CWJ Contracting, Inc.

Plain-English summary

CWJ Contracting framed apartment buildings, and its superintendent stood on narrow joists of an undecked second-floor balcony about 10 feet above a concrete patio without fall protection. The judge held that CWJ's controlled-access-zone plan did not apply because the superintendent was discussing and measuring a brick-placement problem, not performing leading-edge construction. The judge also rejected the greater-hazard defense because safer alternatives and conventional fall protection were available, and rejected employee misconduct because CWJ's rule was unclear and its discipline was ineffective. A prior substantially similar fall-protection citation supported repeat classification, and the judge assessed a $3,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13)
• Outcome: The repeat fall-protection violation was affirmed with a $3,000 penalty.
• Key point: A residential controlled access zone does not excuse conventional fall protection for supervisory or quality-control activity that is not directly assisting leading-edge work.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 03-0927 (EZ)
CWJ Contracting, Inc.,
Respondent.

Appearances:

           Dane L. Steffenson, Esquire                            Mr. Hal Morrow, PSC
              Office of the Solicitor                                 Morrow & Associates
             U. S. Department of Labor                                Jacksonville, Florida
              Atlanta, Georgia                                            For Respondent
                   For Com plainant

Before: Administrative Law Judge Ken S. Welsch

                                 DECISION AND ORDER

           CWJ Contracting, Inc. (CWJ), as the framing contractor, was constructing three-

story garden apartments in Lawrenceville, Georgia, when the site was inspected by the Occupational
Safety and Health Administration (OSHA) on March 12, 2003. As a result of the OSHA inspection,
CWJ received a repeat citation on April 24, 2003. CWJ timely contested the citation.
The repeat citation alleges that CWJ violated 29 C.F.R. § 1926.501(b)(13) by a
superintendent’s failure to utilize fall protection while standing on a second floor undecked balcony.
The repeat violation proposes a penalty of $4,000. The classification of a “repeat” citation is based
on a serious citation issued to CWJ on April 29, 2002, for violation of 29 C.F.R. § 1926.501(b)(1),
which was informally settled by the parties.
 The case was designated to proceed under the Review Commission’s E-Z Trial
proceedings at 29 C.F.R. § 2200.200, et seq. A hearing was held in Atlanta, Georgia, on July 21,
2003. The parties stipulated coverage and jurisdiction (Tr. 5). CWJ was represented by its outside
safety consultant.
CWJ denies the alleged violation of § 1926.501(b)(13) and the repeat classification.
It asserts that its supervisor was within its controlled access zone in accordance with OSHA’s STD
3.0-1A. CWJ claims a greater hazard defense. If a violation is found, CWJ also asserts
unpreventable employee misconduct by its supervisor.
For the reasons discussed, OSHA’s STD did not apply to the job being performed at
the time of the supervisor’s exposure, and the use of conventional fall protection was not shown to
create a greater hazard. Also, CWJ’s unpreventable employee misconduct defense is rejected. The
repeat citation is affirmed and a total penalty of $3,000 is assessed.

                                        Background

           As a framing contractor, CWJ is responsible for erecting the wooden shell of a

building consisting of the walls, floors, and roof. CWJ’s work is primarily residential construction,
including multi-family apartment buildings. CWJ has nine employees who supervise the work on
various projects and employs subcontractors to perform the actual construction work. CWJ is owned
by Curtis Wilson, Jr., who resides in Alabama (Tr. 88, 122-123, 183, 185).
In 2002, PRS Construction, general contractor, contracted CWJ to perform the wood
framing work for a new garden apartment complex in Lawrenceville, Georgia, referred to as
“Herrington Mills.” The complex consists of eight 3-story garden apartment buildings with one, two
and three bedroom apartments. The exterior of the buildings is brick. Each building has
approximately 32 units and each floor is approximately 8,000 square feet (Tr. 59, 183, 187-188, 207,
213).
CWJ started the wood framing work for Herrington Mills in December 2002. James
Lane was CWJ’s superintendent of the project and its only employee on the site. He has been a CWJ

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superintendent for three years. As superintendent, Lane’s responsibilities included laying out the
work, supervising the work of subcontractors’ employees, scheduling, materials, quality control and
safety. Lane supervised two subcontractors with approximately 15 employees. Lane’s safety
responsibilities extended to the safety of the subcontractor’s employees. For fall protection on the
project, CWJ relied, in part, on a controlled access zone (CAZ) program (Exh. R-1; Tr. 121-123,
184, 186). CWJ designated an area a CAZ by placing signs in the breezeways (Tr. 130-131). Lane
was also CWJ’s competent person for the project designated in its CAZ plan (Exh. R-1; Tr. 129).
On March 12, 2003, OSHA safety compliance officer Robin Bennett initiated a
planned inspection of the Herrington Mills project (Tr. 16, 84). Upon arriving on the site at
approximately 9:30 a.m., Bennett observed CWJ superintendent Lane standing on a second floor
balcony in Building #71, which was unguarded and undecked, meaning the floor joists were installed
but there was no plywood decking (Exh. C-1; Tr. 18, 21-22). It is undisputed that Lane was not
utilizing a fall arrest system and was not protected from falling by guardrails or safety nets (Tr. 23,
141-142). CWJ was responsible for constructing the balconies (Tr. 132, 194). Another employee,
Action Masonry Construction’s job supervisor, Jason Meyer, was standing in the apartment
doorway’s entrance to the balcony2 (Tr. 21).
The second floor balcony was approximately 10 feet above a concrete patio on the
first floor (Tr. 22, 141, 159). The balcony was approximately 8 feet wide and 10 to 12 feet long (Tr.
140). It was not decked (Tr. 22, 132). It consisted of 2- x 10-inch floor joists set on 16-inch centers
with an approximate 14-inch space between the joists (Tr. 137). Lane was standing on the joists by
the storage room door accessed from the balcony (Tr. 140). He was approximately 5 feet from the
balcony’s edge which was unguarded (Tr. 22, 69, 140-141). Lane had requested brick mason Meyer
to meet at the balcony to discuss an ongoing problem with the placement of bricks below the storage

1

Based on her understanding, Bennett identified the building as #2 (Tr. 58). Superintendent Lane referred to the
building as Building # 7 (Tr. 124). The parties stipulated that Build ing #7 a nd B uilding #2 are the sa me (Tr. 187).
For the purposes of this decision, it will be referred to as Building #7.
2

Action M asonry C onstruction wa s also cited for lack of fall prote ction un der § 19 26.501(b )(13) (Tr. 216).

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room door’s threshold.3 Enough space needed to be left between the threshold and the brick exterior
for CWJ to install the balcony decking and flashing (Tr. 135, 213). According to Lane, the elevation
of the brick was interfering with the installation of the deck (Tr. 135, 189-191).4 When standing on
the joists, Lane measured the space below the threshold and discussed the problem with Meyer, who
remained in the apartment’s doorway (Tr. 210, 217). Lane stood on the joists for approximately two
minutes before leaving the balcony (Tr. 192, 217).
As a result of Bennett’s observation, CWJ received a repeat citation for violation
of § 1926.501(b)(13) because of Lane’s exposure to a fall hazard of 10 feet while standing on the
joists. CWJ’s work at the Herrington Mills apartments were completed in June 2003 (Tr. 185).

                                               Discussion

              The Secretary has the burden of proving a violation.
              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., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

              There is no dispute that the Part 1926 construction standards apply to CWJ’s framing

activities at the project. Also, the parties stipulate that CWJ’s framing work on the garden
apartments was “residential construction” within the meaning of § 1926.501(b)(13) (Tr. 7). The
project involved the construction of multi-family apartment buildings.

3

According to Meyer, there was also a problem w ith the area leaking under the storage room door (Tr. 208-
209). Th is wa s also B enne tt’s understan ding w hy L ane w as on the balcon y (Tr. 32).
4

Lane described this as a “unique situation” required by the county (Tr. 156). Norma lly, the decking is installed

on the balcony a s soon a s the joists are placed.

                                                     4

Alleged Violation of §1926.501(b)(13)

           The citation alleges that CWJ’s superintendent failed to utilize conventional fall

protection while standing on a second floor undecked balcony. Section 1926.501(b)(13) provides:
Each employee engaged in residential construction activities 6 feet
(1.8 m) or more above lower levels shall be protected by guardrail
systems, safety net systems, or personal fall arrest system unless
another provision in paragraph (b) of this section provides for an
alternative fall protection measure. Exception: When the employer
can demonstrate that it is infeasible or creates a greater hazard to use
these systems, the employer shall develop and implement a fall
protection plan which meets the requirements of paragraph (k) of
§1926.502.

           Note: There is a presumption that it is feasible and will not create a greater hazard
           to implement at least one of the above-listed fall pro tection systems. A ccordingly,
           the employer has the burden of establishing that it is appropriate to im plem ent a fall
           protection plan which complies with 1926.502(k) for a particular workplace
           situation, in lieu of implementing any of those systems.


           The essential facts are undisputed. Lane was standing on the 2-inch side of joists

approximately 10 feet above a concrete patio (Exh. C-1). The joists were in excess of 14 inches
apart. Lane was also standing less than 5 feet from the balcony’s unguarded edge. Lane was not
protected from a fall hazard by guardrails, safety nets, or personal fall arrest protection. While Lane
was on the balcony, there were no decking materials or decking work being performed on the
balcony. Lane was on the balcony to discuss a problem with the brick mason about the space below
the storage room door’s threshold. He also measured the space below the threshold. Lane stood on
the undecked balcony for approximately two minutes.
CWJ argues that the balcony was a CAZ, and under its plan conventional fall
protection was not required based on OSHA’s CPL 3-0.1A issued June 18, 1999 (Exhs. R-1, R-2).
CWJ’s plan permits the use of a CAZ instead of conventional fall protection on the Herrington Mills
project when installing roof trusses and rafters, performing roof sheathing operations, erecting
exterior walls, and installing joists and floor sheathing when involved in leading edge

                                                      5

construction5 (Exh. R-1, p. 13). Lane testified that the balcony was a leading edge (Tr. 143, 159).
He considered his job on the balcony as part of his quality control responsibilities (Tr. 135, 143).
CWJ’s argument that the balcony was a CAZ is rejected. At the time Lane was
standing on the balcony, CWJ was not engaged in installing joists or decking on the balcony. He
was not engaged in any of the activities encompassed by CWJ’s CAZ plan or OSHA’s STD.
OSHA’s STD 3.1 issued December 8, 1995, and as rewritten STD 3-0.1A, issued June 18, 1999,
permits employers such as framing contractors engaged in certain residential construction activities,
including the installation of floor joists and floor sheathing when less than 48 feet above ground
level to use alternative procedures instead of conventional fall protection. The alternative procedures
include employee training, supervision, and the use of CAZs (Exh. R-2).
During the installation of floor joists and floor sheathing, the STD provides that
“while this work is taking place, workers not directly assisting in it shall not be permitted within six
(6) feet of the leading edge” (Exh. R-2, p. 9). Lane was not “directly assisting” in the leading edge
work by standing on the balcony and discussing a problem regarding the installation of the brick
facie with the brick mason. CWJ’s installation of the decking was not to have taken place until after
the brick masons completed bricking the exterior (Tr. 193). Lane was performing no work to which
the STD applied.
It is also noted that Lane was not complying with CWJ’s CAZ plan. Lane agreed that
no safety monitor was present and that the second floor was no longer a CAZ (Tr. 132, 141, 143).
Also, he testified that he should have “put a piece of temporary flooring down over the joists” (Tr.
159). However, CWJ’s plan provides that the first floor joist or the first row of sheathing was to be
installed from ladders or the ground. The successive joists or sheathing was to be installed from
plywood laid over the previously secured joists or from the established deck.

5

The Secretary defines “leading edge” a s:

              . . . the edge of a floor, roof, or formwork for a floor or other walking/working
              surface (such as the de ck) w hich ch ange s location as add itional floor, roof,
              decking, or formw ork sectio ns are pla ced, form ed, or con structed. A leading is
              considered to be an “unprotected side and edge” during periods when it is not
              actively and continuously under construction.

                                                      6

Lane was not engaged in leading edge work. According to Lane, the building was
99 percent completed (Tr. 194). CWJ needed only to complete the balconies, install some siding,
and complete the “punch out” work (Tr. 194). Lane testified that the second floor was no longer a
CAZ (Tr. 132). At the time of OSHA’s inspection, Lane’s discussions involving the brick elevation
was CWJ’s only work being performed on Building #7 (Tr. 196). There was no decking material
on the balcony (Tr. 165). Also, no decking was being installed on the balcony (Exh. C-1; Tr. 24, 63).
Lane’s discussions with the brick mason, although within Lane’s quality control responsibilities,6
were not “directly assisting” leading edge work as contemplated by the STD or CWJ’s CAZ plan
(Exhs. R-1, R-2). CWJ’s plan recognizes that employees not engaged in the leading edge work such
as those cutting the decking for the installers are not permitted within 6 feet of the edge (Exh. R-1).

               Since STD 3-0.1A does not apply, Lane’s activities are governed by the terms

of § 1926.501(b)(13). There is no dispute that Lane was not utilizing personal fall arrest protection,
and he was not protected by guardrails or safety net systems (Tr. 141-142). He was exposed to a fall
of 10 feet to a cement patio (Tr. 141).
The record, therefore, establishes CWJ’s noncompliance with the terms of §
1926.501(b)(13), and employee exposure to a fall hazard in excess of 6 feet without fall protection.
Employee exposure is based on superintendent Lane’s two minute exposure on the unprotected
joists. Even a brief exposure to hazardous conditions such as a fall hazard does not negate a
violation or its seriousness. Flint Engineering & Construction Co., 15 BNA OSHC 2052, 2056 (No.
90-2873, 1992).
The record also establishes the employer’s knowledge of the condition based on the

6

Althou gh not argued by C W J, it is noted that § 1926.500(a) provides that “the provisions of this subpart do not
apply when emp loyees are m aking an inspection, investigation, or assessment of workplace conditions prior to the
actual start of construction work or after all construction work has been com pleted.” As an exception to the standards
application, suc h ex ceptio n is n arro wly cons true d. A party seeking the bene fit of an exception to a legal requirement
has the burden of proof to show that it qualifies for that exception. Armstrong Steel Erectors, Inc., 17 BNA OSHC 1385,
1389 (No. 92-262 , 1995). Exemptions under remedial legislation are to be narrowly construed. Lane described his job
on the balcony as part of his quality control duties. Also, Lane’s exposure occurred while construction was ongoing.
C W J still had to install the balcony decking. C WJ’s construction work had started in December 2002 and was not
completed until June 2003 (Tr. 184 -185).

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imputed knowledge of its superintendent. When a supervisory employee such as Lane has actual or
constructive knowledge of the violative conditions, knowledge is imputed to the employer. Dover
Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). “Because corporate employers can
only obtain knowledge through their agents, the actions and knowledge of supervisory personnel are
generally imputed to their employers, and the Secretary can make a prima facie showing of
knowledge by proving that a supervisory employee knew of or was responsible for the violation.”
Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598, 1984).
Lane, in addition to being the exposed employee, was CWJ’s superintendent and
competent person for the Herrington Mills project (Tr. 121, 133). He was the only CWJ employee
on the site (Tr. 123). His responsibilities included supervising the work of subcontractors and safety
training (Tr.122-123, 203). As the exposed employee, CWJ’s only employee on the site, and its
employee delegated with full supervisory authority, Lane’s knowledge of the unsafe condition is
imputed to CWJ.
A violation of § 1926.501(b)(13) is found unless CWJ can demonstrate infeasibility
or a greater hazard. In this case, CWJ does not assert, and the record does not support, a finding of
infeasibility. The standard presumes the feasibility of conventional fall protection. CWJ did not
argue or make any showing that if it was necessary for Lane to stand on the undecked joists, personal
fall arrest protection, including a body harness and lanyard, was not feasible. The photograph of the
site shows a number of potential anchor points for personal fall arrest systems including the joists
on the balcony above (Exh. C-1).

                                  Greater Hazard Defense

           Section 1926.501(b)(13) requires the use of conventional fall protection when

employees are exposed to a fall hazard in excess of 6 feet unless the employer can demonstrate that
it creates a greater hazard to use these systems. To establish a greater hazard defense, the employer
must show by a preponderance of the evidence that (1) the hazards of compliance with the standard
are greater than the hazards of noncompliance; (2) other methods of protecting employees from the
hazards are not available; and (3) a variance is not available or its application is inappropriate.

                                              8

Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC 1218, 1224-1225 (No. 88-821,
1991).

                                     9

Section 1926.501(b)(13) presumes that conventional fall protection does not create
a greater hazard. The mere assertion of the greater hazard defense is insufficient. The burden placed
on the employer is “to establish the worksite-specific circumstances that precludes reliance on
conventional fall protection to protect employees from fall hazards.” 59 Fed. Reg. 40,672, 40,684-
40,685 (August 9, 1994). The employer’s burden is to demonstrate a greater hazard “under the
particular circumstances” of the case. Reich v. Trinity Industries, Inc., 16 F.3d 1149, 1155 (11th Cir.
1994).
CWJ’s CAZ plan does not address the fall protection measures required by an
employee performing quality control or inspection activities such as Lane was performing while
standing on the balcony. Also, the CAZ designation had been removed from the second floor.
Further, the record does not show any reason, other than measuring the space below
the door’s threshold, for Lane to be standing on the joists (Tr. 210, 217). According to brick mason
Meyer, their discussions could have been conducted below the balcony or inside the apartment
behind the guardrail, which Lane had removed to access the balcony (Tr. 141, 169, 209-210, 217).
Also, Meyer agreed that Lane’s measurement could have been taken from underneath the balcony
from a ladder or standing on sawhorses (Tr. 210-211).
Lane’s argument that the slight slope (1/8- to 1/4-inch per foot) in the concrete patio
was a hazard to the placement of a ladder or sawhorse is rejected (Tr. 162, 201-202). The slope was
minimal and could be taken into account in placing the ladder or sawhorse. Also, the use of a ladder
or sawhorse would not expose the employee to a fall hazard in excess of 6 feet. Lane agreed that it
was possible to work from a ladder or sawhorse (Tr. 161-162).
The Subpart M “Fall Protection” requirements direct employers to first consider the
elimination of fall hazards on each worksite. Lane agreed that he could have placed sheathing
temporarily over the joists (Tr. 146, 159).
In situations where conventional systems are not used, OSHA does
not encourage employers to elect the safety monitoring system as a
first choice. Rather, the Agency will permit it to be used in those
circumstances when no other alternative, more protective measures
can be implemented. Examples of such protective measures include
having employees work from scaffolds, ladders, or vehicle mounted

                                              10

work platforms to provide a safer working surface and thereby reduce
the hazard of falling. . . .Accordingly, OSHA has determined that the
employer must do what it can to minimize exposure to fall hazards,
before turning to the use of safety monitoring systems (29 C.F.R.
502(h)) under a fall protection plan. (59 Fed. Reg. at 40,719-40,720).

           Also, the greater hazard defense under § 1926.501(b)(13) applies to the use of

conventional fall protection such as personal fall arrest systems to reduce an employee’s exposure
to a fall hazard. The use of conventional fall protection systems such as a personal fall arrest system
by Lane while standing on the joists was not addressed by the parties. CWJ, who has the burden of
establishing the greater hazard defense, failed to offer any evidence that such systems could not have
been utilized in protecting Lane or that the use of conventional fall protection would have created
a greater hazard to Lane. CWJ has the conventional fall protection equipment, including safety
harnesses and lanyards, and the record shows that such equipment could have been adequately
anchored and utilized (Exh. C-1; Tr. 222). It is noted that in installing the brick facie, scaffolding
was placed on the concrete patio for the brick masons to brick around the balcony (Tr. 213-214).
Also, there is no evidence that CWJ applied for a variance (Tr. 158).
CWJ’s greater hazard defense is rejected. Noncompliance with the requirements
of § 1926.501(b)(13) is established.
Employee Misconduct Defense

           If noncompliance with the standard is found, CWJ asserts unpreventable employee

misconduct on the part of Lane, its superintendent. In order to establish the affirmative defense of
employee misconduct, an employer must show that it has (1) established work rules designed to
prevent the violation, (2) adequately communicated these rules to its employees, (3) taken steps to
discover violations, and (4) effectively enforced the rules when violations are discovered. American
Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).
However, “[w]hen the alleged misconduct is that of a supervisory employee, the
employer must also establish that it took all feasible steps to prevent the accident, including adequate
instruction and supervision of its employee.” Archer-Western Contractors Ltd., 15 BNA OSHC
1013, 1017 (No. 87-1067, 1991). The Review Commission has noted that “where a supervisory

                                              11

employee is involved, the proof of unpreventable employee misconduct is more rigorous and the
defense is more difficult to establish since it is the supervisors’ duty to protect the safety of
employees under his supervision.” Id. at 1017. Also, the “fact that a supervisor would feel free to
breach a company safety policy is strong evidence that the implementation of the policy is lax.” Id.
at 1017.
CWJ’s Work Rule
The essential element of the employee misconduct defense is a showing that the
employer has an established work rule designed to prevent the violation. Pride Oil Well Service, 15
BNA OSHC 1809, 1816 (No. 87-692, 1992). A work rule is defined as “an employer directive that
requires or proscribes certain conduct and that is communicated to employees in such a manner that
its mandatory nature is made explicit and its scope clearly understood.” J. K. Butler Builders, Inc.,
5 BNA OSHC 1075, 1076 (No. 12354, 1977) (employer’s warning to employees to avoid unsafe
areas was “too general to be an effective work rule”).
CWJ failed to show an established safety rule which addressed the activities engaged
into by Lane while on the balcony. Also, as discussed, CWJ”s fall protection plan for the Herrington
Mills project prohibited from the CAZ “workers not assisting in leading edge construction while
leading edges still exist (e.g., cutting the decking for installers)” (Exh. R-1, p. 13). There was no
specific safety rule prohibiting an employee from standing on undecked joists. However, the plan
did provide that while installing floor joists and sheathing, the first joist or row of sheathing was to
be installed from the ground, ladders or sawhorse scaffolds (Exh. R-1, p. 13). As discussed, floor
sheathing was not being installed.
Lane testified that he was performing his quality control responsibility in measuring
the distance below the door’s threshold, and such work was assisting the leading edge construction
(Tr. 135, 182). Lane also testified that he was not acting in compliance with CWJ’s safety program
(Tr. 143). He should have laid “some kind of sheathing down” (Tr. 146). However, he believed that
his activities were within OSHA standards for leading edge work (Tr. 146).
Lane was CWJ’s superintendent and competent person on the project (Tr. 121, 133).
His duties included safety and safety training (Tr. 122). Lane’s belief that he was not complying

                                              12

with CWJ’s safety program is contrary to his statement a week earlier during his deposition when
he

stated that “CWJ said it was all right for people to walk on trusses [joists] once they were trained”
(Tr. 151). After rereading CWJ’s plan at the hearing, Lane testified that under CWJ’s safety policy,
employees are not allowed to stand on floor joists (Tr. 226, 229). He also testified that he thought
it was all right to stand on floor joists if working the leading edge because he had been “trained to
be out on that stuff” (Tr. 152, 154). He testified that subcontractors regularly lay the first pieces of
plywood decking on the floor from the floor joists instead of from the ground or a ladder as stated
in CWJ’s plan (Tr. 150-151).
Based on Lane’s testimony, any CWJ’s work rule regarding standing on joists is
nonexistent, ambiguous, or unclear. The work rules do not specifically prohibit such activity.
CWJ’s Communication of Work Rule

           Lane testified that CWJ’s fall protection plan was actively communicated to him and

other employees by the owner and its safety consultant, Morrow & Associates (Tr. 223). He said that
owner Curtis Wilson, Jr., was present on the jobsite at least once a month (Tr. 124). Also, the
consultant who prepared the CAZ fall protection plan for Herrington Mills came to the job site and
trained employees (Tr. 128). Employees are permitted to ask questions during training, and they sign
a form showing that they have received the training (Tr. 128). Such training was provided on
December 2, 2002, and February 3, 2003 (Exh. R-5).
Despite this training, Lane believed that he could stand on the joists without fall
protection and that he was in compliance with OSHA’s leading edge requirements (Tr. 146, 151).
Lane’s responsibilities as superintendent included employees’ safety on the job and safety training.
At the time of the incident, he believed that he was complying with CWJ’s program (Tr. 200).
Lane’s confusion shows that CWJ’s safety rules were not effectively communicated at least to him.
CWJ’s Steps to Discover Violations

           Another factor considered in determining whether an employer effectively enforced

                                              13

its safety rules are its efforts to monitor adherence to those safety rules by supervisory employees.
Dover Elevator Co., 15 BNA OSHC 1378, 1382 (No. 88-2642, 1991).

                                             14

Lane testified that owner Wilson and CWJ’s consultant, Morrow & Associates,
regularly visited the jobsite. Wilson was on the site at least once a month (Tr. 124). The safety
consultant inspected the work site every two weeks (Tr. 147). The consultant observed “the way
they were setting up and working” (Tr. 224).
Lane was CWJ’s only employee on the site. The record reflects that CWJ’s safety
training and monitoring for problems may have been more directed to the subcontractors used by
CWJ to perform the work than it was directed to superintendent Lane. CWJ’s monitoring
overlooked its main person on site.
CWJ’s Discipline

             Adequate enforcement of work rules is a critical element of the employee misconduct

defense. To prove that a disciplinary system is more than a paper program, an employer must show
evidence of actually administering the discipline outlined in its policy and procedures. See Pace
Constr. Corp., 14 BNA OSHC 2216, 2218 (No. 86-758,1991). Although an employer has a system
of verbal reprimand and written reprimands, if it is not enforced, it is ineffective. GEM Industrial
Inc., 17 BNA OSHC 1861, 1864-1865 (No. 93-1122, 1996), aff’d, 18 BNA OSHC 1358 (6th Cir.
1998) (oral reprimands were an ineffective enforcement method, noting that the same work rule had
been violated three times in the month prior to the OSHA inspection). The repeated noncompliance
of safety rules indicates ineffective enforcement. The record should establish the existence of an
active and effective program directed at ensuring that, insofar as possible, supervisors follow all
OSHA and company rules regarding its work. L.E. Myers Co., 16 BNA OSHC 1037, 1042 (No.
90-945, 1993).
CWJ did not show that it had an effective disciplinary program. CWJ’s CAZ plan
for Herrington Mills states that CWJ “reserves the right to issue disciplinary warnings to employees
and/or subcontractors, up to and including termination, for failure to follow the guidelines of this
Program” (Exh. R-1, p. 15). Lane testified that he has been “written up” for safety violations
approximately fifty to sixty times in three years (Tr. 149, 167). He has been written up for
employees walking on joists, but he could not recall specific incidents (Tr. 148-149, 152). It was

                                             15

not shown that any of the “write-ups” occurred at Herrington Mills. No records of the “write-ups”
were maintained after the job was completed (Tr. 232). Lane testified that the violations did include
fall protection problems (Tr. 167). He also testified that he corrected the safety violations within 24
hours (Tr. 149).
The number of times that Lane has been “written up” suggests an ineffective safety
enforcement program. Other than being written up, no other action was taken such as lost pay,
suspension, or possible termination (Tr. 152). Such other action was only “threatened” (Tr. 152).
Sixty safety violations over a three-year period equals approximately two violations per month by
one individual. This number appears excessive and shows CWJ’s disciplinary program.
CWJ’s employee misconduct defense is rejected.
Repeat Classification

               CWJ’s violation of § 1926501(b)(13) is established. The violation is classified as

repeat. A repeat violation under § 17(a) of the Occupational Safety and Health Act is established
if, at the time of the alleged repeat violation, there was a Commission final order against the
employer for a substantially similar violation. Potlatch Corporation, 7 BNA OSHC 1061, 1063 (No.
16183, 1979). The Secretary may establish substantial similarity by showing that the violations are
of the same standard or, if different standards, by showing similar hazards and means of abatement.
Monitor Construction Co., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).
In this case, the prior citation issued on April 29, 2002, at a worksite in Mobile, Alabama,
was a serious violation of § 1926.501(b)(1) for failing to provide fall protection to subcontractor
employees installing plywood decking to a roof. The employees were exposed to a fall hazard of 29
feet. The citation was informally settled by the parties with a reduction in the proposed penalty
(Exh. C-4).7

7

CW J received another serious citation issued on July 30, 2001, for violation of § 1926.501(b)(1). This prior citation
was also informally settled by the parties with a reduction in the pe nalty (E xh. C -3). Due to an oversight, Compliance
Officer Bennett testified tha t the 2001 citation w as not inc luded a s a basis for C W J’s repeat c lassification (T r. 39).
To avoid prejudice to CW J, the earlier citation is also not included as a basis for repeat classification in this decision.

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The requirements under § 1926.501(b)(1), which involve “unprotected sides and
edges,” are similar to the “residential construction” requirements under § 1926.501(b)(13). Both
standards require fall protection if the employee’s exposure is “6 feet (1.8 m) or more above a lower
level.” Also, both standards require that the employee be protected from falling by use of “guardrail
systems, safety net systems, or personal fall arrest systems.” The only distinction between the
standards is that § 1926.501(b)(13) permits an employer to implement a fall protection plan which
complies with § 1926.502(k) if the employer can demonstrate an infeasibility or greater hazard.
For the purposes of a repeat classification, the two standards are substantially similar.
The hazard addressed in both standards is the potential for falling from surfaces in excess of 6 feet.
Similarly, the means of abating the fall hazard including guardrails, safety nets, or personal fall arrest
systems are the same under both standards. As noted in Monitor Construction Co., Id. at 1594, any
differences in the factual occurrences, geographical locations, commonality of supervisory control
over the violative conditions, and the time lapse between violations are not deciding factors in
determining the repeat classification.
CWJ’s violation of § 1926.501(b)(13) is repeat.

                                     Penalty Consideration

            The Commission is the final arbiter of penalties in all contested cases. In determining

an appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
CWJ has nine employees and is given credit for size as being a small employer (Tr.
88). No credit is given to CWJ for history in that it has received two serious citations for failing to
provide fall protection within the preceding three years (Exhs. C-3, C-4). CWJ is entitled to good
faith credit because it did have a fall protection plan for the Herrington Mills project (Exh. R-1).
CWJ hired a safety consultant, had a written fall plan for the project, and regularly inspected
the worksite (Tr. 147, 222). OSHA’s failure to give good faith credit based on a belief that CWJ’s

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training program was deficient (Tr. 42-43, 95). It is noted that CWJ did not receive a citation for an
inadequate training program. Also, mandatory training by an outside consultant (Morrow &
Associates) was provided at least twice on the Herrington Mills project (Exh. R-5). The lack of fall
protection involved only one employee who was exposed for approximately two minutes, and was
the only violation found during OSHA’s four-hour inspection of CWJ (Tr. 85).
A $3,000 penalty for violation of § 1926.501(b)(13) is reasonable. The exposure of
Lane on the joists was two minutes, which is of short duration (Tr. 192, 217). However, Lane was
CWJ’s superintendent of the project as well as its competent person. Lane’s responsibilities
included safety and safety training. Lane was exposed to a fall hazard of 10 feet to a cement patio.
He was standing on 2-inch wide joists approximately 14 inches apart without any fall protection.
He was also less than 5 feet from the unguarded edge of the balcony.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

           The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

           Based upon the foregoing decision, it is ORDERED:
           Repeat violation of § 1926.501(b)(13) is affirmed and penalty of $3,000 is assessed.




                                                   /s/
                                                  KEN S. WELSCH
                                                  Judge

Date: August 21, 2003

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