Citing climber error and rebuking inspector, OSHA Judge vacates tower contractor's fine
June 23, 2010 - An administrative law judge for the Occupational Safety and Health Review Commission ruled Monday that a New Jersey tower erector was compliant with industry safety standards and should not have been cited following the death of an employee.
Judge Covette Rooney's ruling also provided a stinging rebuke to the OSHA compliance officer, stating that she misinterpreted the statements of witnesses. Judge Rooney also credited the testimony of the erector's employees over the inspector's findings.
On July 18, 2008, Gerard M. LeClercq, 55, was working on a Crown Castle International self supporting tower performing a retrofitting project for his employer, Paramount Advanced Wireless, LLC of Pennsauken, N.J.
At approximately 10:50 a.m. the experienced tower technician fell approximately 60 feet from the Vineland, N.J. tower while changing out braces and became the eighth tower worker to die during 2008, a year that witnessed 12 fatalities of workers falling from a communications structure.
Owner charged with serious violation
A New Jersey OSH compliance officer went to the scene while LeClercq's body was still on the ground, interviewed workers until late in the evening, and later questioned other Paramount employees including the company's owner, Michael Moskowitz.
Moskowitz, who was on the first board of directors of the National Association of Tower Erectors, is an advocate of climber safety and has been active with OSHA partnerships as well as private initiatives he has developed with OSHA.
However, he said that he understood that his partnership programs and advocacy efforts should not influence the outcome of an investigation, but he firmly believed that his company's EH&S program and the work practices required to be observed on the jobsite would be in compliance.
The OSHA compliance officer disagreed and cited Paramount for a serious violation and proposed a penalty of $7,000. Following her investigation she said she was convinced that LeClercq was using a Fisk Descender to perform a controlled descent when he fell.
She contended that when using the Fisk Descender to descend, "the employee must be protected with a hooked up second line and rope grab that would serve as a back-up line should the Fisk Descender fail."
Much of her testimony was disputed at the hearing and foreman Eric Rodig said, "...there was not controlled descending by anybody, at any time."
Rodig, who began his career with Paramount in the late 1980s, also denied that he told her that the employees were descending. He explained that the employees would get up and down the tower by climbing the ladder.
Both Rodig and Moskowitz testified that a Fisk Descender can be used as a positioning device when used in conjunction with a position or shock absorbing lanyard.
Project manager's lack of knowledge questioned by Judge
Particularly troubling to Judge Rooney was the OSHA officer's recollection of statements made by project manager Al Barnes, who was not at the site, who she said stated, "Although he wasn't familiar with this type of telecommunications tower, employees would normally use a rope grab on such towers."
Judge Rooney said, "The CO's accuracy in transcribing the statements obtained by respondent's employees was also placed into question by her demonstrated misunderstanding of her conversation with Al Barnes."
"According to the CO, Mr. Barnes stated that he was more familiar with monopole towers than with the stand-alone towers that were at issue in this matter. However, Mr. Barnes denied making such a statement. Rather, he pointed out that, during his career, he has worked on hundreds of stand-alone towers. He flatly denied telling the CO that he was more familiar with monopole towers," she said.
Judge Rooney further stated that she found nothing in the record to suggest that Barnes had cause to misrepresent the level of his expertise.
"That the CO misunderstood this basic fact, casts doubt on her recollection and interpretation of the statements of Rodig, Cocker, Moskowitz and Barnes, most of which were made during the tumultuous period after the accident," she said.
Barnes began his career with Paramount building self supporting towers in the early 1980s.
In addition to vacating the citation, Judge Rooney also stated that Paramount's compliance program was commendable.
"Accordingly, I find that on this record, respondent established that the accident was an unforeseeable event caused by the idiosyncratic actions of the employee who, for some unknown reason, unhooked himself from his fall protection," said Judge Rooney.
Paramount was represented by attorneys Mark A. Lies and Daniel Flynn of Seyfarth Shaw, LLP of Chicago.
Moskowitz said that after spending almost two years trying to resolve the citation he was ecstatic by the judge's detailed decision, but emphasized that one of his company's strongest positions in the hearing was its "rigid observance to climber safety".
"A safety program is nothing if you do not enforce it and you aren't able to document employee adherence and have the correct disciplinary programs in place if they don't."
Moskowitz stated he was appreciative of the support he received in an email from a client who read the decision. "It said, 'I think your work over the years to prevent accidents and promote safety have gone a long way towards protecting your employees and others in the industry and although unfortunate, after reading this, it’s clear there was nothing your team or you could have done that day to prevent this'. "
"This case shows that you can provide all the proper training, all the proper equipment and all of the proper supervision, and you can still get hammered because OSHA has some inspectors that know nothing about climber compliance and are either overworked or incompetent," said a safety training instructor.
There are a number of rights that an employee has during an interview with an OSHA inspector. One is to refuse to be tape recorded.
Moskowitz said that the compliance officer did not request to record his statements and he was not aware of a similar request to any of his employees that were interviewed.
The Secretary of Labor has the right to appeal the ruling. The decision will become final 30 days following it being docketed by the Commission's Executive Secretary.
An industry legal observer believes that this decision could become the leading case referenced for future hearings concerning climber fatality citations since it is the only known ruling that explores a number compliance issues specific to the tower construction profession.
Judge Rooney's ten-page decision is available here. It provides a number of statements made during the investigation and hearing that will be reviewed by attorneys, safety professionals, company owners and tower climbers for years to come.
A number of comments made by viewers regarding this decision can be seen in WirelessEstimator.com's forum. You're invited to contribute your valued opinion.