In a recent Occupational Safety and Health Review Commission (OSHRC) case, Secretary v. Nuprecon, LP, No. 08-1037 (February 7, 2012), the Commission found that an Occupational Safety and Health Administration (OSHA) citation cannot be based upon OSHA’s speculation as to what might happen, but rather must be based upon actual employee exposure to the alleged hazard.
OSHA had conducted an inspection of a facility where employees were demolishing hangars and other structures. At the time of the inspection, the employees were working on the third floor of a hangar where the OSHA compliance officer (CO) observed an unprotected twenty-one-footlong, floor-to-ceiling opening. The CO learned that sometime prior to her arrival, an employee had been operating a Bobcat front-end loader (Bobcat) pushing debris through the unprotected opening down to a lower level of the hangar, about thirty-six feet below. Across the unprotected opening, the employer had secured a “5/8-inch thick cable, hung several feet above the floor,” to prevent the Bobcat from falling over the edge. The employer had also “hung red plastic . . . tape several feet above the floor from the walls near the open edge to and between stanchions” to create “a rectangular area in front of the open edge.” The employer trained its employees that red tape signified “danger” and that they were to “stay out” of such taped-off areas.
Both OSHA and the OSHRC had agreed during the proceedings that the employer was not required under the standard to provide fall protection for the Bobcat operator while he operated the vehicle. Nevertheless OSHA argued to the administrative law judge and then to the OSHRC that it was “reasonably foreseeable” that the operator would get out of the vehicle and could have ended up near the unprotected edge. The OSHRC found that the had ALJ erred in finding for OSHA. The OSHRC found that there was no reason for the Bobcat operator to get off the vehicle and there was no evidence that employees were ever in the zone of danger near the fall hazard. Accordingly, the OSHRC found that it was not “reasonably predictable” that the operator would be exposed to the unprotected edge.