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construction continuing education.

34 year old precedent overturned!

The recent Review Commission case of Sec’y of Labor v. Lake Erie Constr. Co., OSHRC, No. 11-0146 still leaves Lake Erie Construction Company waiting for a final decision on the merits. However, the Review Commission case is already a landmark decision because it overrules a 34 year-old precedent established in the case of Gerard Leone & Sons, Inc., 9 OSHC 1819 (OSHRC 1981.) (“Gerard Leone”). Gerard Leone involved the application of the construction motor vehicles standard, § 1926.601(a), which regulates such things as brake lights, audible warning devices and seat belts on motor vehicles used in construction. InGerard Leone the Commission held in a 2-1 decision that § 1926.601(a), “limits the standard’s applicability by vehicle and not by location.” Id. at 1820. In short, that decision held that the requirements for motor vehicles applied if the vehicle at issue is the type that operates off-road regardless of whether the location was on-highway but closed to the public.

In the Lake Erie case, an employee was electrocuted while working on a project which involved removing guardrail posts along a highway that was closed to traffic at the time of the accident. The guardrail posts were removed using a “pounder truck,” part of which either contacted or came close to contacting power lines, causing electricity to arc or travel to an “Attachment” and chain, thus electrocuting the employee who was holding the chain. Lake Erie received a citation for $70,000 for a willful violation of 29 C.F.R. § 1926.600(a)(3).

The question at issue was whether or not the “pounder truck” was covered under Subpart O, 29 C.F.R. § 1926.601(a) which states:

Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in 1926.602.

(emphasis added.)

The Secretary argued that based on the precedent set in Gerard Leone, the pounder truck was the type of vehicle which operated off-road and therefore was a covered vehicle. Lake Erie’s counsel argued that since the accident occurred while the pounder truck was on a highway, it was not covered under § 29 C.F.R. 1926.601(a) and, therefore, the citation was invalid.

In 2012, Administrative Law Judge Sharon D. Calhoun affirmed the citation but reduced the penalty to $35,000. The judge decided, based on the binding precedent set in Gerard Leone,that the pounder truck was a covered vehicle. However, she added that she felt the decision in Gerard Leone was wrong and in its petition for discretionary review, Lake Erie counsel noted that similar doubts have been raised in other cases.

In reaching its decision, the Commission decided that “(s)pecifically, reading § 1926.601(a) as addressing the type of vehicle operated rather than the location of its operation is contrary to the provision’s language – ‘vehicles that operate within an off-highway jobsite, not open to public traffic.'” Other cases over the years have argued that the language of this provision is plain and deliberate – there is no reference to the “type” of vehicle, nor is there any discussion of vehicles that can operate within an off-highway jobsite. The provision simply refers to “vehicles that operate within an off-highway jobsite, not open to public traffic.”

The Commission’s decision on September 24, 2015 held “[W]e overrule Gerard Leone’sholding that the language of
§ 1926.601(a) applies to motor vehicles based on their particular type. Relying on the plain language of the provision, we now conclude that it covers motor vehicles based on thelocation of their operation, i.e. ‘within an off-highway jobsite, not open to public traffic.'”

 

The case has now been remanded to Judge Calhoun to determine “whether, at the time of the alleged violation, the pounder truck was a ‘[m]otor vehicle [] … that [was] operat[ing] within an off-highway jobsite, not open to public traffic.'”

Home Inspectors License Renewal

ContractorETC is PROUD to remind you how they are licensed to provide continuing education to Home Inspectors, as well as CILB licensed contractors.

There is a large amount of overlap.

If you are dually licensed, we can HELP!

Here's the deal!

Both licensed require 14 hours - but Home Inspectors need 2 hours of Hurricane Mitigation.  Part of those 2 hours cover the "Mitigation Verification Inspection Form".  Painters and fencing contractors don't need to listen to that, so we make it separate, but we have in available ONLINE!  

All the other 12 hours, however, are covered in the 14 hours spent towards your CILB or County license continuing education requirement!

So, in one class you get everything for your contractor license, and 12 of 14 for Home Inspector. The other 2 are available with us ONLINE!

Easy!

Simple!

Amusing!

Fun!

ContractorETC is about helping make you MORE successful in business.

October Statement from OSHA

Our Assistant Secretary of OSHA, in Washington, D.C., has made the following announcement:

WASHINGTON — Results from the Bureau of Labor Statistics' Survey of Occupational Injuries and Illnesses released today show that private industry employers reported nearly 3 million non-fatal workplace injuries and illnesses in 2014. While the total recordable cases incidence rate fell 0.1 cases per 100 full-time workers, the rates for cases involving days away from work and for cases of job transfer or restriction only were unchanged.

After reviewing the report, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels issued the following statement:

"Today's Bureau of Labor Statistics report shows that too many workers are still being injured or sickened on the job. Every year, millions of workers are injured at work and that is simply unacceptable. We must redouble our efforts to make sure that employers provide workers with the protections and training they deserve.

"Workplace injuries and illnesses have a devastating effect on workers, their families, and the businesses where they occur. These injuries and illnesses contribute to the pressing issue of income inequality: they force working families out of the middle class and into poverty, and keep the families of lower-wage workers from entering the middle class and achieving the American Dream.

 

"Everyone benefits when there are fewer injuries and illnesses. OSHA is committed to continue increased efforts to ensure every employer is fulfilling its responsibility to protect the safety and health of its workers."

This information and more specific methods of showing its relevance to your business is what we cover in our classes!

ContractorETC is about making your business MORE successful!

OSHA is on the hunt!

At a House subcommittee hearing on October 7, the head of the Occupational Safety and Health Administration, Dr. David Michaels, faced a grilling from Republican lawmakers over recently issued guidance memoranda for agency inspectors and examples of allegedly over-the-top enforcement actions.

In opening remarks, Workforce Protections Subcommittee Chairman Tim Walberg (R-Minn.) complained that despite a pledge of transparency in its enforcement policies and practices, the Obama Administration had failed to keep its promise by issuing enforcement guidance to alter significant rules without public input. He pointed to three guidance memoranda OSHA released this summer on chemical safety, including one that he said erased an exemption to OSHA’s Process Safety Management (PSM) standard for 3,800 retail establishments. The issue also has caught the attention of Republican senators (see our article, Lawmakers Pledge Action to Curb Agency Guidance Documents).

Assistant Secretary Michaels responded that OSHA has held “countless” public stakeholder meetings about the retail exemption memorandum, and thus employers should not have been surprised when it was issued. The new policy clarifies the exemption in two ways. First, it makes clear that retail facilities handling high-hazard chemicals are exempt from the PSM standard if they sell chemicals in small quantities to the general public. In addition, it does away with the so-called 50 percent test; namely, that an establishment was exempt from PSM coverage if it derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user. Under the new policy, such establishments are no longer exempt.

Michaels said they did. “Standards carry the force of law, but the way we interpret them and enforce them come from those documents and other sorts of documents,” Michaels answered. “So we will use those documents to issue citations, for example, because it tells our inspectors what to do.”

Two lawmakers who were not members of the subcommittee peppered Michaels with examples of allegedly unreasonable OSHA enforcement actions. Contending that enforcement should be coupled with common sense, Representative Vicky Hartzler (R-Mo.) gave examples of employers who she said were cited because water at an eyewash station was too cold, an extension cord was kept in the wrong place and no yellow line existed 10 feet from the edge of a flat roof. Representative Mike Rogers (R-Ala.) called attention to an employer who allegedly got a $50,000 penalty for not having a yellow line around a machine. Michaels’ said he would have to “look at the specifics” concerning these complaints. He pointed out that OSHA has a free consultation service for small employers that exempts them from inspections while they use the service.

Hartzler commended him for that program, but noted that OSHA might threaten, say, a $6,000 penalty for a non-serious violation, but then tell the employer the agency will cut the penalty to $2,000 if the employer pays the penalty right away rather than contest it. “How’s that different from extortion?” she asked. Michaels did not address her question, but stated that OSHA cannot charge $6,000 for a non-serious citation if it is a first such offense.

Regarding OSHA’s whistleblower program, Hartzler wondered how many whistleblower inspections result from complaints by employees who were fired for cause, such as incompetence, but who then complain to OSHA to retaliate against their former employer. Michaels said he did not know, but acknowledged that “it is a common finding” that whistleblower complaints arise for reasons other than over safety and health issues.

Rogers described what he said were two cases wherein an OSHA inspector found a problem and ordered abatement, but declined to explain how the business could come into compliance. The employer hired a consultant and took appropriate corrective action, but still received a penalty from OSHA. “Why in the world would you not tell somebody what they have to do to come back into compliance and then if nobody’s been injured, they fix it within a reasonable amount of time, why would you fine them?” he asked.

Michaels reiterated the availability of OSHA’s small business consultation program, and noted that the agency “actually hear[s] from employers all the time” that they do not want the agency prescribing how to fix problems. Not assessing monetary penalties, he added, would incentivize employers to do nothing to correct workplace safety and health hazards before OSHA arrived.

 

In his opening remarks, Michaels asked lawmakers for help in raising civil and criminal penalties, adding OSHA protections for 10 million public sector employees who now lack them, and upgrading OSHA’s whistleblower provisions in the Occupational Safety and Health (OSH) Act. Ranking member Representative Frederica Wilson (D-Fla.) noted that, on average, an OSHA-covered business is inspected just once every 140 years, and that the House of Representatives’ proposed 2016 fiscal budget for the agency would cut funding by 14 percent. She called on lawmakers to support H.R. 2090, which would update the OSH Act. At one point during the hearing, Michaels stated that fewer than 40 percent of injury and illness reports made by employers under new reporting standards that went into effect on January 1, 2015, are drawing OSHA inspections.