Tower painting contractor sees fines more than double after contesting OSHA violations in 2012 worker fatality

EDISON, N.J. – A New York-area employer has learned that refusing to comply with federal workplace safety standards and then failing to accept responsibility for the violations can cost significantly more –in penalties– once the U.S. Department of Labor litigates the matter.

On May 6, 2016, an administrative law judge for the independent Occupational Safety and Health Review Commission affirmed the recommendation by the U.S. Secretary of Labor to increase penalties against Tower Maintenance Corp. even after the Occupational Safety and Health Administration issued a citation following the Oct. 25, 2012, death of a tower painter in Edison. As a result, the company now must pay $91,000 in fines – $56,000 more than originally assessed – after additional information about the employer’s failures were brought before the commission.

As the painter worked at a height of approximately 70 feet, the man inadvertently contacted an energized power line and fell from the tower, striking a second employee painting on the tower below. The second employee fell from the tower about 40 feet to the ground. The employee who contacted the power line suffered fatal injuries and the second employee survived the fall, but suffered multiple serious injuries. In 2010, another employee of the Sea Cliff, New York-based company was killed in a similar incident at a Pennsylvania worksite.

An OSHA investigation of the 2012 incident found Tower Maintenance employees were repainting a series of electric transmission towers supporting high-voltage power lines. The difficult work required employees to climb the towers, which are over 100 feet tall, and apply paint to the towers’ surfaces as they climbed. Employees told inspectors that they worked so close to the energized power lines that they could feel the hair on their skin stand up. Despite the extreme and obvious hazards of the work, Tower Maintenance refused to provide the employees with functional fall protection equipment and failed to provide the employees with any safety training.

After its investigation, the agency issued three citations, including one repeat violation for the employer’s failure to provide employees with functional fall protection equipment, one repeat violation for the employer’s failure to provide training, and one serious violation for permitting unqualified employees to work in close proximity to energized electric lines. OSHA proposed a total penalty of $35,000 for the violations.

During litigation, the secretary discovered additional facts withheld from OSHA investigators. The secretary learned that several employees requested new fall protection equipment prior to the fatal incident but Tower Maintenance denied the requests, instead directing painters to use the faulty equipment or to work with no fall protection at all. The secretary also learned that Peter Vlahopoulos, the company’s project director and the husband of the company’s owner, previously owned an industrial painting company that accumulated numerous OSHA citations related to inadequate fall protection. Based on these newly discovered facts, the secretary argued that the fall protection violation deserved a “willful” classification and the maximum statutory penalty of $70,000.

In affirming the secretary’s recommendation, the judge’s decision stated that Tower Maintenance had heightened awareness of OSHA’s fall protection requirements and was “plainly indifferent to the safety of its painters.” The record established that the company “systematically sent painters up towers” without the required training or fall protection equipment despite a similar fall fatality less than two years prior. The judge also found that all of Tower Maintenance’s supervisors knowingly permitted the painters to work under these unsafe conditions. The decision also held that Tower Maintenance failed to train or qualify its employees to perform work near energized electric power lines. The judge assessed a total penalty of $91,000 for the three violations – $56,000 more than OSHA initially proposed.

“Tower Maintenance’s negligence contributed directly to this preventable tragedy. The company routinely exposed workers to falls and electrical dangers without the proper fall protection and training, despite the fact a similar fatality occurred less than two years prior,” said Robert Kulick, administrator of OSHA’s New York Region. “The judge’s decision sends an important message to employers: OSHA will hold companies that fail to protect employees accountable.”

“We take all workplace safety and health matters very seriously,” said Jeffrey Rogoff, the department’s regional solicitor in New York. “The solicitor’s office will use all necessary resources to ensure that justice is done.”

The Occupational Safety and Health Act requires employers to provide a workplace that is free from recognized hazards, to comply with rules and regulations issued under the Act, and to examine workplace conditions to ensure that that they comply with applicable standards. The OSHA inspection in this case was conducted by the OSHA Avenel Area Office. The case was litigated and tried by David M. Jaklevic and Radha Vishnuvajjala of the department’s regional Office of the Solicitor in New York.