meIt was 5:20 a.m. one morning in December 2020 when the one-and-a-half-ton metal security door panel at a largely completed Agua Caliente casino in Cathedral City, California, fell about 41-year-old Jay Ayers. He died from his crush injuries. Three and a half years later, the Occupational Safety and Health Administration’s proposed penalty against the casino project’s main construction contractor, PENTA Building Group, is still under review.
OSHA originally proposed fines totaling $64,000 against three companies related to the work. But PENTA contested its three original gross violations, each carrying a $13,000 penalty, and the matter remains up in the air. In addition to PENTA, one of the companies cited was Orange, Calif.-based Raymond Group, a PENTA subcontractor that employed Ayers to paint the panel. A third company was building the gate but had not finished.
At issue is whether PENTA, whose project personnel testified that they had seen the heavy door panel in a safe position during regular inspections, could reasonably have known a hazard existed and mitigated it. A second problem, according to PENTA, was that the painter’s direct employer had started the work without PENTA staff being on site. Both issues relate to the contractor being cited as the controlling employer of workers not on its payroll, part of OSHA’s multiemployer workplace doctrine.
Employers often protest OSHA penalties to the OSHA Review Commission not because the proposed fines are high, but because company leaders believe the citations were unfair or want to avoid the record of the penalty The legal costs of a contested fine for the cited employer or company may be higher than the penalty.
John Cannito, President of The PENTA Building Group, says this “The safety of our employees and partners is absolutely our highest priority. We have an excellent relationship with OSHA in all of our markets and work together to promote the well-being of everyone on our projects.”
A year ago, the review board judge threw out one of the subpoenas but let the other two stand.
The review commission itself, whose three members are appointed by the president, must approve or reject the judge’s decision. It is independent of the US Department of Labor and its Occupational Safety and Health Administration. Trials of contested fines are first conducted by review panel judges, but the judges’ decisions, posted on the OSHA review panel website, sometimes languish for a year waiting for panel members to act.
PENTA contested its original penalty proposal in June 2021. A trial before OSHA Review Commission Judge Patrick B. Augustine took place over three days in April 2022 in Santa Ana, California. opinion by analyzing all the evidence about what happened and why.
His story illuminates some of the dangers of moving heavy objects and materials.
The subcontractor who built the security gate stored the two large rolling panels, each 25 feet long and 10 feet high, in a storage area consisting of “two concrete masonry units . . . walls” which they called a cubby, wrote Augustine.
The gate had been designed to be operated by an electric motor, but the gate contractor never installed the electric motor or chains that would have allowed the gate to operate as intended. “The door panels, however, could be moved manually,” Augustine wrote.
The installation contractor told a PENTA team member to “don’t mess with the door” in its unfinished state because the entire panel movement system had not been completed.
But the conversation never went into more detail, Augustine wrote.
PENTA project team members had inspected and looked at the door panel in its stored position and found it to be very heavy but stable. separately, Augustine wrote, a A member of the PENTA team stated that he told Raymond’s foreman not to paint or “mess with the Door until we tell you . . .”
The Agua Caliente casino had opened
The casino had already opened in time for Thanksgiving weekend, and a PENTA superintendent was in charge of making the items on the list. Raymond was already on site painting areas around the loading dock. In the emails exchanged between team members about what to paint next, numerous opportunities were missed when work could have been stopped. One opportunity, tragically, involved the PENTA project overcoming being at a company golf tournament and not being able to check emails that day, according to Augustine.
On the day of the accident, four Raymond employees arrived at the casino job site to begin painting the panels, so removing them from the masonry counter, which would require a lot of effort, seemed like the right thing to do.
Three of Raymond’s four employees began manually moving the south panel of the door from the cubicle. No one in Raymond’s crew seemed aware, Augustine wrote, “of the fact that the only physical restraint holding the south panel upright was a roller guide attached to the top of the north panel.”
“Once the south panel rolled past that roller guide, nothing was holding the south panel upright and it immediately fell due to its massive weight,” Ayers said.
PENTA makes several arguments that its personnel had exercised reasonable care in recognizing and instructing Raymond’s employees about the danger posed or unsafe working conditions by moving the basket door. The contractor also argued that no one at PENTA knew that moving the door constituted a crush hazard and that no PENTA supervisor had any knowledge that Raymond intended to begin painting the door. Ultimately, PENTA argued, “Raymond had an obligation not to work there [casino] place unless a PENTA representative was also there.”
Agustí rejected PENTA’s claims on several grounds, and its decision on OSHA’s citations contains much discussion of whether reasonable care was exercised.
While PENTA awaits the decision of the full review commission, Cannito says that “on our pending case, our ability to comment is limited.” He adds: “We strongly believe in rest [citations] will be reversed on appeal.”
