Davis Brothers Construction Co.

Plain-English summary

OSHA compliance officers photographed an unidentified worker from about 300 feet away on the seventh-floor roof deck of an apartment project. Davis Brothers was the shell contractor, and the judge found that its contract gave it sufficient safety control over the decking subcontractor to make it a controlling employer. The judge also found that the cited fall-protection standard applied and that the worker was likely not protected by guardrails, nets, or a personal fall-arrest system. The citation nevertheless failed because the worker was never identified or interviewed, the photograph was blurry, and the evidence did not establish his exact location, task, or access to an eight-foot interior fall hazard. The repeat citation was vacated with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The repeat fall-protection citation was vacated with no penalty.
• Key point: Even when a contractor controls safety and an employee appears unprotected, the Secretary must prove that the employee had access to the cited fall hazard.

Full text (OSHRC public release)

Secretary of Labor,
   Complainant,
      v.                                                             OSHRC Docket No. 02-1012
Davis Brothers Construction Co.,
   Respondent.

Appearances:

      Dane L. Steffenson, Esq., Office o f the Solicitor, U . S. De partm ent of Labo r, Atlanta, Geo rgia
      For Com plainant

      Michael G. Murphy, Esq., Holland and Knight, LLP, Orlando, Florida
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                        DECISION AND ORDER

      Davis Brothers Construction Company contests a one-item citation issued by the Secretary

on June 18, 2002. The Secretary issued the citation following an inspection conducted by
Occupational Safety and Health Administration (OSHA) compliance officers Angel Diaz and
Michele Sotak on April 2, 2002, at Davis Brothers’s worksite in West Palm Beach, Florida.
The citation initially alleged that Davis Brothers committed a repeat violation of
§ 1926.501(b)(1) by failing to provide an employee with fall protection when he was working near
the edge of a roof on a 56-foot tall building.
A hearing was held in this matter on February 27 and 28, 2003, in West Palm Beach, Florida.
The parties have filed post-hearing briefs. Davis Brothers contends that the worker observed by the
compliance officers was not one of its employees and that it did not violate the terms of
§ 1926.501(b)(1). Davis Brothers also contends that, if a violation of the standard did occur, it was
the result of unpreventable employee misconduct. 1

1
In its answer, Davis Brothers raised the affirmative defenses of greater hazard and infeasibility in addition to that
of employee miscond uct. In its po st-hearing brief, D avis B rothers add resses o nly the em ployee miscond uct defense.
Based on the record and on Davis Brothers’s abandonment of the other affirmative defenses, the company’s claims
of grea ter hazard and infea sibility are d eemed to be without merit.
 For the reasons set out below, it is determined that Davis Brothers was not in violation of
§ 1926.501(b)(1).
Stipulated Facts
The Secretary and Davis Brothers agreed to the following stipulations in their joint response
to the undersigned’s pre-hearing order:
1. Davis Brothers is an employer engaged in a business affecting commerce within the
meaning of § 3(5) of the Act.
2. The principal place of business of Davis Brothers is 951 Broken Sound Parkway
NW, Suite 150, Boca Raton, Florida, where it is engaged in construction as of the
date of the alleged violation.
3. The worksite that is at issue in this action is located at 601 Executive Drive, West
Palm Beach, Florida.
4. On April 2, 2002, subcontractor RMC was performing decking work for Davis
Brothers at the worksite.
5. On April 2, 2002, Chris Veller was Davis Brother’s superintendent at the worksite.
6. The cited standard, § 1926.501(b)(1), applied to work being done on the seventh
floor of Building C at the worksite by Davis Brothers or by Davis Brothers’s
subcontractors.
7. Davis Brothers had a signed contract with RMC which required RMC to provide the
labor, fall protection, and supervision for the scope of the work that RMC performed
on the project.
Background
Davis Brothers is a shell contractor, hired by the general contractor to oversee the
construction of a building’s skeleton, including decking. Although in the past Davis Brothers
employeed its own construction crews, more recently Davis Brothers performs no physical labor on
the project but hires specialty subcontractors to do the work. It employs subcontractors to construct
the skeletons of buildings for general contractors. From late 2001 through the late April 2002, Davis
Brothers was constructing the shells of buildings on the Pinnacle Palms apartment project in West
Palm Beach, Florida (Tr. 197, 365-367). The Pinnacle Palms project consisted of 152 units in four

                                             -2-

apartment buildings, plus a club house, on several acres of land (Tr. 148). The general contractor
for the project was BJ&K. Davis Brothers subcontracted with RMC to perform the decking work
(Tr. 296, 370, 410). Davis Brothers has a long-standing relationship with RMC. It signs yearly
contracts with RMC for multiple projects that will take place in that year (Exh. R-4).
Davis Brothers had two full-time employees on the site in the weeks prior to the inspection
and on the day of the inspection. Chris Veller was Davis Brothers’s superintendent, and Carlos
Lopez was a carpenter and laborer for the company (Tr. 136, 193).
The Pinnacle Palms project was visible from Interstate 95. On April 2, 2002, compliance
officers Diaz and Sotak were driving on Interstate 95 when they noticed two employees on the roof
of Building C. As they approached the worksite, they saw a third employee atop Building A (Tr. 22).
The compliance officers drove to the entrance of the project and met with Salvatore Messina,
BJ&K’s superintendent, who granted them access to the worksite (Tr. 23).
Diaz and Sotak proceeded to the roof of Building A with Messina and observed employees
of the subcontractor Metalite installing trusses (Tr. 24, 96). While atop the roof of Building A, the
compliance officers looked across to the seventh floor roof deck of Building C, approximately
300 feet away (Tr. 147). Building C was taller than Building A (Tr. 65). The compliance officers
observed an employee on the roof of Building C carrying a 5- to 6-foot long object. Sotak
photographed the employee (Exh. C-9; Tr. 25, 75-76, 103). Messina called Davis Brothers
superintendent Veller, who was on a lower floor in Building C, and said, “Chris, you’ve got one of
your guys up on the roof that’s not tied off. You need to get him down” (Tr. 152). The employee
on the roof left shortly after the call.
Based upon their observations and interviews with Messina and Veller, Diaz and Sotak
concluded that the employee on Building C was an RMC employee under Davis Brothers’s
supervision and control. They also concluded that the employee was exposed to a fall of 56 feet
(Tr. 47, 52-53). Diaz and Sotak reviewed Davis Brothers’s history with OSHA and discovered that
the Secretary had issued citations of violations of § 1926.501(b)(1) twice in the previous 3 years
(Tr. 54-55).

                                            -3-

The Citation
The Secretary has the burden of proving her case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard,
the Secretary has the burden of proving: (a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of
the violation (i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Item 1: Alleged Repeat Violation of § 1926.501(b)(1)
Section 1926.501(b)(1) provides:
Each employee on a walking/working surface (horizontal and vertical surface) with
an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall
be protected from falling by the use of guardrail systems, safety net systems, or
personal fall arrest systems.

    The citation alleges:
    On or about April 2, 2002, an employee was exposed to a fall hazard of
    approximately 56 feet while working next to the edge of a roof without a fall
    protection system.

    At the hearing, the undersigned granted the Secretary’s motion to amend her complaint to

plead that the employee was exposed to a fall of approximately 8 feet to the interior of the building,
in addition to the 56-foot exterior fall alleged in the citation (Tr. 234).
For Whom Did the Employee Observed on Building C Work?
The Secretary contends that the employee observed on the roof of Building C was an RMC
employee, under the supervisory control of Davis Brothers. Davis Brothers contends that the
Secretary never identified the employee, and that the record does not support the inference that he
worked for RMC. It is undisputed that the Secretary never interviewed or identified the employee.
His name is unknown. The compliance officers viewed him briefly from a distance of 300 feet.
They could not determine what type of work he was performing (Tr. 66, 102).
Diaz and Sotak saw the employee carrying a 5- or 6-foot object, which they thought could
be a beam. From this, they guessed that he was completing the deck of the roof on Building C, a job

                                              -4-

that would only be done by an RMC employee. Diaz testified, however, that the employee could
have been carrying a length of pipe or electrical conduit (Tr. 75). Sotak did not think that the object
was a piece of pipe or conduit (Tr. 103), but she conceded, “I couldn’t tell exactly what he was
doing. I knew he was carrying something. Exactly what he was doing I couldn’t tell” (Tr. 93). The
photographs entered as Exhibit C-9 are of little help. Sotak explained that the zoom lens on her
camera was broken at the time of the inspection. The photographs she took are blurry and show little
detail (Tr. 94).
Davis Brothers argues that the employee in question could have been one of the plumbing
or electrical employees who were also working in Building C. Veller testified that the plumbing and
electrical subcontractors were on the 7th floor of Building C on April 2 (Tr. 411, 414). The
compliance officers returned to the site on April 4 and showed Veller the photographs of the
employee that Sotak had taken. Veller stated, “He works for me” (Tr. 123). Davis Brothers
contends that Veller was talking loosely and considered anyone working on the site to be working
for him in the sense that he was the superintendent for the shell contractor.
This argument ignores Veller’s other reported statements regarding the photographs,
including, “That’s my decking guy” (Tr. 53). At the hearing, Veller testified that the photographed
employee “looked like a man from RMC” (Tr. 213).
BJ&K superintendent Messina accompanied the compliance officers on the day of the
inspection and identified the worker on the roof of Building C as “a decking man” under the
supervision of Davis Brothers (Tr. 30). At the hearing, Messina explained why he believed the
employee was performing decking work (Tr. 133):
Well, at the time and looking at the picture again, he was setting beams down. You
have to place your beams in place first before you can put your plywood decking
down. So, he’s got a beam in his hand, and he was getting ready to set the beam so
he could finish decking out the building. That’s what makes me think he was not at
the edge [of the roof] because you couldn’t be at the edge if there was no plywood.

    Messina was questioned about the employer of the photographed employee (Tr. 135-136):
    Q. Now, who do you believe employed this guy who was laying down the beams?

    A. The people who did the deck work was a subcontractor of Davis Brothers.



                                             -5-

Q. And, is that the people that you believe employed this guy?

     A. Yes, because Davis Brothers has no employees on the job doing that kind of
     work. We’re a general contractor. We oversee the work of the project. Our
     subcontractors have subcontractors that they oversee, so Davis Brothers had nobody
     doing the actual work out there. They just had subcontractors, but they work under
     Chris.

     Q. I believe in your earlier testimony, you talked about this guy being an employee
     of Davis Brothers or one of Davis Brothers’s guys?

     A. Yes, like Davis Brothers is one of my guys. If you don’t understand what I’m
     trying to say–if I could express myself, in construction there may be a hundred guys
     on the job. As far as I’m concerned, I’m the project superintendent, they’re working
     for me. So I say, “That guy works for me.”

     Q. Everyone is working for you?

     A. Well, basically. So, I said, “That guy works for Chris.”

     Q. Because he’s a subcontractor to Davis Brothers?

     A. Yes, but he works for him.

     Messina walked the entire project every night before he left. On April 2, he went to the roof

of Building C after the compliance officers left (Tr. 138):
Q. So, based upon what you saw when you went to the roof of Building C, based
upon your observation of the employee, did you reach a conclusion as to what he was
doing up there?

     A. Yes, it was what I said. He was just putting the beams in place, getting ready to
     deck it.

     As the general contractor’s project superintendent, Messina was involved in the day-to-day

scheduling and construction process for the Pinnacle Palms apartments. Based upon his detailed
testimony and upon Veller’s statements, it is determined that the employee seen in Exhibit C-9 on
the roof of Building C was an RMC employee engaged in decking at the time the photograph was
taken.

                                              -6-

Did Davis Brothers Exercise Supervisory Control Over RMC’s Employees?
The Review Commission has held that an employer on a worksite with multiple employers
may possess sufficient control over the entire worksite “to obtain abatement of hazards, either
through its own resources or through its supervisory role with respect to other contractors.”
Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1185 (No. 1275, 1976). The Review
Commission has held that an employer is responsible for violations of other employers where it
could reasonably be expected to prevent or detect and abate the violations due to its supervisory
authority and control over the worksite. Centex-Rooney Construction Co., 15 BNA OSHC 2052,
2055 (No. 90-2873, 1992). This duty applies to an employer even if its own employees are not
exposed to the hazard. Flint Engineering & Construction Co., 15 BNA OSHC 2052, 2055
(No. 90-2873, 1992).2
Davis Brothers’s office is located in Boca Raton, Florida, and the worksite at issue in this
case was located in West Palm Beach, Florida. Florida is located in the Eleventh Circuit, to which
this case could be appealed. “Where it is highly probable that a Commission decision would be
appealed to a particular circuit, the Commission has generally applied the precedent of that circuit
in deciding the case–even though it may differ from the Commission’s precedent.” Kerns Brothers
Tree Service, 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). In McDevitt Street Bovis, Inc.,
19 BNA OSHC 1108 (No. 97-1918, 2000), the Commission held that case law decided by the
former Fifth Circuit rejecting the multi-employer worksite doctrine does not preclude application
of the Review Commission’s precedent regarding the doctrine in the Eleventh Circuit.3 This case

2
Davis Bro thers argues tha t the multi-em ployer work site doctrine applies to general co ntracto rs and that, as the shell
subcontractor, it did not po ssess the d egree of control over the worksite that a ge neral contractor ha s. As the shell
contractor, Davis Brothers subcontracted with the specialty subcontractors to perform the work. Davis Brothers
perfo rmed no actual work on the pro ject--it ove rsaw the sched uling and adequacy of the work done by its
subcontractors (Tr. 135-136). BJ& K did not directly oversee the work done by the Davis Brothers’s subcontractors
(Tr. 180 -181 ). Messina testified that if he had a p roblem with the decking, he would go to Veller, not to RM C’s
foreman (T r. 137). T he written contracts into which the sp ecialty subcontracto rs entered were with Davis B rothers,
not B J&K (E xhs. C-19 & R-4). The relationship between Da vis Brothers and RM C was the equivalent of a
relationship between a general co ntracto r and a subc ontractor. T he mu lti-emplo yer worksite do ctrine applies to
Davis Brothers.

3
Dec isions of the form er Fifth C ircuit entered b efore October 1, 19 81, are bind ing pre cedent in the E leventh
Circuit. Bonne r v. City o f Prich ard, Alab am a, 661 F. 2d 1206, 1209 (11 th Cir. 1981) (en banc). Having reviewed
cases in both the Fo rmer Fifth and in the Eleventh Circuits, Mc Devitt concluded that it was ambiguous whether or
not the Eleventh Circuit would consider itself bound by the decision in the Former Fifth.

                                                        -7-

will be analyzed under the multi-employer worksite doctrine as developed under Commission
precedent.
OSHA Directive, CPL 2-0.124 (“Multi-Employer Citation Policy”) was issued by the
Secretary on December 12, 1999. While OSHA CPLs and other directives are not binding on the
Commission, the Commission has looked to them in the past as an aid in interpreting standards.
Drexel Chemical Company, 17 BNA OSHC 1908, 1910, footnote 3 (No. 94-1460, 1997).
The CPL sets out a two step process to determine whether an employer should be cited under
the multi-employer worksite policy. The first step is to determine whether the employer in question
was a creating, exposing, correcting, or controlling employer. Only if the employer falls into one
of these categories can it be cited under the policy. Step two is to determine whether the employer
met its obligations with respect to OSHA requirements. CPL 2-0.124, ¶ X.A.1 and 2.
The Secretary argues that Davis Brothers was a controlling employer with regard to RMC.
Davis Brothers argues that it did not have authority over RMC sufficient to make it a controlling
employer under the multi-employer worksite doctrine.
The CPL lists four types of control that result in a controlling employer categorization:
(a) control established by contract, (b) control established by a combination of other contract rights,
(c) architects and engineers, and (d) control without explicit contractual authority. CPL 2-0.123,
¶ X.E.5.a-d.
Control Established by Contract
The CPL provides (Paragraph X.E.5.a, emphasis in original):
In this case, the Employer Has a Specific Contract Right to Control Safety: To
be a controlling employer, the employer must itself be able to prevent or correct a
violation or to require another employer to prevent or correct the violation. One
source of this ability is explicit contract authority. This can take the form of a
specific contract right to require another employer to adhere to safety and health
requirements and to correct violations the controlling employer discovers.

   Exhibit R-4 is a copy of the contract between Davis Brothers (Contractor) and RMC

(Subcontractor). The contract gives Davis Brothers broad authority over scheduling and the manner
in which the work is performed. Davis Brothers has the right to reject work it finds inadequate, and

                                             -8-

to terminate the subcontractor or exact penalties from it. With regard to safety, the contract provides
in pertinent part (Exhibit R-4, p. 5, emphasis in original):
Subcontractor will adhere to all OSHA requirements.

   Subcontractor shall comply with applicable OSHA, State, County and local safety
   laws, regulations and ordinances in addition to complying with safety measures set
   forth by the Contractor.

   Subcontractor shall take all reasonable safety precautions with respect to his Work
   and shall comply with all safety measures initiated by the Contractor and will abide
   by all applicable laws, ordinances, regulations, rules, and orders of any public
   authority for the safety of persons or property in accordance with the requirements
   of the Contract Documents.

   Subcontractor will inspect the building, before he sends his workforce into that
   building, for any unsafe conditions and be ultimately responsible for his own
   workplace safety.

   Subcontractor must immediately report to Contractor any injury (large or small)
   to Subcontractor’s employees or agents.

   All workmen must wear approved work shoes and any other protective gear needed
   to perform their duty. This includes all fall protection gear.
   ...

   Subcontractor shall maintain the jobsite clean and free of waste material, debris and
   trash. Clean up on a daily basis is mandatory. All construction waste material,
   debris and trash must be placed into the on site dumpster if provided or with approval
   placed in front of the building. There is a $50.00 fine for the first offense,
   termination of the contract for the second offense. If Contractor has to clean jobsite,
   Subcontractor will be charged for the expense of cleaning jobsite.

   The contract also establishes Davis Brothers’s broad control over the subcontractor

(Exhibit R-4, p. 2):

   The Subcontractor may be ordered in writing by the Contractor, without
   invalidating this Contract, to make changes in the Work within the general scope of
   this Contract consisting of additions, deletions or other revisions, the Contract Sum
   and Contract Time being adjusted accordingly.

   ...


                                             -9-

If the Subcontractor at any time shall refuse, fail or neglect to supply adequate and
competent supervision or a sufficiency of properly skilled workmen or materials of
the proper quality or quantity, or fail in any respect to prosecute the “Scope of Work”
with promptness and diligence . . . the Contractor shall have the option . . . to
provide any such labor or materials and to deduct the cost thereof from any money
due or money which becomes due thereafter to the Subcontractor by the
Contractor. The Contractor shall also be at liberty to terminate the Contract . . .

   Davis Brothers not only had contractual control over RMC’s finished work, it had contractual

control over the manner in which RMC performed the work. If Davis Brothers believed that RMC
needed a larger crew, or more materials, it could demand that RMC supply them or face financial
penalties or termination. The contract provides a specific penalty for housekeeping violations. The
wording of the contract leaves little doubt that Davis Brothers had the authority to compel RMC to
abate any other safety violations it detected. Davis Brothers was a controlling employer over RMC
under the multi-employer worksite doctrine.
Does the Cited Standard Apply?
Davis Brothers stipulated in its joint response with the Secretary to the pre-hearing order that
§ 1926.501(b)(1) “applied to work being done on the seventh floor of Building C at the worksite by
Davis Brothers or by Davis Brothers’s subcontractors.” At the time of the stipulation, the Secretary
had cited Davis Brothers because on April 2, 2002, an employee was allegedly “exposed to a fall
hazard of approximately 56 feet while working next to the edge of a roof without a fall protection
system.”
As the hearing progressed, the evidence mounted establishing that the photographed
employee was not actually at the edge of the roof. Diaz and Sotak were looking up at the employee
from a distance of 300 feet. Building A was three stories high while Building C was seven stories
high. The employee’s feet were not visible from that angle and the compliance officers could not
judge how far the employee was standing from the edge of the roof. They declined to estimate the
distance at the hearing (Tr. 30, 65, 101). Messina thought, based on his years in the construction
industry, that the employee was 8 to 10 feet from the edge (Tr. 132).
When Messina went to the roof of Building C at the end of the work day on April 2, he
discovered that the employee could not have been at the edge of the roof. The plywood decking had
not yet been placed around the perimeter of the roof. Any fall would be from the decking to the

                                            -10-

6th floor 8 feet below (Tr. 133, 138). The record establishes that the photographed employee was not
exposed to a fall of 56 feet.
The second morning of the hearing, the undersigned granted the Secretary’s motion to amend,
alleging in the alternative that the employee was exposed to a fall of 8 feet (Tr. 234). In its post-
hearing brief, Davis Brothers asserts that its stipulation that § 1926.501(b)(1) applied to the cited
working conditions was based upon the Secretary’s allegation that the employee was exposed to an
exterior fall of 56 feet. Davis Brothers did not stipulate that the cited standard applies to an interior
8-foot fall. The undersigned agrees with Davis Brothers. The actual working conditions on the roof
of Building C were substantially different from the conditions as represented by the Secretary in the
citation and at the beginning of the hearing. Davis Brothers is not bound by a stipulation based upon
an assumption of facts found to be erroneous.
Davis Brothers argues that there is a standard that is more applicable to the April 2 working
conditions on the roof of Building C: § 1926.451(g)(1), a scaffolding standard. Section
1926.451(c)(1) provides:
Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be
protected from falling to that lower level. Paragraphs (g)(1)(i) through (vii) of this
section establish the types of fall protection to be provided to the employees on each
type of scaffold. Paragraph (g)(2) of this section addresses fall protection for scaffold
erectors and dismantlers.

    Davis Brothers argues that the decking being placed on the roof of Building C was supported

by scaffolding, and that the scaffolding standard only requires fall protection when the scaffold is
more than 10 feet above a lower level. Because the decking was only 8 feet above the lower level,
Davis Brothers argues, no fall protection was needed and it was in compliance with the applicable
standard.
The problem with Davis Brothers’s theory is that there is no evidence that the photographed
employee was standing on scaffolding at the time the compliance officers observed him. There is
some question whether RCM was actually using scaffolding to set the decking in place. Phillip
Bradley is the roaming supervisor for RMC (Tr. 238). Bradley at first attempted to follow Davis
Brothers’s lead in claiming that the supporting scaffolding had a double purpose. As he was pressed
on this characterization, Bradley hedged on the use of the I-beam and plywood structure:

                                              -11-

A. Once you establish the first sheet [of plywood], you’re standing on the plywood.
Once you establish the first sheet of plywood, you would always lay the next piece
of decking off of the plank.

   Q. So, once you’ve established the plywood, once you have laid the first piece of
   plywood, are there times when the guys are still working off of beams when they are
   laying the rest of the decking?

   A. Yes.

   Q. When are those times?

   A. Well, the beams go first, so guys are spreading beams. As soon as they have
   enough beams spread that will hold the plywood, the plywood starts. So the guys
   continue with the plywood as the other guys continue with the beams.

   Q. All right, so you have one set of guys up there that are walking on beams and
   laying beams?

   A. Well, they get laid up there. The beams get laid on top of the stringers. They are
   then walked out. Some plywood is laid. You start laying plywood and as you need
   more, the crane will give you more plywood, and it will give you more beams and
   you will keep continuing out the process. So the guys that are spreading beams are
   actually walking on plywood and on beams.

(Tr. 314-315).
After counsel for Davis Brothers objected to questions to Bradley from counsel for the
Secretary regarding training in scaffolding, counsel for the Secretary responded:
Secretary’s counsel: Well, my understanding is that [Davis Brothers] is claiming that
the decking is scaffolding and –

   A. Decking and scaffolding.

   Judge Spies: Wait a minute. I have an objection. What are you trying to explore
   with the scaffolding in construction; who is qualified?

   Secretary’s counsel: Well, whether or not this is actually scaffolding, and if it’s
   scaffolding, obviously, they would have competent people to erect the scaffolding
   and inspect the scaffolding, and scaffolding a scaffold.

   Judge Spies: Please don’t belabor this, though. You might inquire as to the type of
   scaffolding it is. I didn’t hear anybody say they got on it except maybe with a foot.

                                           -12-

A. How about if I change it to a decking system, and we don’t call it scaffolding?

   Secretary’s counsel: Okay. What is the purpose of the decking system?

   A. To hold the deck in place.

   Secretary’s counsel: Does it have any other purpose?

   A. No.

   Secretary’s counsel: Would you consider a primary purpose of this to be to support
   employees or materials?

   A. Well, it’s to support the deck, and the employees would stand on top of the deck.

   Q. If you were not going to pour concrete on to this platform, would you need that
   scaffolding to hold that up once you set all of your beams?

   A. If I wasn’t going to pour concrete on top of it, I wouldn’t be putting it up. Its only
   purpose is to hold the concrete.

(Tr. 318-319).
Davis Brothers has not shown that a work scaffold existed on the roof of Building C, much
less that the photographed employee was standing on it. Davis Brother’s contention that
§ 1926.451(g)(1) is a more applicable standard than the one cited is rejected. Section 1926.501(b)(1)
applies to the cited conditions.
Did Davis Brothers Violate the Terms of the Standard?
Section 1926.501(b)(1) requires that an employee exposed to a fall hazard of 6 feet or more
be protected by the use of a guardrail system, a safety net system, or a personal fall arrest system.
It is undisputed that neither Davis Brothers nor RMC had a guardrail system or a safety net system
in place on the roof of Building C. The compliance officers testified that the photographed employee
was not tied off (Tr. 115), although the photographs are too blurry to be of use in verifying this.
However, Messina, who emerged as the most credible and informative witness at the hearing,
testified that it was his opinion that the employee had not been tied off (Tr. 119). Neither the
employee witnesses from Davis Brothers nor RMC claimed outright that the employee was tied off.

                                             -13-

It is determined that the photographed employee was not protected by the use of any of the approved
means of fall protection.
Was the Employee Exposed to a Fall Hazard?
The question of exposure is a factual one. Dic-Underhill, a Joint Venture, 4 BNA
OSHC 1489, 1490 (No. 3042, 1976).
The Secretary may prove employee exposure to a hazard by showing that, during the
course of their assigned working duties, their personal comfort activities on the job,
or their normal ingress-egress to and from their assigned workplaces, employees have
been in a zone of danger or that it is reasonably predictable that they will be in the
zone of danger. . . . The zone of danger is determined by the hazard presented by the
violative condition, and is normally that area surrounding the violative condition that
presents the danger to employees which the standard is intended to prevent.
RGM Construction Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995).
None of the factors enumerated above are known about the photographed employee. It is
unknown whether he was photographed while in the course of his assigned work duties or what his
assigned work duties were. It is unknown where he was standing at the time he was photographed.
Messina speculated that the employee was carrying a beam to perform decking, but that was in
response to a request for his speculation. Nothing concrete is known about the employee. He was
not interviewed and no one on the roof of Building C was interviewed during the inspection, and no
one on the roof that day testified at the hearing. No photographs exist that show the configuration
of the decking at the time the photograph was taken. The Secretary contends that her inability to
identify the employee resulted from the RMC employees being sent home once it was known that
OSHA was on the site. Although the Secretary claims Davis Brothers sent the employees home
(Tr. 360), the record on this issue is not clear (Tr. 260, 416). Bradley testified that the RMC
employees were gathered in the parking lot and available for interviews while the compliance
officers were still on site (Tr. 260-262). The Secretary claims she was thwarted in her attempts to
identify and interview the RMC employees. Davis Brothers contends that the compliance officers
showed no interest in interviewing the RMC employees.
It is generally not difficult to prove exposure to a fall hazard, since the Secretary need only
prove that an employee had access to the zone of danger, and not actual exposure to the hazard itself.
But some specific evidence regarding the employee who was allegedly exposed must be adduced.

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A violation must be predicated upon more than a blurry image of a nameless employee engaged in
an unknown activity. The Secretary has failed to establish that the photographed employee was
exposed to an interior fall hazard of 8 feet. The citation is vacated.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
Item 1 of the citation, alleging a repeat violation of § 1926.501(b)(1) is vacated, and no
penalty is assessed.

                                                   /s/
                                                   NANCY J. SPIES
                                                   Judge

Date: June 30, 2003

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