At issue is whether PENTA, whose project staff testified that they had seen the heavy gate panel in a secure position during regular inspections, could have reasonably known there was a hazard and mitigated it. A second issue, in PENTA's view, was that the painter's direct employer had gotten started with the work without PENTA staff being on the site. Both of those issues relate to the contractor being cited as a controlling employer for workers that aren't on its payroll, part of OSHA's multi-employer workplace doctrine.

Employers often protest OSHA penalties to the OSHA Review Commission not because the proposed fines are high but because the company leaders believe the citations were unfair or wish to avoid the record of the penalty. The legal costs of a contested fine for the employer or cited company can be higher than the penalty.

John Cannito, president of The PENTA Building Group, says that “the safety of our employees and partners is absolutely our top priority. We have an excellent relationship with OSHA in all of our markets, and we work together to promote the well-being of everyone on our projects."

A year ago, the review commission judge vacated one of the citations but left standing the other two. 

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 U.S. Labor Dept. and its Occupational Safety and Health Administration. Trials of the contested fines are first held by review commission judges but the judges' decisions, posted on the OSHA review commission website, sometimes languish for a year waiting for the commission members to act.

PENTA contested its original proposed penalty in June 2021. A trial before OSHA Review Commission Judge Patrick B. Augustine took place over three days in April 2022 in Santa Ana, Calif. And that’s where the issue stood until a year ago when Augustine issued a long opinion parsing all the evidence about what occurred and why.

His account illuminates some of the hazards of moving heavy objects and materials.

The subcontractor that constructed the security gate stored the two big rolling panels, each 25 ft long and 10 ft high, in a storage area comprised of “two concrete masonry units … walls” that they called a cubby, Augustine wrote.

The gate had been intended to be operated by an electric motor, but the gate contractor had not yet installed the electric motor or chains that would have allowed the gate to operate as intended. "The gate’s panels could, however, be moved manually," Augustine wrote.

The installation contractor told a PENTA team member "don't mess with the gate" in its unfinished condition because the entire system of moving the panels had not been completed.

But the conversation never went into more detail, wrote Augustine. 

Members of PENTA's project team had inspected and looked at the gate panel in its stored position and saw it was very heavy but stable. Separately, Augustine wrote, a PENTA team member testified that he told the Raymond foreman not to paint or “mess with the Gate until we let you know …”

Agua Caliente Casino Had Opened

The casino had opened for business in time for the Thanksgiving weekend, and a PENTA superintendent was taking care of getting the punchlist items done. Raymond was already on the site painting areas around the loading dock. In the emails among team members exchanged about what would be painted next, numerous opportunities were missed when the work could have been stopped. One opportunity, tragically, involved the PENTA project super 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 worksite to begin painting the panels, so removing them from the masonry-block cubby, which would require a lot of effort, seemed like the right thing to do.

Three of the four Raymond employees started manually shifting the south panel of the gate from the cubby. No one on the Raymond crew seemed aware, Augustine wrote, that "the only physical restraint keeping the south panel upright was a roller guide attached to the top of the north panel."

"Once the south panel was rolled beyond this roller guide, nothing was keeping the south panel upright, and it immediately fell over due to its massive weight," crushing Ayers.

PENTA made several arguments that its staff had exercised reasonable care in recognizing and instructing Raymond’s employees on the hazard posed or the unsafe work condition that would arise by moving the gate from the cubby. The contractor also argued no one from PENTA actually knew moving the gate constituted a crushing hazard and that no supervisor from PENTA had any knowledge Raymond intended to start painting the gate. Finally, PENTA argued, “Raymond was under an obligation not to work on the [casino] site unless a PENTA representative was also onsite.” 

Augustine rejected PENTA's claims for various reasons and his ruling on the OSHA citations contains much discussion about whether reasonable care was exercised. 

As PENTA awaits the full review commission's decision, Cannito says "regarding our outstanding case, our ability to comment is limited." He adds: "We firmly believe the remaining [citations] will be reversed on appeal."