 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
had entered into the subcontractor agreement with Roof to perform the concrete work at the TMC parking garage. This subcontract express- ly provided that Westenburg Contractors would adhere to all applicable OSHA regulations in the performance of its contract. Roof testified that adherence to OSHA regulations is also a requirement for holding a contractor's license.
Despite these requirements, Westenburg testified that he was not familiar with OSHA's excavation standard and had never heard of a "competent person" before this injury. He stated that he had never had any training with regard to this standard nor had he provided any such training to his working foreman on the job, Robles, Sr. Further, Westenburg believed that Roof was responsible for the overall safety of the job site. While this sufficed to support a finding that Westenburg Contractors should have known, i.e., had constructive knowledge, of the applicable OSHA regula- tions, there is no evidence that it had actual knowledge of the requirement to have a competent person on site.
ADOSH also cited Westenburg Contractors for a wilful or serious violation of 29 C.F.R. § 1926.651(k)(2):
"Where the competent person finds evidence of a situation that could result in a possible cave-in, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions, exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety." (Emphasis added.)
We interpret this regulation as one intended to govern the appropriate response when the competent person discovers a potential hazard at the jobsite. Because the uncontradicted evidence of record establishes that Westenburg Contractors had no competent person on site, the evidence does not support a finding that Westenburg Contractors violated this regulation. Westenburg Contractors' failure was to have anyone on site trained to recog- nize potential hazards under subsection (k)(1).
Finally, ADOSH cited Westenburg Contractors for a serious violation of 29 C.F.R. § 1926.21(b)(2):
"The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."
To comply with this regulation, an employer must instruct its employees about the hazards they may encounter on the job and the regulations applicable to those hazards. See Secretary of Labor v. Concrete Construction Co., 15 OSHC 1614, 1619 (Rev. Comm'n 1992).
In this case, Norton testified that during his accident investigation, he did not find any Westenburg Contractors employee that had been trained in the excavation standard. This was consistent with the testimony from Westenburg and his employees at the ICA hearing. None of them testified that they had received any training in the excavation standard. This was also supported by Westenburg Contractors' expert, Brian Murphy, who testified that he was unaware of any training for Westenburg Contractors' employees that would allow them to determine whether the excavation was safe. Despite what appears to be uncontradicted evidence that there was no excavation training, the review board reversed this citation without explanation. This was clear error.
ADOSH next argues that the review board erred by reversing the $25,000 penalty it assessed to Westenburg Contractors for a wilful violation causing an employee's death. A.R.S. § 23-418.01 provides in relevant part:
"A. An additional penalty of twenty-five thousand dollars shall be assessed
Page 1 2 3 4 5 6 7 8 9 10 11 12 Arizona Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|