By Mark A. Lies II and Elizabeth Leifel Ash
On August 17, 2009, three journeymen electricians from M. C. Dean (Dean), an outside contractor, were servicing electrical installations at a warehouse owned by Ryder Transportation Services (Ryder). One of the journeymen electricians fell through a skylight on the warehouse roof and suffered fatal injuries. Following this accident, the Occupational Safety and Health Administration (OSHA) issued citations to Ryder under the Agency’s multi-employer worksite doctrine as the “controlling” employer, alleging that Ryder was in the position to control access to the skylight and failed to properly guard the skylight on the roof of its warehouse. OSHA also cited Dean as the actual exposing employer, alleging that Dean also failed to properly guard the skylight.
A previous article, entitled OSHA Expansion of Fall Hazard Liability for Host Employers addressed the citation issued to Ryder as the host employer and made recommendations related to the obligations of a “host” or “controlling” employer who hires contractors to perform specialized work at its facility.
This article discusses the citation issued to M.C. Dean, Inc., and the related recent decision from an Administrative Law Judge (ALJ), in Secretary v. M.C. Dean, Inc., OSHRC Docket No. 10-0549 (May 16, 2011). The ALJ upheld the citation, and found employer liability based upon a ruling that an hourly employee (a journeyman) was considered to be a supervisor or a part of management, and that the employer was legally bound by “admissions” that the journeyman made in an OSHA interview from which the employer’s legal counsel was excluded. This decision is significant because it reduces OSHA’s evidentiary burden to prove employer knowledge of an alleged violation through an hourly employee as opposed to a management representative. It is also concerning because OSHA excluded the employer from the interview on the grounds that the journeyman was not a member of management and then argued a contrary position at the hearing. If the employee who is being interviewed is a management representative with authority to make binding admissions, the employer has a right to attend the OSHA interview.