Tessier's, Inc. v. Secretary of Labor
6 F.4th 777
| 8th Cir. | 2021Background
- Tessier’s employees were installing roof curbs when a plywood cover over a roof hole collapsed, and employee Cameron Puepke fell ~22 feet and was seriously injured.
- Covers were plywood on two-by-four frames; Tessier’s workers trimmed an overhanging edge and either removed or pried at additional plywood while installing a curb.
- OSHA found a one-foot-by-three-foot section of the cover on the roof near the one-inch strip the workers admitted removing; an inspection showed screw holes with a "volcano effect" suggesting forced removal.
- Tessier’s was cited under 29 C.F.R. § 1926.501(b)(4)(i) for failing to protect employees from falling through holes; an ALJ affirmed the citation and the Commission declined review.
- Tessier’s challenged the finding that workers had removed a 1'×3' section (thus exposing a hole) and argued the standard did not apply; the Eighth Circuit reviewed for substantial evidence and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fall-protection standard applies (was there a "hole") | Tessier’s: no hole existed because the hole was covered | Secretary: workers removed a 1'×3' section, exposing a hole >6 ft below | Held: A hole was exposed; standard applies |
| Whether substantial evidence proves workers removed the 1'×3' section | Tessier’s: record does not compel that finding; section may have fallen later | Secretary: deposition, roof debris location, eyewitness reports, and physical evidence support removal | Held: Substantial evidence supports the ALJ’s finding that the section was removed |
| Whether Tessier’s knew or could have known of the violative condition | Tessier’s: Secretary failed to prove employer knowledge or constructive notice | Secretary: employees themselves exposed the hazard; employer responsible to ensure protection | Held: Employer knowledge/constructive knowledge established given employees exposed the hole |
Key Cases Cited
- Omaha Paper Stock Co. v. Sec’y of Lab., 304 F.3d 779 (8th Cir. 2002) (articulating the substantial-evidence standard and judicial review of Commission factual findings)