Not-our-employees argument doesn't hold up in court (3/25)
March 25, 2011
Judge upholds OSHA citations issued to Ohio-basedAn administrative law judge with the Occupational Health and Safety Review Commission has affirmed six of seven safety and health citations issued to Independence-based ALL Erection & Crane Rental Corp. by OSHA in July of 2009. The company was assessed penalties totaling $10,850.
The citations came on the heels of an OSHA investigation opened in June of 2009, after a worker was struck in the head by debris during the cleanup of a 600,000-square-foot factory building in Cleveland that was owned by ALL Erection & Crane.
"Employers have a responsibility to ensure their workplaces are safe and that workers at their premises are afforded the proper protection for their health and safety," said Howie Eberts, OSHA's area director in Cleveland. "We are pleased that the Occupational Safety and Health Review Commission has affirmed our findings in this case. “
The company employed subcontractor Labor Ready to remove debris, including pigeon waste, from the building, which was in disrepair. The inspection revealed that several employees were exhibiting symptoms of histoplasmosis, a potentially fatal respiratory disease, as a result of inhaling dust created by sweeping and shoveling the bird waste.
ALL Erection & Crane contested the citations on the grounds that the workers were employed by Labor Ready, not ALL Erection & Crane. The judge rejected that argument because workers were being supervised on the jobsite by ALL Erection & Crane, and the company was controlling the manner and means of the work being accomplished.
As a result of the OSHA investigation, ALL Erection & Crane was issued five serious citations, all now upheld, for failing to provide guarding for a fifth floor elevator shaft; provide personal protective equipment, provide compliant respirators, provide medical personnel for advice and consultation, and train employees on hazardous chemicals in the workplace.
OSHA also ssued one other-than-serious citation, which was upheld by the judge, for failing to determine the presence, quantity and location of asbestos-containing material or presumed asbestos-containing materials at the worksite.