed thesubcontract’sscope of work simply as “Masonry & roofing”and nothing else.Pertinent provisions ofthesubcontractincluded the following(bold typefacein original):

ARTICLE 3CONTRACTOR

§3.1 SERVICES PROVIDED BY THE CONTRACTOR

§3.1.1The Contractor[Skyline]shall cooperate with the Subcontractor[Jaen]in scheduling and performing[Skyline's]Work....As soon as practicable after execution of this Agreement,[Skyline]shall provide[Jaen]copies of[Skyline’s]construction schedule and schedule of submittals, together with such additional scheduling details as will enable[Jaen]to plan andperform[Jaen’s]Work properly... .

* * *

§3.1.3Exceptas provided in Article 14,[Skyline’s] equipmentwill be available to[Jaen]only at[Skyline’s]discretion andon mutually satisfactory terms.

§3.2 COMMUNICATIONS

* * *

§ 3.2.3If hazardous substancesof a type of which an employer is required by law to notify its employees are being used on the site by[Skyline], a subcontractor or anyone directly or indirectly employed by them (other than[Jaen]),[Skyline]shall, prior toharmful exposure of[Jaen’s]employees to such substance, give written notice of the chemical composition thereof to[Jaen]in sufficient detail and time to permit[Jaen's]compliance with such laws.

§ 3.3 CLAIMS BY THE CONTRACTOR

* * *

§ 3.3.2[Skyline's]claims for services or materials provided[to Jaen]shall require: two (2) days' prior written notice except in anemergency;written compilations to[Jaen]of services and materials provided and charges for such services and materials no later thanthe fifteenth day of the following month.

* * *

ARTICLE 4 SUBCONTRACTOR

§4.1 EXECUTION AND PROGRESS OF THE WORK

§ 4.1.1[Jaen]shall supervise and direct[Jaen’s]Work, and shall cooperate with[Skyline]in scheduling andperforming[Jaen’s]Work to avoid conflict, delay in or interference with the Work of[Skyline], other subcontractors or Owner'sown forces.[Jaen]must adhere to the schedule/drop schedule approved by[Skyline], unless otherwise agreed upon.

* * *

§4.3 SAFETY PRECAUTIONS AND PROCEDURES

§4.3.1[Jaen] shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply with safety measures initiated by [Skyline] and with applicable laws, ordinances, rules, regulations and orders of public authorities for the safety of persons and propertyin accordance with the requirements of the Prime Contract. ...

§4.3.2If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by[Jaen],[Jaen’s]Sub-subcontractors or anyone directly or indirectly employed by them,[Jaen]shall, prior to harmfulexposure of any employees on the site to such substance, give written notice of the chemical composition thereof to[Skyline]in sufficientdetail and time to permit compliance with such laws by[Skyline], othersubcontractors and other employers on the site.

* * *

§4.3.4[Jaen]shall be responsible for providing Personal Protective Equipment (PPE) including,but not limited to, hard hats,work gloves, harnesses, lanyards andeye protection.

* * *

ARTICLE 8 THE WORK OF THIS SUBCONTRACT

§ 8.1The Subcontractor shall execute the following portion of the Work described in the Subcontract Documents, including all labor, materials,equipment,servicesand other items required to complete such portion of the Work, except to the extent specifically indicated in the SubcontractDocuments to be the responsibility of others.

As per Project Conditions, the Project Manual and Contract Drawings.

* * *

ARTICLE 14...SUBCONTRACTOR RESPONSIBILITIES

* * *

§14.2 [Jaen] shall assign anexperienced and capable foreman, approved by [Skyline's] project management, with sufficient skills for proper interaction with project management. [Skyline] maintains the ability to demand a new project foreman for any or no reason.

§ 14.3 [Jaen] agrees to comply with all of [Skyline] policies, including but not limited to safety, health and safety program (H.A.S.P.), fine schedule, and violation prevention policies. A failure to comply with [Skyline] policies will result in commercially reasonable penalties that are related to the scope of the policy breach.

§ 14.4 If penaltiesorviolations––for example, issued by the New York Department of Buildings, OSHA, etc.––are assessed to [Skyline] because of [Jaen] mishandling, omission, negligence, etc., then reasonable monetary penalties, the cost of the violation and related attorney fees, and all ancillary costs including but not limited to, costs due to work stoppages, shall be charged to [Jaen].

§ 14.5 [Jaen] agrees, accepts, and acknowledges that all material and equipment orders placed through [Skyline] will be subject to a gross 2.5 percentbackcharge/fee of theorder.

§14.6 [Jaen] shall comply with any and all city, state, andfederal agency requirements for this project including but not limited to Equal Employment Opportunity, Federal Labor Standard Regulations and any and all other regulations imposed against [Skyline]. [Jaen] shallindemnify and defend [Skyline] for any breaches of Article 14 to the fullest extentof the law.

13.Thesubcontract included a “Subcontractor Training and Certification Rider” that included the following provisions:

SECTIONI.SUBCONTRACTORWORKERCERTIFICATIONREQUIREMENTS.[Jaen] agrees to sendall ofits workers ––that are to work on any of[Skyline’s]project sites––to receivetraining and certification from a training school that meets[Skyline’s]...standards and requirements.[Jaen’s]workers must have valid Certifications as required by all New York City,New York or New Jersey State,and Federal Agencies,specifically including butnot limitedto New York City Departmentof Buildings and OSHA requirements("Training”).

* * *

SECTION 6. TERMINATION.(i) Should[Jaen]failtorectify any contractual deficiencies with[Skyline]including failureto provide fully certifiedlaborerswith allCertifications on their person atall time[sic]while on a jobwith [Skyline],[Skyline]shall have the righttotake whatever steps itdeems necessaryto correct saiddeficiencies and chargethecost thereofto [Jaen], who shallbe liable forthefull cost of[Skyline’s]corrective action,including overhead, profit and actual attorney’sfees. (ii)[Skyline]may atany timeeject [Jaen’s]worker orworkers for nothaving the required Certifications from any[Skyline’s]job site (iii)[Skyline]mayback charge[Jaen]against any existingcontractwith oneor more of[Skyline’s]up to$5,000 to offset penalties or potential penalties from NewYork City, New YorkState,and Federal agencies imposed upon[Skyline]in addition to any contractual penalties per[Skyline’s]fine schedules incorporated herein by reference.

14.The “fine schedule” referred to in the “Termination” provision quoted in the preceding paragraph specifies 26 infractions for which Skyline may impose a “fine” (also referred to in the document as a “monetary penalty”) on Jaen ranging from $100 to $25,000 depending on the infraction (e.g., $5,000 fine for “no orimproper fall protection”).Thefine schedule’sintroductoryparagraph states: “The below fines can and will be enforced byany and all[Skyline] Personnel and are not a substitute or in lieu of any additional fines, fees, or administrative charges by any governing agencies. The fine is the maximum charge issued for [Skyline] per person per infraction.” (Ex. R-3at16).

15.Skyline has an arrangement with a company called Andromeda Advantage, Inc., (Andromeda)for Andromeda to provide certain administrative services to Skyline. Skyline and Andromeda share office spacein Long Island City, and the companies are affiliated, although the record does not disclose the nature of that affiliation except thatit isnotaparentsubsidiary relationship. (T. 326-27, 351-52; Skyline’s “Amended Disclosure of Corporate Parents, Subsidiaries, and Affiliates” dated Jan. 28, 2020).Besides providingSkylinecertain administrative services,Andromeda hassimilararrangementswithother construction companies to provide certain administrative services. Some of those other companiesare also affiliated with Andromeda, although there is no evidence of the nature of those affiliations. (T. 351-52).

16.Theadministrative services that Andromeda provides Skylineinclude general administrative, accounting, risk management, contract administration,andlegal assistance. TheadministrativeservicesthatAndromeda providesSkylinealsoincludesmanagingfor SkylineacatalogueofsubcontractorsforSkylineto use in its projects. (T.255,293-94,349). There are over 100 subcontractors inthecatalogueof subcontractorsthat Andromeda maintainsfor Skyline, about 40 of which Skyline hassubcontracted withmultiple times. (T. 259-61, 294-95).

17.Before Jaencommencedwork on the project here, Andromeda’sSeniorRiskManager (Patricia Perez)hadconfirmed that Jaen had not been previously citedby OSHAfor workplace safety and health violations.She confirmed thisby checking Jaen’s inspection history on OSHA’s public website.Perezalso confirmed thatthe Jaen employees who had been identifiedtowork on the projecthad completedallformal safety and health trainingthat local authoritiesrequire. (T. 276-77,293,356-57,365-66, 379-380). Some of thatformaltraining had been provided by atraining schoolcalledAndromeda Academyof Construction Trades, which is affiliated withAndromedain some fashion, althoughno evidence was presented describingthe nature of theaffiliation.(T. 350).

18.Skylineassigned Jose Sanchez as a project superintendent/supervisorfor the project. (T. 11; Stip. 4). Skyline also assigned anotherSkylinesuperintendent/supervisor, Mr.AngelCajilima, to work on the project. (T. 11, 101). 

19.Skylineassigned Julio Rueda to be the project manager for the project. As project manager, Rueda was responsible for overseeing the project superintendents Sanchez andCajilima. (T. 11, 353).

20.The project manager Rueda did not communicate with anyone from Jaen over the course of the project. Rueda never sawSkyline’s subcontract withJaen. (T. 417, 420-21).

21.The weekbefore Jaen started work on the project,Skylinesuperintendent Sanchez went to the worksite to assess it. (T. 142, 425). He determined that fall protection would be needed for theJaenemployeesworking on the rooftop, and so inmultipletelephone conversationswiththe other Skyline supervisorinvolved in the project, AngelCajilima,SanchezandCajilimaagreed thatby April 8(the day before the Jaen employees were to start work on the project),Cajilimawouldhaveanchorsinstalledon the rooftop(for useas a component of a personal fall arrest system (PFAS))andthatCajilimawould also have aguardrail systeminstalledon the rooftop. (T.101, 139, 141-42, 235-36).

22.Sanchez’seffortto havecertain fall protectionequipmentinstalledbefore Jaen was to start workon April 9indicates thattheSkylinesupervisorsexpectedthat Skyline, not Jaen,would be responsible forprovidingandinstallinganchors and a compliant guardrail system,notwithstanding that thesubcontract assigned thoseresponsibilities toJaen. There is no evidence that Skylineand Jaen had agreed that Skyline would chargeJaen for theinstallation anduse of thefall protection equipmentthat Skylineintended toprovide and installbeforeJaen started work.

TheWorksite

23.All theareas specified forrepairin the general contract wereonand around thenorthwest column of thebuilding’s rooftopwater tower. The rooftop wasflat,anditsedges wereunprotected. (T. 11, 49;Exs. J-2, J-3, J-9, J-12). The building’s penthouse balconywas the immediate next lower levelfrom the rooftop and was aboutten feet lower. The width of the balcony was not uniformfor all sides of thebuilding’s perimeter.(Ex. J-2). 

24.Theedges of thepenthousebalcony were protected by aparapet wallthat was topped by a railing that was of sufficient height and strength to protect workers from fallingoff, so no fall protection was necessary forwork done fromthe balconyfloor. (T.171,183-84;Exs. J-2, J-4, J-10).

25.Theroof was not accessibleto the Jaen employeesfrom the interior of the buildingby elevator or staircase. Rather, the Jaen employees couldaccessthe rooftoponly fromthebalcony. (T. 114, 183-84).To get to the roof, the employees climbed afixed ladderthat ran from the balcony floor to the rooftop. (T. 116, 147; Ex. J-12).The width of the balconywhere the fixed ladder was located was less than four feet. (Ex. J10).4

26.The water toweronthe building’s roofhad a square shaped footprint. Four brick-clad columns formed the four corners of the square shape and supportedan elevated platform onwhich thewater tankwas located. The elevated platform wasabouteightfeethigher thanthe rooftop. Portions of the elevatedplatform extendedover the balcony, beyondtherooftop’s unprotectededges. (Exs. J-2,J-3, J-9).

27.Thewest face of the column under repair (the northwest column)abutted therooftopsurface toform a right angle.(Exs. J-2, J-3, J-5, J-9). Thepart of the column’s brick façade to be repaired was on an inwardfaceof the column, the foot of which similarly abuttedtheflat rooftop,andsothemasonry workspecified in the general contract could be donefrom a position on the rooftop surface. (T. 248-49;Exs.J-2, J-3,J-6, J-9). 

28.Tomove from the balconyto the northwestcolumn,workerswouldclimbthe fixed ladder, step onto the rooftop, and thenwalk about 15 to 20 feet to reachthecolumn. (Exs. J-2, J-3, J-4. J-9). Aworkereitherexitingfromor mountingontothefixedladderat the rooftopwould necessarilycomewithin two to three feetofthe roof’s unprotected edgein that location. (Exs. J-3, J-4, J-9). 

MortarContainingHazardous Chemical

29.Skyline provided the mortar that the Jaen employeeswere touse at the worksite. (T.12; 384; Ex. J-16 at 3). The mortar was Portland Spec Mix Type N and Portland Spec Mix TypeS.(T. 12). The mortarcontainedPortland cement,which isa hazardous chemical that can cause severe chemical burns to the skin when mixed with water orcontacting perspiration. (T. 55, 71, 75;Exs. J-15 & J-16). TheJaen employees mixed thedry mortar with wateron the balconyand then moved buckets of the mixed mortar to the rooftop. (T.56-57,386-87; Ex. J-9). 

30.Ahazard communication plan(HCP)that conformed with § 1910.1200(e)(i) would have explicitly identified the mortar containing Portland cement as being present at the worksite. NeitherSkylinenor Jaenhad developed,implemented, or provided at the worksitean HCPthatconformed to the requirements of 29 C.F.R. § 1910.1200(e).5(T. 57-58, 74,77-78,97,312-13, 398-99).

31.NeitherSkylinenor Jaenprovidedorhadavailable to the Jaen employeesat the worksitethe mortar’s safety data sheet. (T. 12; Ex. J-16 at 3).

32.Skyline did not inform Jaen prior to the start of work that the mortar that Skyline would be providing to Jaen contained the hazardous chemical Portland cement. Skylineneitherprovidedwrittennotice of this as § 3.2.3 of the subcontract specified nor did Skyline provide Jaen such notice inanynon-written form. 

33.Skyline did not inform or train the Jaen employeesprior to the start of work,or during their work,about the hazards of themortarthat SkylinewasprovidingfortheJaenemployeesto usefor masonry work. (T. 12; Ex. J-16 at 4). 

34.There was no evidencethatJaen had provided the Jaen employees with any information or training on the hazards ofthe mortar that Skylinehadintroduced to the worksite. (e.g., T. 57-58, 398). There is no evidence thatSkyline inquiredto determinewhetherJaen had provided information or trainingto Jaen’s employeeson thehazards ofthe mortar that Skyline was introducing to the worksite for the Jaen employees to use.

35.The only evidenceoftraining and information that the Jaen employees had received that would meet the requirements of OSHA’s hazard communication standard (HCS), 29 C.F.R.§ 1910.1200(h), was trainingrequired by 29 C.F.R. § 1926.1153(i)thatrelatestorespirable crystalline silica. (Exs. R-2 & R-3). (There is no evidence that respirable crystalline silica was known to be present at the worksite.)

Events of April 9, 2019

36.On April9,SkylinesuperintendentSanchez picked up the two Jaen employees(Aucanshalaand the decedent)and drove them to the worksite. (There is no evidence of the location(s)whereSanchezcollectedthe two workers.).

37.Sanchez alsopicked upthe bricks andseveral bags ofdry mortar thattheJaen employees to use indoing the masonry work. (T. 12). Skyline had purchased the mortar, but there is no evidence whether Skyline had also purchased the bricks.(T.284-85, 337-38).

38.Sanchezdropped the Jaen employeesoff at the building, and the Jaen employees unloaded the bricks and mortar from Sanchez’s vehicle onto the sidewalk. (T. 12). Sanchezdid not go onto the rooftopon April 9before the Jaen employees started working. Rather,Sanchez simplydepartedthe area,andhedid not return untilthe end of the workday. (T. 184-85, 241-42).There is no evidence thatwhile the Jaen employees workedon the projecton April 9 thatSanchez attended to anymatters relating to the project.

39.Materials used at the worksite included bricks, mortar, and chemical waterproofingmaterial. (T. 11-12, 146). TheJaen employees moved these materialsfrom the street level tothebalconyon April 9. (T. 56; Ex. J-7). The Jaen employees did some demolition work on the rooftop on April 9. (T. 342-44; Ex. J-17 at 3-4). There is no evidence that the Jaen employees moved bricks and mortar or other materials from the balcony to the rooftop on April 9. There is no direct evidence that the decedent worked on the rooftop on April 9, or that if he did work from the rooftop that he failed to use a compliant PFAS. There is no evidenceaddressing what type of fall protection, if any, was used forthedemolition work done on the rooftop onApril 9.

40.At the end of thefirstworkday(April 9), Sanchez returned to the worksite to collect the Jaen employees andtransport themfrom the worksite. (T. 105, 142). (There is no evidence of thelocation(s) to which SanchezdrovetheJaen employees.) But before departing, Sanchez wentinside the buildingand up the roofto look at the work area. Upon doing so,he discovered that SkylinesupervisorCajilimahad not installed the anchorsor the guardrail system thatCajilimahad previouslyagreed he would have installedbefore the Jaen employees started workon April 9. (T.13,105, 142, 235). 

41.In an investigative interview conducted on thedayof the fatal fall,Sancheztoldthe CO and othergovernmentalinvestigatorsthatwhile driving the Jaen employees from the worksiteon April 9 (afterhe haddiscoveredthatnofall protection equipmenthad been installed as he had expected),he toldthemto be careful and to remember to “tie off”forthenext day’s work.(T.105,143).

42.Duringa post-fatality internal investigationthat Andromedaconductedin its support of Skyline,Sanchez said thatas hewasdrivingthe Jaen employees from the worksiteat the endof the workdayon April 9, he instructed the decedent not to work on the rooftop on thenextday of work(April 10). Sanchez said that heinstructedthe decedent to workfrom the balconylevel (i)removingdemolition debrisfrom the day before,and(ii)assistingAucanshala,who would be on the rooftop, in thehoistingofmaterialsto the rooftop. (T. 342-44; Ex. J-17 at 3).

43.Sanchez instructedthe decedentnottowork on the rooftopon April 10because Sanchez haddeterminedthatwhateverfall protectionequipmentthat would beavailableto the decedentat the worksitewould beinadequate to provide the decedent with compliant fall protectionon April 10.

44.Sanchezdid nottake any positive actionto haveanchorsor a guardrail systeminstalled on the rooftop before the Jaen employees returned towork on the project on April 10. (T.235-36).Sanchezdid not report the absence of that fall protection equipment to anyone at Skyline or Jaen.

Fatal FallandOSHAInspectionand Investigation

45.Aucanshalaand the decedent returned to the worksite on April 10. (Thereis no evidence addressing whether Sanchez again transported them or whether theyreturned tothe worksite by some other means.)

46.Aucanshalaworked on the rooftop on April 10,andheusedsome form of PFASwhile doing so. (T. 12,343-44). There is no evidence that the PFASAucanshalauseddid not conform to the requirementsfora PFAS that arespecifiedin29 C.F.R. § 1926.502(d).(T. 165).

47.Sometime after the Jaen employees started work on April 10, the decedent fellto his deathto theground levelcourtyard. (T. 35-36, 116, 148, 211-12,218-19, 248, 250,299;Exs. J6, J9).

48.There was no guardrail system orsafety net system installed on the rooftop at any time to protect the decedent from fallingofftheroof’s unprotected edges. (T.13,52-53, 127-29, 221-23). There were no anchors installed on the rooftop that would haveenabledthe decedent to use acompliantPFASto protect him in any fallfrom the roof’s unprotected edges. (Findings of Fact¶ 43).

49.Sanchezreturned tothe buildingsoonafterlearning aboutthefatal fall. Hewent to the courtyard where the decedent had fallen,andhethen went upto the rooftop. (T.12-13, 138-39, 148, 184-85). While on the roof,Sanchezerecteda ropeover theroof’s unprotected edge betweenthe fixed ladderand thewater tower. Sanchez erected the ropein that locationbecause he concluded thatdecedent had fallen over the roof’s edge inthat area,and heintendedthe ropetoindicatethe presence of the unprotected edge. (T. 138-39;Exs. J-3, J-4, J-12).

50.Compliance Safety and Health Officer (CO)Huangof OSHAwas assigned to investigate the fatal fall. (T. 35). When the CO arrivedat the building on April 10,the policehad control of the premises and investigators from the New York City Department of Investigations (DOI) were at the scene. (Tr. 35, 118). Thepolice told the CO that the decedent had fallen into the building’s courtyard, and the building manager took the CO to view that location. TheCOwas positionedin that location in the courtyardwhen he took the photograph received in evidence as Exhibit J-5lookingupward toward the water tower. (T. 36, 123). The CO thenwent to thepenthousebalcony and then onto therooftopto inspect those areas along withthe DOIinvestigators. (T. 36).

51.TheCO observedopened bags ofdrymortaron thebalconyfloor. (Ex. J-7). He also observeda fivegallon bucket of waterproofingmaterialon the balconyfloor at the foot of the fixed ladder. A rope was tied to the bucket’s handle. The rope’s other end wastied tothe top of the fixed ladder. (T.127,145,219-20;Exs. J-3, J-4, J-10). 

52.On the rooftop,near thebaseof the water tower structure,therewerebuckets of wet mortaranda stack of approximately 50to60 bricks, along with somehand tools. (T.57, 94-95, 112-14, 250; Ex. J-3, J-9). The bricksandmortar wereabout10to15 feet from thefixed ladder. (Exs. J2, J-3, J-9). 

53.Sometime before the fatal fall,the Jaen employees had moved the bricks andbuckets ofthe wet mortar from the balcony to the rooftop. They did so by tying a rope tothe handle of the bucket to be hoisted andusing the rope topullthe loaded bucketupfrom the balcony to the rooftop. The hoisting was done from a positionat the roof’s unprotected edge near the fixed ladder.

54.Afterthe COinspectedthe balcony and rooftop,hewent to the lobby of the buildingwhere he met Skyline’s project manager, Mr.Rueda. (T. 37, 104, 424). The CO also metMr.JohnTsampas, who identifiedhimself as the“principal”atSkyline. (T. 37-39). Tsampasinformedthe CO that Andromeda wouldact asSkyline’s safety consultant/representative for the OSHA inspection and investigation,andheaskedthat allinvestigatory communications bemadetoAndromeda. (T. 37). The CO honored that request. The two Andromeda employeeswith whom the CO communicatedduringhisinvestigationwere an in-house attorney for Andromeda(Mr. DanielWilenchik)andAndromeda’sSeniorRiskManager(Ms. Patricia Perez). (BothWilenchikand Perez testifiedat the hearingin Skyline’s case-in-chief. [T.(T. 37,78-79, 106, 255, 263, 315-16, 329-33].)

55.Andromedaalso served as the identified representative of Jaenfor the OSHA investigation. (T.315-16, 329-31).

56.After departing the worksite on April 10, theCOwent withtwo DOI investigators, Ross Hoffman and Janaina Siguencia, to NYPD Precinct 84 to interview Skyline superintendent Sanchez and Jaen employeeAucanshala. (T. 37-38, 129-30, 223).Sanchez andAucanshalawere interviewedseparately. (T. 223). Ms. Siguencia was the Spanish-Englishinterpreterforboth interviews. (T. 131-32, 207-08, 226).

PerformanceofSubcontract Provisions

57.Jaen did not submit toSkylinethe name of any“experienced and capable foreman” (or the name of anydesignated“foreman” at all)that Jaen intended to assign to the project for Skyline to approve, and Jaenfurtherdid not assign any employee to act as foreman for the project, even though§ 14.2 ofthe subcontract required Jaen to doso. (T. 348; Ex. J-17, p. 3).

58.There is no evidence that eitherAucanshalaor the decedenthad been designated as a foremanunder§ 14.2 of thesubcontract,and thus there is no evidence that Jaen supervised or directedtheworkof the Jaen employeesas §4.1.1of the subcontract required. 

59.Skyline’s superintendent for the project, Jose Sanchez, was the sole onsitesuperintendent/supervisor, even though § 4.1.1of the subcontractrequired Jaen to “supervise and direct” Jaen’s work. (Tr. 100-01, 241-42).The only evidence ofany active supervision of the Jaen employees is the supervision and instructions provided by Skyline’s supervisorJose Sanchez.

60.No provisionsof the subcontract expressly empowerSkylineto stop the work of Jaen employees for safetyviolations,ortoremovetheoffending employeeor the subcontractor itselffrom theworksite,but Skyline regarded itself to possesssuchauthority.(T. 278, 348-49).

61.Section 14.3 of the subcontractrequires Jaen to comply with the provisionsSkyline’s health and safety program(HASP), andSkyline’s practiceistoinclude its HASP in abinderthat it provides for each worksite. Skyline did notprovidesuchabinderat the worksite,and there is noevidence that Skyline otherwise provided Jaen with a copy of Skyline’s HASP. (T.74, 7778,310-13). 

62.There is no evidence that Skylineassessedany finesor monetary penaltiesagainst Jaen arising out of the performance of thesubcontract. 

63.There is no evidence that Jaen requested that Skyline provide Jaen withanyequipmentforJaen’sperformance of thesubcontract, which under§3.1.3 of thesubcontractwould be made “available to [Jaen] only at [Skyline’s] discretion and on mutually satisfactory terms.”

64.There is nodocumentaryevidence that Skyline made anyrecord of thebricks and mortarthat it provided to Jaen or that Skyline made anyclaim for thecost of thosematerials to Jaen for performance of thesubcontractas contemplated by §3.3.2of thesubcontract. (T. 333-38).

65.There is no evidence that Skyline gave Jaenpriorwritten notice of the chemical composition ofthe mortarthatSkylineintendedto supply to the Jaen workers to use in performingthesubcontractwork “in sufficient detail and time to permit [Jaen's] compliance with” Jaen’s duty to notifyitsemployeesand otherwise comply with the HCSas§3.2.3of thesubcontractprovided.

Issuance of Citations

66.On the same day that OSHA issued the Citation and Notification of Penalty to Skyline, OSHA issued a separate Citation and Notification of Penalty to Jaen that cited Jaen for violating the same standards for which OSHA was citing Skyline.6Jaen resolved that citation by entering into aformalsettlement agreementwhich had the effect of affirmingallseven citation items. (T. 79).7

67.On August 17, 2017,OSHAhad previouslyissued a citation toSkylinethat had alleged a violation of§1910.1200(e)(1).(Ex. C-2).That2017 Citationwasresolved througha formalsettlementagreement whichbecame a final order of the Commission on April 23, 2018,andwhich affirmed the violation with a classification of “other than serious.” (T. 14,83-84;Exs. C-2, C-5). The formal settlement agreement amended theoriginal citation’sdescription of theallegedviolationto read asfollows:"Subcontractoremployers did not implement a written hazard communication program foremployees required to perform demolition of masonry concrete structures thatcontain silica and work with masonry chemicals that contain silica, including butnot limited to Sika Quick 1000 hardening mortar, Sika YOH vertical andoverhead repair mortar and SikaArmatecBonding Agent." (Ex. C-5 at 3).

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Act upon the Secretary’s forwarding to the Commission the notice of contest thatSkylinehad timely filed. (T.10). 29 U.S.C. § 659(c); 29 C.F.R. § 1903.17(a).Skylinehas employees andis engaged in a business affecting commerce, and soSkylineisan“employer”as defined by the Actand thussubject to the Act’s applicable compliance obligations. 29 U.S.C.§§652(3) &(5); § 654(a)(2); Findings of Fact¶ 1.

Non-adjudication ofSecretary’s Argument thatSkylinewasCommon-law Employerof the Jaen Employees

The Secretarystipulatedthat the two workers performing the subcontract work wereJaenemployees(T. 12),butthe Secretary neverthelessarguesthatSkylinewas the common-law employer of the Jaen employees for purposes of compliance with the Act under thecommon-lawagency testarticulatedinNationwide Mut. Ins. Co. v. Darden(Darden), 503 U.S. 318 (1992).Sec’yBr. 15-26.See,e.g., FroedtertMem'lLutheran Hosp. Inc.(Froedtert), 20 BNA OSHC 1500, 1505-08 (No. 97-1839, 2004)(determining thatahostemployerof temporaryworkerswas the common law employer of the temporary workers under theDardentest, and thus host employer was subject to the requirements of the Act with respect to those temporaryworkers).For the following reasons, the Secretary’sargumentgrounded in the common-law agency test ofDardenis not adjudicatedherein. 

The Secretary’stheory of the violationsasembodied in the original Citationwas grounded in the Secretary’s Multi-Employer Citation Policy(MECP)under which theSecretaryregardedSkylineto have the status of“controlling employer”atthemulti-employerconstructionworksite. Under that theory, not only wouldJaenbeliable for its violations, butSkylinecould also be found liable forJaen’sviolations.8 (T. 188; Sec’y Br.27);OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy§ X.A(Dec. 10, 1999)(“On multi-employer worksites (in all industry sectors), morethan one employer may be citable for a hazardous condition that violates an OSHAstandard”).9

Under the“controlling” and “creating”employertheoriesofSkyline’sresponsibilityfor the alleged violations,it ispresumedthat no employment relationshipexistedbetween Skyline and the Jaen employees. SeeSummit Contractors,Inc., 23 BNA OSHC 1196,1204(No.05-0839, 2010) (notingthat in a “multi-employer construction worksite case ... the lack of an employment relationship between the cited controlling or creating employer and the exposed employee is presumed”),aff’d, 442 F.App’x570 (D.C. Cir. 2011) (unpublished).If Skyline weredeterminedto have been thecommon-lawemployerof the Jaenemployees, that determination wouldconvertthe Citation’s “controlling employer”theoryof responsibilityto an“exposing employer”theory.MECP§X.C.1(defining an “exposing employer” asan “employer whose own employees are exposed to the hazard”).UnderboththeSecretary’s MECPand Commission precedent, an “exposing employer”hasa greater duty of careto protect its own employeesthandoesa “controlling employer.”SeeSuncor Energy (U.S.A.) Inc.(Suncor), No. 13-0900, 2019 WL 654129, at *4 (OSHRC,Feb. 1, 2019)(“Acontrolling employer’s duty to exercise reasonable care is less than what is required of an employer with respect to protecting its own employees”);FamaConstr.,LLC,19-1467,2023 WL 2837610,at*2(OSHRC,Mar. 29,2023),appeal docketed, No. 23-12346(11thCir.July 20, 2023)(noting that the “standard required of an employer whose own employees are exposed to the alleged violative conditions” is “more stringent” than the standard required of a “controlling employer”);MECP§ X.A.2 (“the extent of the measures that a controlling employer must take to satisfyits duty to exercise reasonable care to prevent and detect violations is less thanwhat is required of an employer with respect to protecting its own employees”).

The Secretary firstraisedthecommon-law employer theoryof Skyline’s responsibility(i.e.,the“exposing employer”theory)inthe Secretary’sopening statement atthe outset of the hearing, whenanattorney for the Secretary stated:“This case involves joint employers, Jaen andSkyline, with a straightforward division ofresponsibility: Jaen[]to provide laborers and Skyline to supervise those laborers”(T. 24);and “Skyline should beheld liable as an employer of the exposed employeesor, at the very least, as a controlling employer.”10 (T. 25).

The notice pleading requirementsembodied inCommission Rule 34maynot necessarily requirethatthe Secretary expressly allege in theformalcomplaint thatthe cited employer’salleged violation is grounded inacommon-lawemployertheory of responsibility. SeeRules of Procedure; Final Rule, 57 Fed. Reg. 41676, 41678 (Sept. 11, 1992)(to be codified at29 CFR Part 2200)(reinstituting “notice pleading”in Commission proceedingsat the complaint and answer stage). Even so,there was nothing in thejoint prehearing statementthat the parties filedtwo weeks before the hearingto indicatethatany of the issues of fact or law to be litigated at the hearingwould pertain toSkylinebeing thecommon-law employer of the Jaen employees. Cf. Excel Modular Scaffold & Leasing Co. v. OSHRC, 943 F.3d 748, 754 (5thCir. 2019) (joint prehearing statementfiled prior to Commission hearingwasbinding on parties as to affirmative defenses to be litigated). In the same vein,inSkyline’spost-hearing reply brief the attorney for Skyline represents that no discovery (orany other pre-hearingcommunication between the attorneys) hadaddressedtheDardentest. (Resp’tReply Br. 3). It isunsurprising therefore that therecordevidenceis scant respectingmany of theDardenfactorsand non-existent as to some others. Cf.FreightCarAm., Inc., No. 18-0970, 2021 WL 2311871, at *4 (OSHRC, Mar. 3, 2021)(determining the evidentiary record was insufficient to establishcommon-lawemployment relationship, noting that “we are troubled by the lack of evidence addressing many of the factors listed inDarden”).

In view of the foregoing, the Secretary’s contention that Skyline was the common-law employer(i.e., the “exposing employer”)of the two Jaen employeesfor purposes ofthe alleged violationsis not adjudicated hereinbecausethe parties did not try, andtheydid not consent to try, that alternativetheory of responsibility. SeeMcWilliams Forge Co., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984)(stating that anunpleadedissue may be adjudicated only where “the partiestriedanunpleadedissue and that theyconsentedto do so”).

Even if theparties hadtried(andhadconsented to try)the issue of Skyline’s asserted responsibility as the common-law employer of the two Jaen employees, the record evidence is insufficient to establishthe Jaen employees to have beenSkyline’s common-law employeesfor thework performed under thesubcontract.11FreightCarAm.,at *4(concluding “that the preponderance of the evidence does not show that [respondent] is the employer of the ... workers”); cf.Jammal v. Am. Fam. Ins. Co., 914 F.3d 449, 453–55(6thCir. 2019)(observingthat thedetermination of whether a person is an “employee” under theDardentest “is a mixed question of law and fact”andthat a district court’s “findings underlying its holding on each of theDardenfactors are factual findings, and the court’s ultimate conclusion as to whether the [workers] were employees is a question of law”).

Skyline’s Status asthe“Controlling Employer”

Aspreviouslynoted, the Secretary cited Skylineunder the theory that it was the“controlling employer”at themulti-employer construction site.Skylinedoes notdisputethat theprojectinvolved a “multi-employer”constructionworksiteonwhich itwasthe general contractorbutdoesdispute that it hadthe status of “controlling employer”there.(Resp’tBr.3).

The Secretary bears the burden of provingthatageneral contractorin charge ofa multi-employer construction sitehas the status of “controlling employer.”StormForceof Jacksonville, LLC,(StormForce)No. 19-0593, 2021 WL 2582530,at*3n.5(OSHRC,Mar. 8,2021).To establish that Skylinehad the status ofcontrolling employer, the Secretary was required toprove by a preponderance of the evidencethat Skyline had “general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.”Summit Contractors,Inc., 22 BNA OSHC 1777, 1780-81 (No. 03-1622, 2009) (agreeing with and quoting the definition of“controlling employer” set forth inMECP§X.E.1).Aputative controlling employer’s“general supervisory authority” over the worksiteneed not necessarilyinclude“the right tocontrol the manner and means by which the product is accomplished”(which isthe central inquiry of thecommon-law analysis ofDarden,503 U.S. at 323), butthe putative controlling employer’s“general supervisory authority”mustat leastincludehaving“control over matters affecting the safety of the workers on the jobsite.”Fama Constr., LLC v. U.S.Dep'tof Lab., No. 19-13277, 2022 WL 2375708, at *4 (11thCir. June 30, 2022)(unpublished).Anexample of“controlover matters affecting the safety of the workers on the jobsite”is“the authority and ability to control the workers’ use of safety equipment and adherence to safety procedures.”Id.;see alsoMECP¶X.E.1supra(defining“controlling employer”).

Skyline arguesthat it was not the controlling employer at the worksite because it “subcontracted the entire scope of work associated with the two-day project, including the supervision of the work, to the subcontractor Jaen.” (Resp’tBr. 3). Skylinepoints toprovisions of thesubcontractthatrequiredJaento (1) “pay for all materials, equipment and labor used in connection with the performance of this Subcontract,”(2) “take reasonable safety precautions,”(3) “be responsible for providing [PPE], including but not limited to hard hats, work gloves,harnesses, lanyards and eye protection,” and(4) “assign an experienced and capable foreman, approved by [Skyline’s] project management, with sufficient skills for proper interaction with project management.”(Resp’tBr.3;Ex. R-3).

These citedcontractual provisionsmight havesuccessfully thwarted any contention thatSkylinehad been a“controlling employer”ifthecontractingparties’ actualperformancehadconformed to thesubcontract. But the parties’actualperformance bore little resemblance tomany salient contractual provisions.

SkylineessentiallyrelievedJaenof its obligation to complywith many of thesubcontract’s provisions. In some instances,Skylineundertooktheperformance ofresponsibilitiesthat thesubcontractassigned to Jaen(most significantly, the requirement to provide and install necessary fall protection equipment),and in other instances Skyline simply didnotrequireJaen to comply with provisionsthatSkyline knew Jaenwas not following.Moreover,respectingone of the few subcontractprovisionsthat expressly assignedtoSkyline asafety andhealth role (the provision thatrequiredSkylineto provideJaen with written notice that Skyline would beprovidingmortar containinga hazardous chemical), Skylinebreacheditscontractualduty. (Ex. R-3, § 3.23; Findings of Fact¶ 32).

Therecord provides ample support for theSecretary’s argumentthat “the subcontractor agreement that Skyline relies upon to shield itself from liability does not appear to have played any meaningful role in defining the reality of its relationship with Jaen.” (Sec’y Br.36).Noteworthyexamples ofvariances between the terms of thesubcontractand theparties’actual performanceunderthesubcontractinclude:

ØThesubcontractrequired Jaento “assign an experienced and capable foreman, approved by [Skyline’s] project management.”(Ex. R-3, ¶ 14.2).Jaendid not assign any foreman to the projectbecause Jaen does not employ any individuals as“foremen.” And because Jaen does not employ any individuals as foremen,Jaendid notsubmitto Skyline’s project manager for prior approvalthenameofaforemanfor the project,as thesubcontractrequired.

ØThesubcontractrequired Jaen to “supervise and direct the[Jaen’s]Work” (Ex. R-3§ 4.1.1),butJaendoes not employ any individuals as “supervisors,” and so Jaen had no supervisors to assign to the project. The only supervisor with whom the Jaen employees had contact was a Skyline supervisor (Sanchez).

ØOn the first day of Jaen’s work (April 9),Skyline supervisorSanchez transported the two Jaen employees toand fromthe worksite—thiscould beviewed asincongruous with Jaen’s contractual responsibilitiesfor supervising and directing its employees andforperformingthegeneral contract’sentire scope of work.

ØEven though thesubcontractrequired Jaen to comply with allapplicablesafety requirements (Ex. R-3§ 4.3.1),Skyline did not hold Jaen responsible for providing all components of compliant fall protection systems. Rather,theSkylinesuperintendentscommunicated betweenthemselvesabout Skyline providing and installing certainfall protectionequipmentfor the Jaen employees, andtheyhad planned for thatequipment to be in place before the Jaen employees started work. (T. 101, 139,235).

ØWhenaSkylinesupervisor(Sanchez)discovered thatanother Skyline supervisor(Cajilima)had not provided andinstalledanchorsandacompliantguardrailsystemon the rooftopas they had previously agreed between themselves,Sancheztook no action to require the Jaen employees to installthe equipment, which under the terms of thesubcontractwaswhollyJaen’sresponsibility.

ØThe subcontractmadeJaenwholly responsibleto “supervise and direct” the Jaen employees,butSkyline superintendentSanchez said heassignedspecific tasksto bothJaen employees. Andromeda’sSeniorRiskManager indicatedthiswas Skyline’scommon practice. (T. 107).Sanchez said heassignedAucanshalato hoist materialsonto the roof from a position on the rooftop,andthathe instructedthe decedent to assistAucanshalaas he did sofrom a position on thebalcony. (Ex. J-17 at 3-4; T. 343-44). Sanchez also said that heinstructedAucanshalato “tie off,”likelyexpectingthatAucanshalawouldtie off to an I-beam that was part of the water tower structure rather than to an anchor that Sanchez had expectedCajilimato have installed before work began. (See T. 423).Cf.Part 1926, subpart M, Non-mandatory Appendix C § II(h)(1)(i) (indicating that under somecircumstances a structural I-beam may provide an anchor point for aPFAS). (Ex. R-3 § 4.1.1; Ex. J-17 at 3-4; T. 343-44).

ØEven though thesubcontractrequired Jaen to pay for all materials and equipment (Ex. R-3§ 4.1.6),Skyline providedmaterials(bricks and mortar)andcertainequipment(chisels and trowels)usedtoperform thesubcontractwork. (Ex.J-16 at 3). There is no evidence that Skylinemaintaineda record of the materials that it provided to Jaen inpreparation forback-chargingJaen,as the subcontract would permit,for the cost of these materialsorforthe use of this equipment. Nor is there any evidence thatJaen otherwise paid or intended to pay Skyline for thematerials or the use of equipmentthat Skyline provided for the performance of thesubcontractwork.(T. 333-38).

ØSkyline did notprovide written notice to Jaen regarding the hazardouschemicalcontained in the mortarmixthat Skyline providedforthe Jaen employeesto usein performing the repairs, asSkyline was required to doby§ 3.2.3 of thesubcontract,so that Jaen could thencomply with the requirements of theHCS.

ØThe general contract, which set forth the detailed scope of work,was not annexedto thesubcontractasthe terms of the subcontractstatedthat it was, and thesubcontract’s description of the scope of work was limited tosimply“Masonry & Roofing” at the project address.(Ex.R-3 at1,13).

ØSkyline’sHealth andSafetyProgram (HASP) was not attachedto thesubcontractas thesubcontractstatedthat it was(Ex. R-3 at 10-11),and there is noevidence that the HASPhad been provided to Jaen prior toJaenstartingwork on thesubcontract. (T. 310-11).Providing Jaen with a copy of Skyline’sHASP would benecessary for Jaen toperformthe subcontract’s requirement that Jaencomply withtheHASP, as well as to besubject to certain penalties for failing to comply withit. (Ex. R-3 § 14.3).12

Moreover,Skyline’sformer in-houseattorney(who isnowanin-houseattorneyfor Andromeda)testified that as a general matterSkylinewould have theauthority toorder a subcontractor to stop work upondetectingviolations ofSkyline’s safety standards, notwithstanding thatSkyline’s standard subcontract form, which was used here,contains no express provisions to that effect, but rather provides only for the subcontractor to pay penalties to Skyline for non-compliance with Skyline’s health and safety program (HASP).(T. 348-49; Ex. R-3 §§ 14.3 & 14.4).It isthus evidentthat Skyline regardsimplied provisions ofSkyline’s standard subcontractform(or at least regards its administration of its subcontracts),toextend to“control over matters affecting the safety of the workers on the jobsite.” Fama Constr., LLC v. U.S.Dep’tof Lab., No. 19-13277, 2022 WL 2375708, at *4 (11thCir. June 30, 2022)(unpublished).

The Commission hasapprovinglyquoted languagefromtheSecretary’sMECPthat statesan employer may be deemedto bea controlling employer at a multi-employerworksite “by the exercise of control in practice.”StormForce, 2021 WL 2582530, at *3n.4 (quotingMECP¶X.E.1);see alsoMECP§ X.E.5.d.(statingthat“[e]venwhere anEmployer has no explicit contract rights with respect to safety, anemployer can still be a controlling employer if, in actual practice, itexercises broad control over subcontractors at the site”).

Thegreat weight of theevidenceestablishes thatSkylineexercised control in practice overmatters affecting the safety of theJaen employeesandthushad the status of controlling employer at the worksite. Perhaps the most prominent example of that control in practicewasSkylineundertakingto provideandtoinstallfall protection equipmenton the rooftopbefore the Jaen employeesstarted work, even thoughthat responsibility was wholly Jaen’s under the subcontract. Skyline’s undertaking of that task demonstrates that Skyline did not expect Jaen to do it,andfurther thatJaen understood that Skyline would do it. The apparentmutual understanding about which company would provide and install fall protection equipmentsubstantially supports the conclusion that Skyline’s status at the multi-employer construction site was that of “controlling employer.” Similarly supportive of that conclusion was the Skylinesuperintendent’seffort tomitigate Skyline’s failure to provide and installthe fall protection equipmentby instructing the decedent at the end of the first day ofworkto work only from the balcony level on thenextday, which was the day of the decedent’s fatal fall. 

The Secretary has proven by a preponderance of the evidence that Skylinehadthe status of controlling employer at the multi-employer construction worksite. SeeStormForce,2021 WL2582530,at *6(finding general contractor to have the status of controlling employernotwithstanding provisions in the subcontract thatprovided the general contractor“does not retain supervisory controlof such joint use areas for purposes of liability for unsafe conditions”and “shall not be able to ensure [subcontractor’s] adherence to safety standards and the [OSH] Act because[general contractor]cannot reasonably be expected to prevent, detect or abate violative conditions by reason of its limited role on the project”);cf.MECP§ X.E.5.b.(2) (providinganexampleof anemployerthat wasnota controlling employer because the employer hadinsufficient contract rights to“confer control over the subcontractors”andthe employer“didnotexerciseany controlover safety atthe site”).

Skyline’s Duty as a “Controlling Employer”

“It is well-established that a controlling employer has a secondary safety role and therefore its duty to exercise reasonable care isless thanwhat is required of an employer with respect to protecting its own employees.”Fama Constr.,2023 WL 2837610, at *2,quotingSuncor, 2019 WL 654129,at *4,*6-7.

“On a multi-employer worksite, a controlling employer is liable for a contractor’s violations if the Secretary shows that [the controlling employer] has not taken reasonable measures to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”Suncor,at *4(quotingCentex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994));MECP§X.E.2(stating a “controlling employer must exercise reasonable careto prevent and detect violations on the site”).

Where“a controlling employer has actual knowledge of a subcontractor’s violation, the controlling employer has a duty to takereasonable measuresto obtain abatement of that violation.”StormForce, 2021 WL 2582530,at*6;see alsoSummitContractors, 22 BNA OSHC at 1781 (determining that a controlling employer/general contractor that had actual knowledge of a subcontractor’s violation “failed to take reasonable precautionary measures to obtainabatement”).13

Butwherethecontrolling employer lacksactualknowledgeof a subcontractor’sexistingviolation,then“the pertinent inquiry is whether the controlling employer met its obligation ... to ‘exercise reasonable care,’ i.e., to take ‘reasonable measures' to ‘prevent or detect’ the violative conditions.”Summit Contracting Grp., Inc., No. 18-1451, 2022 WL 1572848, at *4 (OSHRC May 10, 2022),quotingStormForce,at *8. That inquiry“requires an assessment of‘the nature, location, and duration’of the violative conditions, as well as‘objective factors’relating to the controlling employer's role at the worksite and its relationship with other onsite employers.”Summit Contracting Grp., Inc., 2022 WL 1572848, at *4,citing to and quotingSuncor,2019 WL 654129,at **5-9. The“objective factors”that must be assessedinclude“the nature of the work, the scale of the project, and the safety history and experience of the contractors involved.”14Suncorat *7,citingMECP§§X.E.2&X.E.3.

And so,theduty of thecontrolling employerto exercise reasonable carehas two components: (1)with respect to another employer’sviolation about which the controlling employer has actual knowledge, to take reasonable measures to obtainabatementof (orpreventemployee exposure to) the violative condition; and (2) with respect toanother employer’sviolation about which the controlling employer lacks actual knowledge, topreventanddetectthe violative condition.

CitationItems

To establish a violation of an OSHA standard,the Secretary must proveby a preponderance of the evidence:(1) the standard applies; (2) there was noncompliance with its terms; (3) employees were exposed to, or had access to, the violative condition; and (4) the cited employer had actual or constructive knowledge of the violative condition. Donahue Indus. Inc.,20 BNA OSHC 1346, 1348 (No. 99-0191, 2003);D.A. Collins Constr. Co. v. Sec’y of Lab., 117 F.3d 691, 694 (2d Cir. 1997).

SnaphookUsein PFAS(§ 1926.502(d)(6)(i)—Citation 1, Item4)

Citation 1,item 4, allegesa serious violation of § 1926.502(d)(6)(i), which provides:

(6)Unless thesnaphookis a locking type and designed for the following connections,snaphooksshall not be engaged:

(i) directly to webbing,ropeor wire rope[.]

The Secretary alleges thatSkyline violated this standardon or about April 9 and 10when“an employee utilizing a personal fall arrest system approximately 130 feet above lower levels engaged thesnaphookof his lanyard directly to the webbing of his lanyard.” The Secretary’s theory of theviolation is thatAucanshala, not the decedent, was the Jaen employee involved in the alleged violation. (T. 164). 

The Secretary has not identified any evidencein its post-hearing briefsthatAucanshalahad improperly used asnaphookin the manner alleged, and the undersigned discerns no suchrecordevidence.15 (Sec’y Br. 46-47). There being no evidence showing non-compliance with thecited standard, Citation 1, item 4 must be vacated.

Fall Protectionfor UnprotectedSides andEdges16(§ 1926.501(b)(1)—Citation 1, Item 3a)

Citation 1, Item 3a, alleges a serious violation of 29 C.F.R. § 1926.501(b)(1), which provides as follows:

Unprotected sides and edges.Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from fallingby the use ofguardrail systems, safety net systems, or personal fall arrest systems. 

The Secretary allegesSkyline violated the standardwhen,on April 9 and 10, 2019,“[a]n employee was working at the unprotected edges of the building roof approximately 130 feet above lower levels to repair the northwest brick column of the water tower without being protected from falling by an adequate fall protection system.”The Secretary’s theory of this violationwhen issuing theCitation wasthatthe decedent, notAucanshala,had engaged in the alleged violative conduct.17

Applicabilityof the Standard

Thecited standardrequiresthatfall protectionbe provided when an employee is on a walking/working surface with an unprotected edgethat issixfeet or more above the next lower level.A walking/working surfaceis definedas “any surface, whether horizontal or vertical on which an employee walks or works, including, but not limited to, floors, roofs,...but not including ladders...on which employees must be located in order to perform their job duties.”§1926.500(b).The repair workoccurredon a roofwith unprotected edges that was about10 feet above the balconyleveland about130 feet above the groundlevel.(T. 11,127-28, 221-22; Ex. J3). The standard applies to theworkperformed onthe rooftop.

Compliance with theStandardand Employee Exposure

The circumstantial evidence is clear and convincing thatat the time of the fatal fallthe decedentwason the rooftopand was not protected by any compliant form offall protection. EventhoughSanchezsaid he hadinstructed thedecedentat the end of the first day of work(April 9)not to work from the rooftopthenext dayandinsteadtowork from the balconylevel, it is reasonablyinferablefrom the fact of the fatal fallthat the decedentdisobeyedthat instruction.Moreover, itwasforeseeablethat thedecedentwoulddisobey thatinstruction. Theoperational requirements of theprojectmade itunlikely that there would be anyuseful work activitiesforthe decedenttoperformwhile on the balcony after he had finisheddoing what Sanchez told him to dothere—clear demolition debris and helpAucanshalaasAucanshalahoistedmaterialsfroma position onthe rooftop. If Sanchezgenuinelyexpected the decedentto refrain from going onto the roof tohelp his co-worker with the repairs, that expectation was wholly unreasonable. For the decedentto followSanchez’s instruction would havemeant thatthe decedentwouldhaveremainedon the balcony with no work to dowhilehis co-worker did all the workon the rooftofinish a job that Skylinehadexpected to becompletedin two days by two workersbothworking on the roof.

Sanchez’sactionson the rooftop in theaftermathof the fatal fall support this reasonable conclusionthat the decedent disobeyed Sanchez’s instruction and worked on the rooftop without fall protection. When Sanchez went back on the roof after the fatal fall,heerected aropeoverthe roof’s unprotected edgebetweenthe fixed ladderandthe water tower. That part of the roof iswhereSanchezconcludedthedecedent had fallen based upon where the decedent’s body wasdiscoveredon the ground-levelcourtyard. (T. 138, 145).

Contrary to Skyline’s argument, it is reasonably inferable from the circumstantial evidence that thedecedentdidnotfall fromthe balconylevel. (Resp’tBr. 8). First, there is no evidence of any operational necessity for the decedent to climb over the metal railingthat topped the balcony’s parapet wallto perform any tasks. Second,Skyline presentedno scientific evidenceabout the trajectory the decedent’s body would have takenupon falling over the unprotected edge. It is entirely plausible that the trajectory could have carrieddecedenton or over theparapet wall andrailingthat protected the less thanfour-foot-widebalcony.(Exs. J-2, J-3, J-4, J-10, J-12).

Theoccurrence ofthe fatal fallsupports the reasonable inference that the decedent was not utilizing any compliantPFASwhen he fell.18Moreover, Sanchez’sinstruction tothe decedentthat he work only from the balconyon April 10supports the reasonable inference thatthere was no compliant PFAS equipment at the worksite on April 10 for the decedent to use.

For these same reasons,the circumstantial evidence is clear and convincing that the decedent was exposed to the violative conditionof notbeing protected by acompliant fall protectionsystemwhile working near an unprotected edgethat wassix feetor moreabove the next lower level. 

EmployerKnowledge

To establish knowledge, the Secretary must prove thatSkyline“knew or, with the exercise of reasonable diligence, could have known of the presence of the violative condition.”Am. Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012).

The evidence is insufficient to establish thatSkyline had actual knowledge of the violative condition. After Sanchezdiscoveredon April 9that supervisorCajilimahad notsucceeded in providing andinstalling theanchors ortheguardrail systemthatSanchezandCajilimahad agreedCajilimawouldbe responsible forhavinginstalled, Sanchezsaid that heinstructed the decedent not to work on the rooftop. The only reason forSanchezto give thatinstructionwould bebecauseheknew that the decedent did not have the equipment necessary for a compliant PFAS forhim towork on the rooftop. But since thedecedentcouldhave complied with theinstructionnot to work on the roof,Sanchez(and thus Skyline)did not have actual knowledge that the decedenthaddisobeyedthatinstruction thenext daybygoing on the rooftop towork without anycompliant form offall protection.

There is abundantevidence, however,to establish that Sanchez should have known thatthe decedent was likely not tocomply withhisinstruction to work only from the balcony onApril 10,and thus the evidence is sufficient to establish thatSkyline, through its supervisory agent Sanchez,had constructive knowledge of the violative condition. N.Y. State Elec. & Gas Corp v.Sec’y of Lab., 88 F.3d 98, 105 (2d Cir. 1996)(“Knowledge or constructive knowledge may be imputed to an employer through a supervisory agent”).

As notedsuprain footnote 14,the factors for determiningwhether a controlling employer is deemed to have had constructive knowledge of a subcontractor’s violations are the samefactorsthat are considered for determining whether a controlling employer hasmet its obligation to exercise reasonable careintakingmeasures to prevent or detect a subcontractor’s violations.SeeSuncor, 2019 WL 654129 at *4, *5–10.“[T]he pertinent inquiry is whether the controlling employer met its obligation ... to exercise reasonable care, i.e., to take reasonable measures to prevent or detect the violative conditions.”Summit Contracting Grp., Inc., 2022 WL 1572848, at *4.

Sanchez’s instruction to thedecedentto work only from the balcony, absent any other affirmative efforts,did not satisfySkyline’s obligation as the controlling employer to exercise reasonable careto prevent the violation. Sanchez knew,or he reasonably should have known,that the decedent was unlikely to abide byhisinstruction.For the decedent to follow that instructionwouldhave lefthimwith hardly any work to do onthe balcony andwould have leftAucanshaladoing all the work on the rooftop,which is where all the actual repairworkhad to be done.Sanchezdid notalerthis supervisor, theproject managerRueda,oranyother Skyline official about the absence of fall protection for the decedent. Sancheztook no affirmative steps himselftostop the work andprovide and install the necessary fall protection equipment, aswasSkyline’soriginalplan to do. 

Sanchez knew that neither Jaen employee had been appointedcrewforeman,andso he also knew thathe was the only individual actively supervising the Jaen employees. There is no evidence thatSanchezheightenedhis monitoring of theworksiteon April 10to enforce his instructionthatthe decedent work only from the balcony. Increased monitoring to assure compliance with that instruction would have been in orderbecause Sanchezknew or should haveknown thatcomplying with thatinstructionwouldslow work progress andexertpressureonthe otherwise unsupervised Jaen employees to disobey the instructionso they couldfinish theproject in the two days allocated for it.

And even though Andromeda,inproviding administrative support to Skyline, had confirmedbefore the start of workthat bothJaen employeeshad completedall requiredworkplace safety and healthtraining(Exs. R-1, R-2; T.361-79),that formal trainingprovided noreasonableassurancethat the otherwise unsupervisedlaborerswouldabide byanunrealisticinstructionthatthe decedentstay on the balcony andnot work on the roof.

The two Jaen employees were unsupervisedand wereworking on a small ($1800)subcontract expected to be completed in two days. The Jaen employeeshadlikelyexpected thatnecessaryfall protection equipment was going to be installed at the worksitebefore they started work. Yeteven though that equipment had not been installedastheylikely expected,Sancheznevertheless, in essence,instructed theJaen employeessomehowto “work around” the lack of that necessary equipment andfinish the job without it.

The measures that Skyline took to prevent or detectJaen’s non-compliance with § 1926.501(b)(1)were palpablyinadequateto satisfySkyline’s dutyto take reasonable measures to prevent or detect theviolation. Reasonable care required more than (1) Sanchezgiving the decedenta workinstructionthat heknew orreasonably should have known the decedent was likely to disobey, (2)Andromedadetermining thatJaenhad not previously beencited for any workplace safety or health violations,and(3)Andromedaconfirming that thetwoJaen employees had completed the formal training required by local authorities. (T.379-84).

For these reasons,the great weight of theevidence establishes thatSkyline, through its supervisory agent Sanchez,failed totake reasonable measures to prevent or detectJaen’sviolationof§ 1926.501(b)(1) on April 10. Skyline istherefore deemed to have had constructive knowledge of the violation.

For these same reasons, Skylineisresponsible forJaen’s violationas the controlling employer at the worksitebecause Skylinedid not meet its duty to exercise reasonable care by takingreasonable measures to preventthe violation, or todetectthe violation and then taking reasonable measures to cause abatement of the violative condition. Summit Contracting, 2022 WL 1572848,at*4.

Classification and Penalty

The Secretary alleges that Citation 1, item 3a should be classifiedas serious. A violation is properly classifiedas serious under section 17(k) of the Act if “there is substantial probability that death or serious physical harm couldresult.”29 U.S.C. § 666(k).The violationhere,involving a fatal fall,very obviouslymeets the Act’s definition of “serious.”

Section 17(j) of the Act requires that in assessing penalties the Commission give “due consideration” to thegravity of the violation, thesize of the employer's business, the employer's good faith, andthe employer’sprior history of violations.CompassEnvtl., Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010),aff'd,663 F.3d 1164 (10th Cir. 2011). Gravity is the primary consideration among these four criteria and is determined by “such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.”J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

The maximum penalty fortheseriousviolation hereis $13,260.29 C.F.R. § 1903.15(d)(3)(2019).The Secretary proposed asingle “grouped”penalty of$9,282fortheprovenviolationof § 1926.501(b)(1)andforthealleged violationof§ 1926.501(b)(3), which as discussed next the Secretary did not prove. Even though one of the two grouped violations was not proven, theundersigned nonethelessconcurs in the Secretary’s calculus for thefall protectionviolation that was provenand adopts the Secretary’sproposed penaltyfor the serious violation of§ 1926.501(b)(1).(T. 143-44). Accordingly, apenalty of $9,282 is assessedfor Citation 1,item3a.

Fall Protection inHoist Area(§1926.501(b)(3)—Citation 1, Item 3b)

Citation 1,item 3b,alleges aserious violation of § 1926.501(b)(3), which providesin relevant partas follows:“Each employee in a hoist area shall be protected from falling 6 feet (1.8 m) or more to lower levels by guardrail systems or personal fall arrest systems.”The Secretary alleges thatSkyline violated this standardon or about April 9 and April 10, 2019,when“[a]n employee hoisting materials and equipment to the roof was not protected from falling approximately 130 feet by any type of fall protection system.”The Secretary’soriginaltheory of thisallegedviolation was thatthe decedent, notMr.Aucanshala,was the employeewho had violated the standard.19 (T.186).

The standard requiresthatan employee working in a hoist area be protectedfromfalling sixfeetor moreto lower levelsby either a guardrail system ora PFAS.AJaen employee hoisted buckets loaded with construction materials from a location nearthefixed ladder at theroof’s unprotected edge. The area where the employee hoisted the materialsconstituted a “hoist area” within the meaning of the cited standard.(Exs. J-3,J-4).The standard applies totheemployee’sactivity ofhoisting the materialsfrom that hoist area.

The standard requires that employeesin a hoist areabe protected from fallingbyeither a guardrail system orPFAS. Noguardrail systemwas in place at the worksite. Andthe equipment that would be necessary to provide a compliant PFAS for the decedent was not present at the worksite. (Findings of Fact ¶ 43;T.13,52-53, 127, 221-22). Even so,the record evidence is insufficient to establish that the decedent, and notAucanshala,hoistedthe materialsfromtherooftophoist area. It is plausible that thedecedentcomplied with Sanchez’s instruction thatheremain on the balconywhileAucanshalahoistedupmaterialstothe rooftop,and that the decedentclimbed up to theroofonly afterAucanshalahad finished hoistingallthe materials. The record evidence isthusinsufficient to establish by a preponderance that the decedentwas in the hoist areaon the rooftop. Cf. Home Depot #6512, 22 BNA OSHC 1863 (No. 07-0359, 2009) (reversing as unsupported by a preponderance of the evidence a Commission judge’s finding of fact that aHomeDepot parking lot employee had sustained a head injury in a fall in the store parking lot, where the employee had been discovered unconscious on the ground of the parking lot andlaterdied from “blunt head trauma”).The record evidence is therefore insufficient to establish that the Jaen employees violated the “hoist area” standard in the manner alleged. The Secretary having failed to prove non-compliance with the cited standard, the alleged violationof § 1926.501(b)(3) must be vacated.20

Hazard CommunicationStandard (HCS)CitationItems(§§ 1910.1200(e)(1), (h)(1) & (g)(1)– Citation 2, Item 1; Citation 1, Items 1a and 1b)

Skyline’sStatus as“Creating Employer”

An employer at a multi-employer worksite who creates a cited hazardis regarded to be a“creating employer” andhas a dutyunder section 5(a)(2) of the Actto protectnot only its ownemployeesfrom the hazard but alsothe employees of other employers who are engaged in the common undertaking. McDevitt St.Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000);MECP§ X.B.1 (defining a“creating employer” as “[t]he employer that caused a hazardous condition that violates an OSHA standard”).

Althoughacontrollingemployer’s duty to the employees ofanexposing employer is not as stringent asanexposing employer’s dutyto its own employees,21acreatingemployer’s duty to employees ofanexposing employer is certainly more stringent thanthat ofacontrolling employer. Commission precedent suggests that a creating employer’s duty to the employees of another employer is thenearequivalent,if not theequivalent, of the exposing employer’s duty to its own employees.SeeSmoot Constr.,21 BNA OSHC 1555, 1557(No. 05-0652, 2006)(“the employer who creates a violative or hazardous condition isobligatedto protect its own employees as well as employees of other contractors who are exposed to the hazard”);see alsoSummit Contractors, Inc., 23 BNA OSHCat1207(finding the controlling/creating employer had constructive knowledge of the violative condition because it failed to“exercise reasonable diligence to discover the hazard”).

The Secretary asserts thatSkylineis responsible for the three alleged violations of the hazard communication standard(HCS),§ 1910.1200,asboththe controllingemployer at the worksite and asacreating employerof the allegedHCSviolations.22 (Sec’yBr. 32-33).

As discussed below, a preponderance of the evidence establishesthatSkylineis responsible for thethree HCS violations in its roles as botha creatingemployerand as the controllingemployerat the multi-employer worksite.As a creating employer, Skyline is responsible for its direct violations of the HCS. As a controlling employer, Skyline is responsible for Jaen’sviolations of thethree cited HCS provisions.

Citation 2, Item 1(Alleged Repeat Violation§ 1910.1200(e)(1))

Thehazard communication standard (HCS), § 1910.1200,“requires ...all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training.”§1910.1200(b)(1).

The requirements of the HCS, § 1910.1200,applyto construction workthrough 29 C.F.R. § 1926.59,“Hazard Communication,”which provides:“The requirements applicable to construction work under this section are identical to those set forth at[29 C.F.R.]§ 1910.1200.”

The HCS “applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.”§ 1910.1200(b)(2).

Skyline introduced the mortar containing a hazardous chemical to the worksite by providing it to the Jaen employees to use in the masonry work. (Findings of Fact ¶ 29; T. 12, 55). Skyline thereby caused the HCS to apply to the construction worksite and to all employers at theworksite whose employees “may be exposed under normal conditions” to that hazardous chemical. 

Citation 2, item 1, alleges a repeat violation ofsubparagraph(e)(1)of the HCS. Thatprovision(including itssubparagraph (i),whichisshown for completeness) provides:

(e)Written hazard communication program.(1)Employersshall develop, implement, and maintain at each workplace, a written hazard communication program which at least describes how the criteria specified in paragraphs (f), (g), and (h) of thissection for labels and other forms of warning, safety data sheets, and employee information and training will be met, and which also includes the following:

(i) A list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet (the list may be compiled for the workplace as a whole or for individual workareas)[.]

The Secretary allegesSkyline violated § 1910.1200(e)(1) inthat on or about April 9 and April 10, Skyline “did not develop a written hazard communication program for employees who use mortar for brick repair work.” 

Creating Employer Responsibility

Skyline was the creating employer of the alleged violation of § 1910.1200(e)(1).BecauseSkyline introduced the hazardous chemical to the worksite and thereforeknewthatthe hazardous chemical waspresent at its worksite,§ 1910.1200(e)(1)requiredSkylineto“develop, implement, and maintain” at that workplaceawritten hazard communication program(HCP)that addressedcertain specified matters. For multi-employer workplaces like the construction worksite herewhere “employees of other employer(s) may be exposed” to a hazardous chemical,Skyline’s writtenHCPwas required toaddress, among other things,(1)methods forsupplying employers of other employees with the safety data sheet for each hazardouschemicalto whichthose employees may be exposed [§ 1910.1200(e)(2)(i)], and also (2) methods toinform those otheremployersof any precautionary measures that need to be takento protect their employees[§ 1910.1200(e)(2)(ii)].23

Skylinefailed to comply with the cited standard as the creating employer because Skyline didnot“develop, implement, and maintain”atthe construction sitea writtenHCP as the standard required that it do. (Findings of Fact ¶ 30). 

Employees of another employer at the worksite (Jaen) were exposed to a hazardous chemicalfor which Skyline had not developed, implemented,or maintained at the worksite awrittenHCPthat conformed to the requirements of the cited standard, thereby exposingthose employees to the violative condition of Skyline’s failure to developand maintain at the worksitesuch anHCP. 

Skylineknew that it was introducing the hazardous chemical to the worksite,and ithad actual knowledge that it had not developed a written HCP addressing thathazardous chemical that it had introduced to the workplace.24

Skyline violated § 1910.1200(e)(1) in the manner alleged in Citation 2, item 1, and is responsible for that violation in its status of creating employer.

ControllingEmployer Responsibility

By virtue of Skyline’s introduction of the hazardous chemical to the workplace for the Jaen employees to use, Jaen was similarly requiredby § 1910.1200(e)(1)todevelop and maintain at the worksitea written HCP, the content of which was required to address the hazardous chemical that the Jaen employees would be using. Jaen had not developed or maintained at the worksite any such written HCP. The Jaen employees were exposed to that violative condition of their employer failing to develop a written HCP that addressed a hazardous chemical that they used in the workplace. Skylineknew, or in the exercise of reasonable diligence should have known,that Jaen had not developed or maintained at the worksite a written HCPthat addressed the hazardous chemical to the worksite,because Skylinehadintroduced the hazardous chemical to the worksite on the first day of work, and Skyline further knew that it had not previouslynotified Jaen that it would beintroducing thathazardous chemicalasSkylinewas required to do pursuant to§ 3.2.3 of its subcontract.Skyline failed to take any measures to obtain abatement of the violative condition. Skyline thus failed to meet its duty as the controlling employer to take reasonable measures to obtain abatement of Jaen’s known violation of § 1910.1200(e)(1) and is therefore responsible for Jaen’s violation in its status as controlling employer. StormForce, 2021 WL 2582530,at*6.

Serious and RepeatClassifications;Penalty

The Secretary alleges that Citation 2,item 1 should be characterized asbothserious andrepeated. (Compl.¶¶ VI & VII). The Jaenemployees were exposed to a hazardous chemical in the mortarwithout any componentsof a compliant HCPhaving been implemented. Their exposure to hazardous chemicalwithout the benefit of a compliantHCP could have resulted in injuryrequiring hospitalization. (T. 68, 71, 95-96). TheSecretary established the violation to have beenserious.

A violation may be deemed repeated “if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” PotlatchCorp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). Aprima facieshowing ofsubstantial similarityisestablished bya final order of the Commissionthat hadpreviously determinedthe employer to haveviolated the samestandard. Id.The employer may rebut suchaprima facieshowing“by evidence of the disparate conditions and hazards associated with these violations of the same standard.”Id.

OSHA had previouslycitedSkylinefor a violation of29 C.F.R. § 1910.1200(e)(1). (T. 14, 79-80; Ex. C-2). Skylineresolved that alleged violation byenteringintoaStipulated Settlement wherein Skyline accepted the alleged violation of§ 1910.1200(e)(1) as an “other than serious” violation. That violation became a final order of the Commission on April 23, 2018, less than one yearbeforethe violation here. The description of the prior violation is set forth inFindings of Fact ¶ 67, and from its phraseologyit isapparent that Skyline’s liability was grounded in itsstatus asthe“controlling employer.” But regardless of the theory of Skyline’s liability for thatprior violation,whether as controlling employer or otherwise,Skyline presented no evidence and hasmadeno argumenttorebut the prima facie showing that the prior violation and the violation here were substantially similar. The Secretary has establishedthe basisfor the repeat classification. 

The maximum penalty fortherepeatedviolation hereis $132,598. 29 C.F.R. § 1903.15(d)(2) (2019). The Secretary proposed a penalty of $10,608,afterarriving at a gravity-based penalty fortheviolationbased on a“moderate”gravity(“lesser”probabilityand“medium”severity),in partby assessing that employeeexposure to the hazardous chemical would nothavebeenlethal orhavecausedpermanent injury. (T. 95-96). Theproposedpenalty includeda 30%reductionto account for Skyline’ssmallersize andprovidedno adjustments foreithergood faith or historyof violations.(T. 96). This wasSkyline’sfirst repeated violation of the cited standard,and sounder the Secretary’s penalty protocol for repeated violations, thecalculatedgravity-based penalty was doubled. (T. 96). Theundersigned concurs in and adopts theSecretary’spenalty calculus. Accordingly,apenalty of $10,608 is assessed for Citation 2,item 1.

Safety Data Sheet(§ 1910.1200(g)(1)--Citation 1, Item 1a)

Citation 1,item 1a, allegesa serious violation of 29 C.F.R. § 1910.1200(g)(1), which providesin relevant part as follows:“Employers shall have a safety data sheet in the workplace for each hazardous chemical which they use.” The Secretary allegesthat Skyline violated this standard onApril 9and10becauseSkyline“did not have safety data sheets for mortar which was used by employees for brick repair work.”

Creating Employer Responsibility

The HCS defines the term “use” as follows:“Usemeans to package, handle, react, emit, extract, generate as a byproduct, or transfer.” § 1910.1200(c). Skyline“used”the mortar containing the hazardous chemical at the worksiteand soparagraph (g)(1) of the HCSrequiredSkylinetohave a safety data sheet (SDS)for the mortarat the worksitetobeavailable to employeeswho may beexposed to themortar. Skyline did not have an SDS available at theworksite. Employeesat the worksite used the mortar in performing the repairs and were thereby exposed tothe violative condition of using mortar containing a hazardous chemical without having an SDS for the mortar available to them. Skyline had actual knowledge thatit had not madean SDSavailable to the employees who were to use the mortar.(Findings of Fact ¶¶ 29-32). Skyline violated § 1910.1200(g)(1) in the manner alleged in Citation 1, item 1a, and is responsible for that violation asthecreating employer of the violative condition.

Controlling Employer Responsibility

By virtue of Skyline’s introduction of the hazardous chemical to the workplace for the Jaen employees to use, Jaen was similarly required byparagraph(g)(1)of the HCSto have an SDS for the mortar available to its employees at the worksite. Jaendid nottakeanymeasuresfordoing so, and so the employees were exposed to the violative condition of using the mortar without having an SDS available to them. Skyline knew, or in the exercise of reasonable diligence should have known, that Jaen did not have an SDS for the mortar available at the worksite for the Jaen employeesbecauseSkyline knew that it had not previously notified Jaen that it would beproviding Jaen withmortar containing ahazardous chemical. Skyline was requiredtoinform Jaen of thispursuant to § 3.2.3 ofthesubcontract. Skyline failed to take any measures to obtain abatement ofJaen’sviolative condition(or to abate its own violation as a creating employer). (Findings of Fact ¶¶ 29-32). Skyline thus failed to meet its duty as the controlling employer to take reasonable measures to obtain abatement of Jaen’s known violation of § 1910.1200(g)(1) and is therefore responsible for Jaen’s violation in its status as controlling employer. StormForce, 2021 WL 2582530,at*6.

Employee Information and Training(§ 1910.1200(h)(1)--Citation 1, Item 1b)

Citation 1,item 1b,allegesa serious violation ofparagraph(h)(1)of the HCS, which provides:

(h)Employee information and training. (1) Employers shall provide employees with effective information and training on hazardous chemicalsin their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area.Information and training may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or specific chemicals.Chemical-specific information must always be available through labels and safety data sheets.

The Secretary alleges that Skylineviolated this standard on April9and 10because it“did not provide employees with information or training regarding the hazards associated with mortar that was used by employees for brick repair work.”

Creating Employer Responsibility

Thecited standard required that Skyline provide training and information to the Jaen employees respecting themortar containing a hazardous chemical that Skyline provided the employees to use on the project. Skyline provided no such training or information and took no measures to determine whether Jaen had provided any such training and information to its employees. Skyline further took no measures to inform Jaen thatSkylinewould be introducing the mortar to the worksite as it was required to do pursuant to § 3.2.3 ofthesubcontract, and thusSkyline had no basis for concludingthat Jaen would have provided its employees with any such information and training about the mortar. Employees at the worksite used the mortar in performing the repairs and were thereby exposed to the violative condition of using mortar containing a hazardous chemical without havingreceived the information and training required by the cited standard. Skyline had actual knowledge that it had notprovided any information and training about the mortarand had actual knowledge that Jaen had not informed Skyline that Jaen had provided its employees with any such information and training. (Findings of Fact ¶¶ 33-35). Skyline violated § 1910.1200(h)(1) in the manner alleged in Citation 1, item 1a, and is responsiblefor that violation as the creating employer of the violative condition.

Controlling Employer Responsibility

By virtue of Skyline’s introduction of the hazardous chemical to the workplace for the Jaen employees to use, Jaen was similarly required by § 1910.1200(h)(1) toprovide to its employees the information and training about the mortar that is required by that standard. Jaen did notprovide that required information and training,and its employees were thereby exposed to the mortar without the benefit of the information and training that the standard requires. Skyline knew, or in the exercise of reasonable diligence should have known, that Jaenhad not provided the information and training required by the cited standardbecause Skyline knew that it had not previously notified Jaen that it would be providingthemortar for theJaenemployeesto useas Skyline was required to do pursuant to § 3.2.3 ofthesubcontract. (Findings of Fact ¶¶ 33-35). Skyline thus failed to meet its duty as the controlling employer to take reasonable measures to obtain abatement of Jaen’s known violation of § 1910.1200(g)(1) and is therefore responsible for Jaen’s violation in its status as controlling employer. StormForce, 2021 WL 2582530,at*6.

Classificationsand Penalty(Grouped Items 1a & 1b, Citation 1)

The Secretary allegesthat both items 1a and 1b ofCitation 1 should be classifiedas serious. The employees were exposed to a hazardous chemical in the mortarwithout having available to them the mortar’s SDS or having received information and training about the hazards of the mortar as the standards required. Their exposure to those violative conditions could have resulted in injuryrequiring hospitalization. (T. 68, 71, 95-96). The serious classificationsareaffirmed forboth items 1a and 1b ofCitation 1.

The maximum penalty fortheseriousviolationshereis $13,260.29 C.F.R. § 1903.15(d)(3) (2019). OSHAproposed grouping the penalties for the two violationsto assess asinglegroupedpenalty of $5,304. (T. 75-76). TheSecretary’s calculus for that proposedpenalty was based on“moderate”gravityin consideration of theintermittent use of themortarover two days and because lethalor permanentinjurieswere unlikely. (Tr. 71-72, 95-96). Theproposedpenaltyincludeda 30% reductionof the gravity-based penalty to account forSkyline’s sizebut included no reductionsfor good faith or history. (T. 68-69). The undersigned concurs in and adopts the Secretary’s penalty calculation for grouped items 1a and 1b of Citation 1.

Agroupedpenalty of $5,304is assessedfor Citation 1, items 1a and 1b.

Worksite Inspections(§ 1926.20(b)(2) – Citation 1, Item 2)

Citation 1,item 2, allegesa serious violation of§1926.20(b)(2). That provision providesas follows (with paragraph (b)(1)includedforcontext):

(b)Accident prevention responsibilities.(1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with[29 C.F.R. part 1926].

(2)Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.

TheSecretary alleges thatSkyline violated this standard on or about April 9andApril 10when“a competent persondid not perform frequent and regular inspections of the jobsite and equipment.”TheSecretary argues that“Skyline did not exercise reasonable diligence to ensure that a competent personfrom Jaenwas inspecting the Worksite.”Sec’y Br. 56(emphasisadded). The Secretary’s theory of the violation thus appearsgrounded onSkyline’sliabilityas the controlling employerfor Jaen’s violation of the cited standard. SeeFama Constr., LLC, 2023 WL 2837610, at *4(involving a controlling employer’s alleged violation of § 1926.20(b)(2)andobserving:“On a multi-employer worksite, a controlling employer isliable for a contractor’s violationsif the Secretary showsthat [the controlling employer] has not taken reasonable measuresto prevent or detect and abate the violations due to its supervisory authority and control over theworksite”[emphasisadded]). For Skyline to be found liable as controlling employer for Jaen’s violation, the Secretary must first prove that Jaen failed to comply with the cited standard.

The term "competent person”as employed in the cited standard means“one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.” § 1926.32(f). There is some evidencethatthe decedent, if notalsoAucanshala, had receivedsufficient formaltrainingtoenablehim to function as a “competent person” at the worksite. (T.361-62, 369-70;Exs. R-1 & R-2).

The evidence is not preponderantthatJaenviolated the cited standard by failing toestablish a program for the frequent and regular inspections of worksites by a competent person as the standard requires, or that Jaen had failed todesignateAucanshalaand/or thedecedent toact as“competent persons”to performsuchfrequent and regularinspectionsat the worksite.There is no direct evidence Jaen violated the standard byfailing to designate one of the employees to act as acompetent persontomake frequent and regular inspections of the worksite. This is so even thoughJaen’scatastrophic violation of thefall protection standardisnear conclusive evidence thatneither employee wasdischarging the responsibilities of acompetent personat the worksite. Violationsof other standardsmayconstitute circumstantial evidence that Jaen had not complied with thecitedstandard, butproof of such other violationsitis notconclusiveevidence of a violation of§ 1926.20(b)(2).SeeBarnhart, Inc.,No. 10-0108, 2011 WL 6284749, at *5 (OSHRC ALJ,May 20, 2011)(stating that controlling employer liability for a violation of § 1926.20(b)(2)“is not established by evidence violative conditions existed at the worksite,” but rather “isestablished by evidence showing no competent person made frequent and regular inspections of the worksite”);cf.Superior Masonry Builders, Inc.,No. 96-1043, 2003 WL 21525277, at *8 (OSHRC July 3,2003) (findingthe lead laborer on a work crew “was not a competent person” because he had not been “instructed about the specific hazards presented” by the work activity that he was directing “and thus was not capable of identifying the hazard”).Whilethecircumstantial evidencewouldreasonablysupportaconclusion thatJaen had failed tocomply with the cited standard, thatcircumstantialevidence isfound notto bepreponderant. Cf. Dade Builders Contractors, Inc.,No.19-0988,2020 WL 2612201, at *7 (OSHRC ALJ, Apr. 13, 2020)(finding insufficient evidence that subcontractor had failed to comply with § 1926.20(b)(2) and thus insufficient to hold thegeneral contractorliable for the alleged violation ascontrolling employer).Theevidence that Jaen did not comply with the cited standard not being preponderant,thereexists no predicate violation on which to holdSkyline responsibleas the controllingemployer.25 Citation 1, item2,istherefore vacated.

ORDER

The foregoingincludesfindings of fact,conclusions of law, and the reasons or bases for them,on all material issues of fact, law, or discretionpresented on the record, in accordance withCommission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1).Based upon the foregoing findings of fact and conclusions of law, it is ORDEREDthat:

1.Citation 1,Item1a,allegingaseriousviolationof29C.F.R.§1910.1200(g)(1),is AFFIRMED, andCitation 1,Item1b,allegingaseriousviolationof29C.F.R.§1910.1200(h)(1), is AFFIRMED. Asinglepenalty of $5,304is assessedfor thetwo groupedviolations.

2.Citation 1,Item2,allegingaseriousviolationof29C.F.R.§1926.20(b)(2),having not been proven,isVACATED.

3.Citation 1,Item3a, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1),is AFFIRMED, and apenalty of$9,282 is assessed.

4.Citation 1, Item 3b, alleging a serious violation of29 C.F.R. § 1926.501(b)(3), having not been proven, is VACATED.

5.Citation 1,Item4,allegingaseriousviolationof29C.F.R.§1926.502(d)(6)(i),having not been proven,is VACATED.

6.Citation 2,Item 1, alleging aserious andrepeatedviolation of 29C.F.R.§1910.1200(e)(1), is AFFIRMED, and a penalty of $10,608 is assessed.

    William S. Coleman           

WILLIAM S.COLEMAN

Administrative LawJudge

Dated: September 12, 2023

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1 The parties had agreed that both Skyline and the Secretary would conduct their respective direct examinations of Mr. Sanchez(for the purposes of their respective cases-in-chief)upon Skyline presenting his testimony during Skyline’s case-in-chief. That agreement was made so that Mr. Sanchez would be called to testify just one time, rather than two separate times in each party’s respective case-in-chief. (Jt. Preh’rg Stmt. 16; T. 406-07). 

2 In addition to intending topresent Mr. Sanchez as witness during the presentation ofthe Secretary’scase-in-chief, the Secretary sought also to introduce in evidence a memorandum dated May 16, 2019, that Special Investigator Ross Hoffman of the New York City DOI had prepared. The memorandum sets forth Hoffman’s account of what Sanchez said during the interview that Hoffmanand the COhad conducted about five weeksearlieronthe day of the fatal fall,April 10. That memorandum was marked for identification as Exhibit C-1. The undersigned sustained Skyline’s objection to the admission of Exhibit C-1, ruling that the memorandum itself did not qualify as an exception to the hearsay rule as a business record because it had not been made at or near the time of the event as required by FederalRule of Evidence803(6)(A). (T. 230-31). Nevertheless, both CO Huang and Special Investigator Siguencia, who translated the questions and answers during the April 10 interview, were permitted to testify to their recollections of what Mr. Sanchezhadsaid during the interview. Their testimony ofwhatMr. Sanchezsaidduring theinterviewdoes notconstitutehearsayunder Federal Rule of Evidence 801(d)(2)(D). (T.232-34).

3 All referenceshereintodates inAprilpertain to theyear 2019.

4 The determination that the width of the balcony was less than four feetin thispart of the balconyis based upon the photograph at Exhibit J-10 that shows thedimensions of thebalcony’s floor tiles to be approximately 18x18 inches based on the scaleindicatedby the five-gallon bucket in the photo. (T. 146).

5 During the investigation,the CO twice askedthe individual who was acting as the representative for both Skyline and for Jaento provide thewritten HCPs of each company. After getting no response to his first request, the CO informed the representative in his second requestthat if noHCPs wereprovided, he would conclude thatneither company had one. (T.58, 74, 77-78). Thatrepresentativecontacted Jaen’sowner andsole officer and asked to be provided Jaen’s HCP, butJaennever providedan HCP to the representative.(T. 398-99). At the hearing, Skyline did not offerintoevidence any written HCP for Skyline or for Jaen(whether conforming or non-conformingto§ 1910.1200(e)(1)),and there was no testimonial evidence that either company had developed aconforming or non-conformingwritten HCP.

6 The violations alleged against both Skyline and Jaen in the separate citations were identicalin their form and languageexcept that one of the citation items issued to Skyline was alleged to have been a repeated violation, and so the grouping of the alleged violationswas different, as were the proposed penalty amounts. Papersfiled with the Commissionin Jaen’s contest of the citationdo not reflect the agreed classifications of the seven citation items or the agreed penalty amounts.

7 The findings in¶ 66are based on official notice of the case filings in Commission Docket No. 19-1796, which is the docket number assigned to Jaen’s contest of the citation issued to it in connection with OSHA inspection number 1392258 that was precipitated by theinspection and investigation into thefatal fall on April 10, 2019. See Keating Bldg. Corp., No. 04-0774, 2006 WL 508323, at *1 n.1 (OSHRCALJ February 2, 2006) (taking judicial notice of documents filed inadifferent Commission proceeding);accord Copomon Enters., LLC, 24BNA OSHC2177, 2179 n.1(No. 13-0709, 2018)(ALJ).Such notice is taken subject to the provisions of Federal Rule of Evidence201(e) and 5 U.S.C. § 556(e), which provide the parties the opportunity to challenge thepropriety of takingsuchnoticeand the opportunity to show the contrary. SeeL & L Painting Co., Inc., 22BNA OSHC1346, 1349(No. 05-0050,2008). Any objection to such official notice should be raised with the undersignedprior to the date the decision and report is to be filed with the Commission’s Executive Secretary for docketing pursuant to Commission Rule 90(b)(2).

8 At the hearing and in post-hearing briefing, the Secretary asserts also thatas to some,but not all,citation items,Skyline also had thestatuses of “correcting” and/or “creating” employer under theMECP. Allcontentionsrespecting Skyline’s status as controlling, correcting, orcreating employer are adjudicated in this decision.ButSkyline’s alleged status as “exposing” employerby dint of being the common-law employer of the Jaen employeesis not adjudicated. SincenoSkyline employees were exposed to the alleged violations,Skylinecouldbe deemed the“exposing” employer onlyif Skyline were determined to have been the common-law employer of the Jaen employees.

9 The Secretary’sMECP(OSHA Instruction CPL 02-00-124)was identified in the joint prehearing statement as a potential hearing exhibit, but neither party offered it in evidence. However, both parties have cited to theMECPin their respective post-hearing briefs. The undersigned regards these arguments toamount toan implied joint request to take judicial notice of the writtenMECPpursuant to Federal Rule of Evidence201. That impliedjointrequest is granted.

10 The Secretary had stipulated on the record, mere minutes beforemaking thisopening statement,that the two workers performing the repairs were employees of Jaen,which prompted the undersigned at the conclusion of the opening statement toquerythe attorneyabouttheSecretary’s newly stated“joint employer”theory.(T. 25-26).

11 If Skylinehad beendetermined tohave beenresponsible for the alleged violationsas the exposing employer,thenconceptuallyJaencouldnotalsohavebeen the“exposing employer” and wouldnothaveborneany of thecompliance obligations ofan“exposing”employer.SeeFroedtert, 20 BNA OSHC at 1508 n.4 (declining to address “joint employer” theory of responsibility under the OSH Actthatwould impose uponboththecommon-law (host)employerof temporary workers and the staffing agency that provided the temporary workerswiththeshared responsibility tocomply withOSHAstandards);MLB Indus., Inc., 12 BNA OSHC 1525, 1530 n.12 (No. 83-231, 1985) (determining theborrowing employerwasthe employer of loaned employees for purposes of the Act, anddeclining toimpose “duplicative liability” for the violations onboth theborrowing employer and the loaning employer).Thus, holdingSkyline responsible as the “exposing employer”would beconceptuallyincongruouswith the(nearly)identical citation that was issued to Jaen that was grounded inJaen’s alleged statusunder the Secretary’sMECPasthe“exposing” and/or “creating”employer.(As notedat the outset, Jaen resolved that citation by entering into a formal settlement agreementin which it accepted all seven alleged violations.)

12 These examples of variancesbetween theterms of thesubcontract and its actual performanceareprovidedunder theoperativepresumption thatthe subcontracthad been the product of anarms-length transaction between Skyline and Jaen. See Transaction, Black's Law Dictionary (11th ed. 2019)(defining “arm's-length transaction” as follows:“1. A transaction between two unrelated and unaffiliated parties. 2. A transaction between two parties, however closely related they may be, conducted as if the parties were strangers, so that no conflict of interest arises”). 

It is worthy of note, however, thatrecordevidence(along withsomeevidence that was notadmittedin evidence)wouldsupport a reasonable suspicion that the subcontracthad notbeenthe product of an arm’s-length transaction,andfurtherthat Skyline and Jaennever intended or expectedtheirperformance to conform to the subcontract’s terms. Information that wouldsupport such a reasonable suspicionincludesthe following:

·The sole owner and sole officer of Jaen ismarried to thevice-presidentofSkyline, andJaen’s owneris the only individual at Jaenwhopossessesmanagerial or supervisory authority. (Findings of Fact ¶ 8).

·Skyline’s project manager (Rueda)hadpreviouslyacted as the project managerforotherprojects involving Jaen at least a “few” times. (T. 418-22). Ruedahad never heard the nameof the only individual at Jaen whohassupervisory authority—Jaen’s ownerand sole officer.(T. 107). Ruedadid not communicate with any Jaen supervisory personnel in connection with thissubcontract,and he could not identify any Jaen supervisory personnelby name,although heclaimedthat he hadhadcontact withJaensupervisory personnel in connection with Jaen’swork onpreviousSkyline projects.(T. 419-22).

·Prior to this project, Skyline had subcontracted work on its projects to Jaen on multiple subcontracts (Finding of Fact¶ 9;T. 260-61,390-91,417-19),presumably utilizing the same standard subcontract form thatSkylineused for this project(T. 264, 308, 313),which requires the subcontractor(Jaen)to assign an experienced foreman to be approved by Skyline. Skyline subcontracted with Jaen multiple times even thoughJaen’s performance of thoseprior subcontracts likely would have revealed to Skyline that Jaen does not employ any supervisory foremen, and thus that Jaen would not comply with the provision requiring Jaen to “assign an experienced and capable foreman, approved by [Skyline’s] project management.”

·Skyline supervisors sometimes assign the employees of its subcontractors, including Jaen, towork on differentSkylineprojects, depending on Skyline’s requirements and needs. (T.424-25).

·Thesubcontract sum($1,800)appearspotentiallyundervaluedrelative to thegeneral contract sum($4,400),considering that Jaen was responsible for performance of the entire scope of work, to include providing all materials, equipment, and supervision.

·Jaen identified Andromeda to be its representative over the course of OSHA’s inspection and investigation, even though Jaen is not one of those companies for which Andromeda hasan arrangement to provide administrative services(as Andromeda providestoSkylineandtoother contractors).

·Andromeda and Skyline are affiliated companies (Andromeda’s in-houseattorneytestified that he did notknowthe nature of the affiliation,althoughhe confirmed that that the two companies share office space). The only Skyline employee to testifyat the hearingwas the project manager Rueda. The other two witnessesthatSkylinepresentedwere both employees of Andromeda (Andromeda’sin-house attorney, anditsSeniorRiskManager).

·Andromeda identified the same individual (itsSeniorRiskManager, Ms. Perez) to be the point of contact for OSHA officials in Andromeda’s dual representation of both Skyline and Jaen in the OSHA inspection and investigation. (T. 393-95). As the SeniorRiskManager for Andromeda, Ms. Perez regards herself to serve in that same capacity forallcontractorsto whichAndromeda provides administrative services(which includes Skyline). (T. 399-400).

·After the separate citations were issued to Skyline and Jaen,two differentin-house attorneys for Andromeda filed separate notices of conteston behalf ofeach. (See suprafootnote 7, as to official notice of the filings in OSHRC Docket No. 19-1796).

·One of the decedent’s training credentials was from Andromeda Academy, which is a related company to Andromeda. (Ex. R-1 at 3). 

·Mr. Aucanshala, the other Jaen employee working on the rooftop, was purported to have said during an investigative interview that was conducted at a police station on the day of the fatal fall that he had been employed bySkylinefor eight years (but that he received his paycheck from Jaen, even though he does not know anybody from Jaen), that he reports on a daily basis toSkyline’sproject manager (Rueda), and that both he and the decedent were assigned toSkyline’s“emergency repair unit,” which works on projects that usually take only a few days to complete. (The written memorandum of this interview [Ex. C-4 for identification], as well the testimony of the CO andSpecial InvestigatorSiguencia regarding their recollections of what Aucanshala had said in the interview, werenot admitted inevidence on hearsay groundsas describedinfraatfootnote15, except to the extent that Skyline was ruled to have “opened the door” to the CO’s hearsay testimony as to some of what Aucanshala had said in that interview [T. 191-92].)

13 The Commission has indicated that whether the measuresthat a controlling employer hastakento obtain abatementofaknownsubcontractor’s violationhavemetthe controlling employer’sduty toexercise reasonable carewilldepend on the circumstances, but thatadequate“reasonable measures” could be as simple as making a “mere request” that the subcontractor abate the violation. SummitContractors, 22 BNA OSHCat1781, n.11. However,somesituationsmightdemandthatthe controlling employer taketoughermeasures,“such astemporarily or permanently barring from the premises specific individuals who, after warning, repeatedly violate[a standard], suspending the subcontractor's work, withholding progress payments, or terminating the contract.” Id.

14 With respect to acontrolling employer that does not have actual knowledge of a subcontractor’s violations, the factors that the Commission considersin determiningwhetherthe controlling employer hadexercisedreasonable careare the same factorsthe Commission considers indeterminingwhethersucha controlling employerhad constructive knowledge of the violative conditioninadjudicatingthe “employer knowledge” element of the Secretary’s prima facie case. SeeSuncor, 2019 WL 654129,at *4, *5–10 (noting further that “[t]oestablish constructive knowledge, the Secretary must prove that the employer, with the exercise of reasonable diligence, should have known of the hazardous condition”);cf.Summit Contracting Grp., Inc., 2022 WL 1572848, at *7 n.13 (finding “it inappropriate to analyze the adequacy of[a controlling employer’s]own safety program as an independent basis for proving[the controlling employer’s]constructive knowledge” of a subcontractor’s violation). Thus,where the Secretary proves that a controlling employer hadconstructive, but not actual,knowledge of a violative conditionin proving the elements of the alleged violation, the Secretaryhasnecessarilyalso proventhat the controlling employerhadfailed to satisfy its dutyas the controlling employerto exercise reasonable care to prevent or detect thatunknown violation.

15 The attorney for the Secretary made an offer of proofat the hearingpursuant to Commission 72(b) that if the CO had been permitted to testify to what Aucanshala had said during the CO’s investigation, then the CO would have testified that Aucanshala had described having violated§ 1926.502(d)(6)(i) in the manner alleged. (T. 164). The undersigned had previously sustained Skyline’s objection to the CO testifying to what Aucanshala had said to him, as well as to the admission of a written memorandum dated October 9, 2019, that Special Investigator Ross Hoffman of the New York City Department of Investigation had prepared. That memorandumsetsforth Hoffman’s account of the in-person interview of Aucanshala that he and CO Huang conducted on the day of the fatal fallsixmonths earlier. That memorandum was marked for identification as Exhibit C-4 but was ruled inadmissible because it did not qualifyunder the business recordexception to the hearsay rule because it had not been made at or near the time of the interview, as Federal Rule of Evidence803(6)(A) requires.(T. 165-66). 

Even if the memorandum had qualified for admission under Federal Rule of Evidence803(6) or some other exception to the hearsay rule, the statements attributed to Aucanshala set forth therein are themselves hearsay and could not have been accepted for their truth unless what Aucanshala was reputed to have said conformed to an independent exception to the hearsay rule. SeeF.R.E. 805 “Hearsay within hearsay.” Contrary to the argument of the Secretary, Aucanshala’s reputed statements as recounted in Exhibit C-4 (or as independently recalled by either the CO or the interpreter, who both participated in the interview) do not qualify as non-hearsay under Federal Rule of Evidence801(d)(2) because Aucanshala had not been established to have been Skyline’s agent or employee within the meaning of 801(d)(2)(D). Moreover, the hearsay statements attributed to Aucanshala in the memorandum could not berelied upontoestablishthat Aucanshala was Skyline’s agent or employee for purposes of categorizing those statements as non-hearsay under Federal Rule of Evidence801(d)(2)(D). (T. 238-40). SeeFed. R. Evid. 801(d)(2) (providing that the “statement ... does not by itself establish ... the existence or scope of” an employee or agent relationship under 801(d)(2)(D));Reed Eng'g Grp., Inc., 21BNA OSHC1290, 1291(No. 02-0620, 2005) (“beforeallowing testimony in under Rule 801(d)(2)(D), the judge must be satisfied that an agency relationship exists between the declarant and the employer against whom the testimony is being offered” [emphasisadded]).

The undersigned also determined the memorandum and any testimony from the CO or the interpreter about what Aucanshala said in the interview had not been established to qualify for admission under the residual exception to the hearsay rule set forth in Federal Rule of Evidence807. (T. 154, 159-60, 163, 240).

16 The SecretaryarguesthatSkylinehas responsibility for thethreeallegedfall protection violationsnot only in its status as the “controlling” employer but alsoasa “correcting”employer. (Sec’yBr.31-32). The Secretary’sMECPdefines “correcting employer” asfollows:“Anemployer who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintainingparticular safety/healthequipment or devices.”MECP ¶X.D.1. (The undersigned notes that the Secretary has not cited to any Commission precedent that explicitly recognizes a “correcting employer” theory of responsibility, and the undersigned has located none.) 

WhileSkyline undertook to installfall protection anchors and a guardrail system on the rooftop,Jaen hadcontractual responsibilityto providefall protectionat the worksite. As far asthe record shows,Skyline had no contractual responsibility to do so. And so,Skyline’s failed endeavortoprovide andinstall the fall protectionequipmentdoes notimpressupon Skylinethe status of“correcting employer.” Rather,Skyline’sfailed effortbears onthe issue ofwhetherSkylinemet its obligation asthecontrolling employer toexercise reasonable care to prevent or detectand abateJaen’s allegedfall protection violations.

17 The Secretary argues in post-hearing briefs that Aucanshala also violated the cited standard on April 9 and 10. (Sec’yBr. 40; Sec’yReply Br. 16-18). However,having failed to establish Citation 1, Item 4 alleging that Aucanshala was utilizing a non-compliant PFAS on either April 9 or 10, the Secretaryhas similarlyfailed toprove that Aucanshala violated § 1926.501(b)(1) on those days. 

18 The other two fall protections systems that would meet the cited standard’s requirements—a safety net system or a guardrail system—were not place on the rooftop on the day of the fall, so a compliant PFAS would have been the only other alternative for providing the decedent with compliant fall protection on the day of the fatal fall. (Findings of Fact ¶ 48).

19 The Secretary arguesin its post-hearing briefsthatifAucanshalahad done any hoisting of the materials to the rooftop, he would have been violatingthe “hoist area” standard. (Sec’y Br.42-43; Sec’y Reply Br. 16-17).However, as discussed in connection with the alleged violation of § 1926.502(d)(6)(i), the Secretaryfailed to prove thatAucanshala wasnotprotected by acompliantPFASwhile he was working on the rooftop, and sothe evidence similarly fails to establish thatAucanshalaviolated the hoist area standardwhilehoistinganyof the materialsto the rooftop.

20 Theapparent factual basis for theSecretary’s theory of thealleged “hoist area”violation waswhatAucanshalaisreported to have said tothe CO andlocalinvestigators on the day of the fatal fall, whichwas documented ina memorandum marked for identification asExhibitC-4(andnot admitted into evidence as describedsuprain footnote15). That memorandum of theAucanshala’sinterview statesin part as follows:

Priorto the day of theincident,[Aucanshala]and[decedent]were tasked with bringing the new bricks up tothe roof for the replacement of the older ones.He stated that this was about one hundred and fifty(150) bricks that were to be replaced along.[Aucanshala]stated that[decedent]was a helper for the company and that he would[help][Aucanshala]on a daily basisand that[decedent]was still learning theconstruction trade.At the time of the incident,[Aucanshala]was working on the northwest column atthe base of the water tower.He was replacing the bricks and replacing the waterproofingmaterials at the base.Furthermore,[decedent]was tasked with bringing the bricks up to the column ofthe water towerfrom the lower roof.[Decedent] wasplacing the bricks in a“Bucket”on the lower roof,than[sic]would climb the ladder to the water tower, and“Pull”the bucket up to the base of the watertower with a rope that was attached to the base of the water tower and empty the bucket ofbricks.In theory, they were hoisting the bricks up to the water tower in the bucket.[Aucanshala] stated that he did not notice that [decedent] has fallen off the roof.Throughout the day, [decedent] wasgoing up and down the ladder without any issues.[Aucanshala]only noticed that[decedent]had fallenwhen the door attendant of the building had rushed up to the roof to notify him that someone hadfallen.[Aucanshala]than[sic]realized that it was[decedent]who had fallen off the roof while he was workingon the water tower.[Aucanshala]stated that while he was working on the roof, he was always "Tied-off" and would always were[sic]a harness.He was "Tied-off'”to the cross brace of the water tower.[Aucanshala]stated that[decedent]was not wearing a harness at the time of the fall, and he was not tiedoff to anything.

As describedsuprain footnote15, the undersigned sustained Skyline’s objection to the admission of Exhibit C-4,andfurthersustained Skyline’s objectionto testimony from the CO andthe interpreterabout what Aucanshala had saidin the investigative interview. Accordingly, Aucanshala’s purported statementshavenot been relied upontosupport any findings of fact or conclusions of law herein. Nevertheless, the undersignednotesfor the benefit ofany reviewing tribunalthatiftheundersignedis determined to haveerred in excluding Exhibit C-4fromevidence, thenupon consideration ofExhibit C-4 and the evidentiaryrecord asawhole, the undersigned would have found that a preponderance of the evidence had established that the decedent’s activityhadviolated§ 1926.501(b)(3) in the manner alleged in Item 3b of Citation 1. The undersigned would havefurtherfound Skyline responsible for the violation as the controlling employerbased upon Skyline having constructive knowledge of the violative condition. The undersigned further would haveclassified the violation to have been seriousand would have adopted the Secretary’s proposed penalty by grouping the penalty withthepenaltyassessedfor Citation 1, item 3a [§ 1926.501(b)(1)].

21 See Fama Constr., LLC, No. 19-1467, 2023 WL 2837610, at *2 (OSHRC,Mar. 29, 2023) (noting that the standard required of an exposing employer is “more stringent” than the standard required of a controlling employer).

22 Anexample ofacontrollingemployeralso being a creatingemployer is where thecontrollingemployer has created a hazard by causing“noncompliant equipment to be brought onto the construction worksite.”SeeSummit Contractors, Inc., 23 BNA OSHCat1206(general contractorthat hadsecured faulty equipment, brought it to worksite, and required subcontractor to use the equipment, held responsiblefor the violationas boththecontrollingemployerandthecreating employer). Another example is the controlling employercreatinga non-compliant excavation and then failing to take adequate actions to prevent employees of subcontractors from entering it. SeeSmoot Constr.,21 BNA OSHC 1555(No. 05-0652, 2006).

23 Section 1910.1200(e)(2) provides:

(2)Multi-employer workplaces.Employers who produce, use, or store hazardous chemicals at a workplace in such a way that the employees of other employer(s) may be exposed (for example, employees of a construction contractor working on-site) shall additionally ensure that the hazard communication programs developed and implemented under this paragraph (e) include the following:

(i)The methods the employer will use to provide the other employer(s) on-site access to safety data sheets for each hazardous chemical the other employer(s)' employees may be exposed to whileworking;

(ii)The methods the employer will use to inform the other employer(s) of any precautionary measures that need to be taken to protect employees during the workplace's normal operating conditions and in foreseeable emergencies; and,

(iii)The methods the employer will use to inform the other employer(s) of the labeling system used in the workplace.

24 Skyline could attempt to meet its duty formaintaining acompliant HCP at the multi-employer construction site through a private arrangement with a third party such as Jaen, but that third party’s failure to discharge that duty on behalf of Skylinecouldsubject Skyline to liabilityfornon-compliance withthe cited standard. SeeFroedtert,20 BNA OSHCat1508(“An employer may carry out its statutory duties through its own private arrangements with third parties, but if it does so and if those duties are neglected, it is up to the employer to show why he cannot enforce the arrangements he has made,”quotingCentral of Georgia R.R. Co. v. OSHRC, 576 F.2d 620, 624[5th Cir. 1978]). To the extent Skyline contends it had delegated to Jaen its responsibilityformaintainingat the worksite an HCP that complied with the cited standard, Skyline has failed to establish that ithadeffectively delegateditsresponsibilityto Jaen. Id.The same analysiswouldapplytothetwoother HCS violations.

25 This is not to say that Skyline did not havethe independent duty, separate from Jaen’s duty,to meet the requirements of § 1926.20(b)(2). Skyline couldattempt to meet itsowndutythroughaprivate arrangement witha third party such asJaen,but that third party’s failure todischarge that dutyon behalf of Skylinecould subject Skyline to liability for failure to dischargeits owndutyunder the cited standard. SeeFroedtertin footnote24supra. While the Secretary advances arguments that Skyline’s inspections were not sufficiently regular and frequent,those argumentsbear on(1)whetherSkylinehad constructive knowledgeas controlling employerof Jaen’s alleged violative conduct, and (2) whether Skylinemet its duty of reasonable careas a controlling employer. Seesuprafootnote14;MECP§§ X.E.3.a.–e.(settingforth in five subparagraphs“[f]actors that bear on howfrequently and closely a controlling employer must inspect to meet its standardof reasonable care”). Theseargumentswouldalsohavebeengermane to whether Skylinehadmetits own duty to comply withthe cited standard, butthe Secretary’s theory of Skyline’s responsibilityis tied to Jaen’s failure to comply with the standard, not any failure of Skyline to comply.Cf. David Weekley Homes, 19 BNA OSHC 1116, 1118(No. 96-0898, 2000)(determining that the Secretary had failed to provethat the general contractorat a multi-employer construction sitehad inadequatelyimplementedthesafety programrequired by § 1926.20(b)(1)because the Secretary failed to establish that the general contractor had not taken “those measures for detecting and correcting hazards [that] a reasonably prudent employer similarly situated would adopt”).