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Scaffolding company’s failure to have ‘lifesaving skiff’ at job site was ‘serious’ regulatory violation

By Harold S. Berman J.D.

The company’s failure, in violation of federal regulations, to provide a life boat at a dock where its employee fell to his death was properly cited by OSHA as a “serious” violation.

An administrative law judge acted within her discretion when she affirmed OSHA’s finding that a company committed a “serious” regulatory violation by failing to provide a lifesaving boat at a worksite where one of its workers fell in the water to his death, the Fifth Circuit ruled. The appeals court affirmed the ALJ’s determination, concluding that the company failed to properly raise a defense that it was infeasible to comply with the governing regulation. The ALJ also correctly found that the company failed to present evidence showing it was infeasible to comply with the regulation, even if such a defense had been properly brought (Excel Modular Scaffold & Leasing Co. dba Excel Scaffold & Leasing v. OSHRC, November 26, 2019, Higginson, S.).

Employee dies while constructing scaffold. In September 2016, an employee of a scaffold manufacturing company died while working on the construction of a scaffold beneath a dock on Galveston Bay. The employee connected the lanyard on his safety harness to the vertical leg of the scaffold. However, when he tried to attach the leg to the existing scaffold bay, the leg separated and fell into the 18-foot deep water, dragging the employee with it. Two other crew members tried unsuccessfully to save him. Rescue personnel did not arrive in time, and Coast Guard divers recovered his body later that same day.

OSHA citation. OSHA then investigated the employee’s death and the worksite conditions. The Secretary of Labor ultimately cited and fined the company for a “serious” violation of 29 C.F.R. § 1926.106(d), which requires employers to ensure that at least one small lifesaving boat was available close enough to the jobsite so that a rescue attempt could be made within a few minutes of an employee falling into the water.

The company contested the citation, and at the ensuing hearing an ALJ heard evidence as to whether the company’s failure to have a lifesaving boat immediately available exposed the company’s employees to a substantial probability of death or serious injury, and whether the proposed penalty of over $12,000 was appropriate. The company did not contest that it failed to have the required lifesaving boat at the job site, but challenged the classification of its violation as “serious.”

Although the company had brought an affirmative defense of “impossibility/infeasibility of compliance” when it initially contested the citation, it did not include that defense in the joint pre-hearing statement presented to the ALJ. Nor did it mention that defense to the ALJ when she sought to clarify the issues in dispute. Nevertheless, during the hearing, the company presented testimony that the layout of the docks would have made it difficult for a boat to navigate under the dock where the employee fell.

In the company’s post-hearing brief, it argued that the hearing testimony established that compliance with the regulation requiring a small lifesaving boat “was infeasible” because the boat could not have successfully moved under the dock to rescue the employee. The ALJ determined that the company had abandoned its infeasibility defense by failing to preserve it in the pre-hearing statement. She also concluded that the evidence failed to show it would have been infeasible for the company to comply with the boat regulation. Consequently, according to the ALJ, the company’s violation was “serious,” and the proposed penalty was appropriate. The company appealed.

Waived infeasibility defense. The Fifth Circuit affirmed the ALJ’s determination that the company waived its infeasibility defense. Federal regulations permitted the ALJ to conduct a pre-hearing conference for a variety of reasons, including to clarify the issues, and Fifth Circuit precedent held that failure to include an affirmative defense in a pre-trial order was a waiver of that defense, notwithstanding whether the defense was included in other pleadings. Although the company had previously included the infeasibility defense in its answer to the citation, the joint pre-hearing statement, which did not include the defense, superseded all other pleadings. The company failed to mention the infeasibility defense to the ALJ at the beginning of the hearing when she sought to clarify the issues.

No implicit consent. The court rejected the company’s argument that the ALJ implicitly consented to its infeasibility defense because she did not object to hearing testimony relevant to that defense. The parties did not specifically recognize they were trying an issue not raised in the pre-hearing statement. Nor did failure to object to evidence relevant to the infeasibility defense indicate consent because that evidence also was relevant to the company’s argument that the citation should not be classified as serious. Consequently, the ALJ did not abuse her discretion in concluding that it would have been prejudicial to the Secretary of Labor to permit the company to pursue the infeasibility defense.

Compliance not infeasible. The Fifth Circuit also agreed with the ALJ’s alternative grounds for dismissing the company’s infeasibility defense, as it failed to establish it was infeasible to comply with the boat regulation. The company was not entitled to the infeasibility defense because it could have partially complied with the regulation by navigating around other areas of the jobsite even if it would have been difficult for the boat to navigate beneath the dock.

Violation properly classified. The ALJ properly classified the company’s regulatory violation as serious. The company’s failure to comply with the regulation exposed its workers to accidents with “a substantial probability of death or serious injury,” regardless of whether regulatory compliance would have prevented the employee’s death. The company’s crew members worked at the jobsite for at least a year without the required lifesaving boat, despite sometimes choppy waters that were 18 feet deep, with the dock located 30 feet from the water.