OSHA says when a roofer moved a ladder, it came in contact with a power line and electrocuted him. The employer presented three arguments why $84,000 in OSHA fines should be thrown out.
A six-person team (crew chief and five workers) employed by Tim Graboski Roofing was replacing a home’s roof on June 27, 2013 in Boca Raton, FL.
The crew chief was on the roof and asked his son (one of the five workers) on the ground to reposition a metal extension ladder.
The crew members on the roof heard the worker cry out and the sound of the ladder falling. When they looked over the side of the roof, they saw the worker lying on the ground with the fallen ladder beside him.
The worker was taken by ambulance to the hospital where he was pronounced dead.
OSHA issued three violations:
- a serious violation for permitting employees to work near energized electric power circuits and for failing to determine before work began whether any part of an energized power circuit was located where employees or equipment could come in contact with it ($7,000)
- a serious violation for permitting employees to use a ladder with conductive side rails near an energized electric power circuit ($7,000), and
- a willful violation for failing to provide fall protection to employees working at a height 6 feet or more above the lower level ($70,000).
Graboski appealed the violations, arguing:
- OSHA failed to meet its burden of proof
- OSHA failed to prove the one violation was willful, and
- the violations were the result of unpreventable employee misconduct.
An administrative law judge (ALJ) from the Occupational Safety and Health Review Commission heard the appeal.
1. Burden of proof
Graboski argued OSHA failed to meet its burden of proof because it presented no evidence to show that employees were working near power lines or that any person accessed the roof from the side of the house near the power lines.
The employer also claimed OSHA couldn’t prove the employee was electrocuted when a ladder touched or got close to a power line because no one witnessed the incident.
The ALJ said the company misconstrued what OSHA has to prove. OSHA doesn’t have to prove the employee’s death was caused by electrocution when the ladder contacted the power lines. Instead, OSHA has to prove employee contact with energized lines was possible.
“The cause of the accident is not necessarily relevant to whether a standard has been violated,” the ALJ noted.
The OSHA inspector testified Graboski’s safety supervisor and general manager accompanied him during his walkaround inspection. Neither manager indicated the area being inspected was not the area where the employee attempted to move the ladder.
The power line in question was 22 feet 8 inches above the ground. The OSHA inspector found the ladder in question had been extended 26 feet 7 inches, so it had been extended long enough to touch the wire.
Also, Graboski’s own safety committee issued an internal report which corresponded with OSHA’s finding. Minutes of a safety committee meeting stated the employee “was electrocuted, resulting in death. He was instructed to move the ladder to another location of the roof by his crew leader, and the ladder made contact with high tension wires.”
The ALJ found OSHA met its burden of proof.
2. Unpreventable employee misconduct
To prove unpreventable employee misconduct, an employer must show it:
- established a work rule
- adequately communicated the rule to its employees
- took reasonable steps to discover violations, and
- effectively enforced the rule.
On Feb. 8, 2013, Graboski presented a Toolbox Talk on ladder safety which devoted one sentence to using ladders near power lines: “Keep ladders, especially metal ones, away from overhead power lines.” No mention was made of using ladders with nonconductive siderails.
When interviewed by OSHA, employees unanimously stated they didn’t receive training about working safely near electricity.
The ALJ found Graboski didn’t have a work rule specifically prohibiting employees from using ladders with conductive siderails when working near energized electrical equipment. So the unpreventable employee misconduct defense failed.
3. Willful designation
Graboski’s general manager said the company’s tiling crew preferred working unattached to roof anchors. In fact, the GM said the employees would quit if they made them tie off.
The ALJ reasoned this “demonstrated an intentional, knowing and voluntary disregard” for OSHA’s fall protection regs. The willful designation stuck.
The ALJ also allowed the $84,000 fine to stand, noting “the gravity of each of the violations is high.”
What do you think about the decision? Let us know in the comments.
Here is a video on construction safety when dealing with power lines:
(Secretary of Labor v. Tim Graboski Roofing Inc., OSHRC No. 14-0263, 3/2/15)
