Aquatek Systems

Plain-English summary

Aquatek waterproofed apartment balconies, and its foreman directed two employees to finish work on unguarded balconies without fall protection. The administrative law judge imputed the foreman's knowledge to Aquatek, rejected the company's safety-program evidence, and affirmed a $1,500 citation. The Commission agreed that the foreman's conduct made a prima facie showing of employer knowledge, but held that Aquatek rebutted that showing. Aquatek had clearly communicated a verbal rule against working on unprotected balconies, its owner normally monitored compliance through daily site visits, the employees had no prior violations, and the foreman was reprimanded after the company learned what occurred. The Commission reversed the judge and vacated the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13)
• Outcome: The judge's decision was reversed, and the citation and $1,500 penalty were vacated.
• Key point: A safety rule need not be written when it is clearly communicated and adequately enforced, particularly in a small company with no history of violations.

Full text (OSHRC public release)

Aquatek Systems, Inc., Docket No. 03-1351

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 03-1351

AQUATEK SYSTEMS, INC.,

Respondent.

APPEARANCES:

Howard M. Radzely, Esq., Joseph M. Woodward, Esq., Alexander Fernández, Esq.,

Daniel J. Mick, Esq., Lauren S. Goodman, Esq., Department of Labor, Washington, DC

For the Complainant

Robert E. Rader, Jr., Esq., Rader & Campbell, Dallas, TX

For the Respondent

DECISION

Before: RAILTON, Chairman; and ROGERS, Commissioner.

BY THE COMMISSION:

Before the Commission on review is a decision by Administrative Law Judge
Benjamin R. Loye, in which he affirmed a citation alleging that Aquatek Systems, Inc.
(“Aquatek”) violated 29 C.F.R. § 1926.501(b)(13).

For the reasons below, we reverse
the judge and vacate the citation.

Background

Aquatek is a small company engaged in various types of waterproofing work. At
the subject worksite, Aquatek was under contract to waterproof the balconies and
breezeways on an apartment building located in Euless, Texas. When Aquatek’s
employees arrived at the worksite on the morning of January 7, 2003, all but two or three
of the balconies had guardrails installed. Aquatek foreman Ronnie Morris instructed his
two employees to begin working on the balconies with guardrails while he spoke to the
general contractor about installing guardrails on the unprotected balconies. At
approximately 1:30 p.m., Aquatek had finished waterproofing the balconies with
guardrails, but the general contractor still had not installed guardrails on the remaining
unprotected balconies. As it was late in the workday, foreman Morris assumed that it was
unlikely that the general contractor would install guardrails on the remaining balconies
that day. Since Aquatek was supposed to complete its work at the site by the end of the
day, foreman Morris then instructed his employees to waterproof the remaining
unprotected balconies while working on their hands and knees.

Discussion

The threshold issue on review is whether the Secretary established her burden of
proving knowledge of the cited fall protection violation. Specifically, Aquatek argues
that the judge erred in finding that the Secretary made out a prima facie showing of
knowledge based on foreman Morris’ knowledge of the cited condition, and that Aquatek
failed to rebut this showing.

Under well-established Commission precedent, the Secretary bears the burden of
proof on each element of a violation of a standard, including a showing that the employer
had actual or constructive knowledge of the cited conditions. E.g. , Access Equip. Sys.,
Inc. , 18 BNA OSHC 1718, 1720, 1999 CCH OSHD ¶ 31,821, p. 46,782 (No. 95-1449,
1999). Generally, the actual or constructive knowledge of a supervisor can be imputed to
the employer. E.g. , Dover Elevator Co. , 16 BNA OSHC 1281, 1286, 1993-95 CCH
OSHD ¶ 30,148, p. 41,480 (No. 91-862, 1993). Therefore, the Secretary establishes a
prima facie showing of knowledge by proving that a supervisory employee was
responsible for the violation. See H.E. Wiese, Inc. , 10 BNA OSHC 1499, 1505, 1982
CCH OSHD ¶ 25,985, p. 32,614 (No. 78-204, 1982) (consolidated), aff’d per curiam , 705
F.2d 449 (5th Cir. 1983). Here, it is undisputed that foreman Morris was the supervisor
of the employees and was responsible for directing the employees and ensuring that they
worked safely. See Rawson Contractors, Inc. , 20 BNA OSHC 1078, 1080, 2002-04 CCH
OSHD ¶ 32,657, p. 51,326 (No. 99-0018, 2003) (imputing knowledge of foreman who
was responsible for identifying and taking prompt corrective measures to eliminate
hazards). See also Danis-Shook Joint Venture XXV v. Sec’y of Labor , 319 F.3d 805, 812
(6th Cir. 2003) (knowledge of foreman may be imputed to employer); Dun-Par
Engineered Form Co. , 12 BNA OSHC 1962, 1964-66, 1986-87 CCH OSHD ¶ 27,651,
pp. 36,031-33 (No. 82-928, 1986) (knowledge of foreman who had safety responsibilities
may be imputed to employer). It is also undisputed that foreman Morris was responsible
for the violation by instructing his employees to work on the unprotected balconies
without fall protection. Accordingly, we find that the Secretary made a prima facie
showing of knowledge.     

An employer may rebut the Secretary’s prima facie showing of knowledge with
evidence that it took reasonable measures to prevent the occurrence of the violation. E.g. ,
Dover Elevator , 16 BNA OSHC at 1286, 1993-95 CCH OSHD at p. 41,480; Consol.
Freightways Corp. , 15 BNA OSHC 1317, 1991-93 CCH OSHD ¶ 29,500, p. 39,810 (No.
86-351, 1991). In particular, the employer must show that it had a work rule that satisfied
the requirements of the standard, which it adequately communicated and enforced. Id.
Here, the judge rejected Aquatek’s rebuttal evidence based on his finding that the
company had “no written safety program, no written disciplinary program, [and] no
record of prior disciplinary actions.”

We find that Aquatek took reasonable measures to prevent the occurrence of fall
protection violations. The evidence establishes that Aquatek had a verbal rule specifically
prohibiting its employees from working on balconies without fall protection, and that rule
was adequately communicated to employees, including foreman Morris. Contrary to the
judge, we see no reason to question the adequacy of Aquatek’s safety program simply
because it is not written. The Commission has never required an employer to reduce its
safety rules to writing. See Capform, Inc. , 16 BNA OSHC 2040, 2043, 1993-95 CCH
OSHD ¶ 30,589, p. 42,358 (No. 91-1613, 1994) (Commission does not require safety
rules to be written as long as rules are clearly and effectively communicated to
employees). Indeed, Aquatek’s small size – a total of four employees, including owner
Ken Morris and his brother, foreman Morris – makes it an unlikely candidate for a formal
written safety program of the kind typically associated with larger companies.

We also disagree with the judge’s finding that Aquatek failed to provide sufficient
evidence of enforcement. Based on the record before us, Ken Morris normally monitored
his employees’ compliance with safety rules by making daily visits to worksites, and had
never discovered employees violating Aquatek’s fall protection rule. That he did not visit
this one-day, relatively simple job was therefore reasonable under the circumstances. See
Stahl Roofing, Inc. , 19 BNA OSHC 2179, 2182-83, 2002-04 CCH OSHD ¶ 32,646, p.
51,219 (No. 00-1268, 2003) (consolidated) (citing Dover Elevator , 16 BNA OSHC at
1287, 1993-95 CCH OSHD at p. 41,480) (increased efforts to monitor employee
compliance not required where employees involved had good safety record and had not
previously been found in violation of safety rules). Moreover, Ken Morris’ reprimand of
foreman Morris after discovering that he had violated the fall protection rule demonstrates
that the company enforced its safety rules. See Stahl , 19 BNA OSHC at 2183, 2002-04
CCH OSHD at pp. 51,219-20 (consolidated) (enforcement adequate where employees
disciplined on the few occasions they were found to have violated safety rules). The
Secretary fails to point to anything in the record to establish otherwise.

On this record, we find that Aquatek rebutted the Secretary’s prima facie showing
of knowledge. Accordingly, the Secretary failed to establish a violation of section
1926.501(b)(13).

Order

The judge’s decision is reversed and the citation is vacated.

SO ORDERED.

/s/____

W. Scott Railton

Chairman

_/s/______

Thomasina V. Rogers

Commissioner

Dated: February 2, 2006

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 03-1351

AQUATEK SYSTEMS, INC., and its

successors ,

Respondent.

APPEARANCES:

For the Complainant:

C. Elizabeth Fahy, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas Texas

For the Respondent:  

Robert E. Rader, Jr., Esq., Rader & Campbell, Dallas Texas

Before:             Administrative Law Judge: Benjamin R. Loye

AMENDED DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651-678; hereafter called the “Act”).

Respondent, Aquatek Systems, Inc. (Aquatek), at all times relevant to this action maintained a
place of business at the Mandolin Apartments in Euless, Texas , where its employees were waterproofing balcony decks . On January 7, 2002, Richard S. Ranck, an area director with the Occupational
Safety and Health Administration (OSHA) observed and photographed apparent violations of the Act
at Aquatek’s Euless work site. As a result of those observations and subsequent investigations,
Aquatek was issued a citation alleging a violation of 29 CFR §1926.501(b)(13) of the Act. By filing a
timely notice of contest, Aquatek brought this proceeding before the Occupational Safety and Health
Review Commission (Commission).

On December 3, 2003 a hearing was held in Dallas, Texas. The parties have submitted briefs
on the issues and this matter is ready for disposition.

Alleged Violation

29 CFR 1926.501(b)(13): Each employee engaged in residential construction activities 6 feet or more
above lower levels shall be protected by personal fall arrest systems, safety net systems or guardrails.

On or about January 7, 2003, building #30, Mandolin II Apartment construction site located at
2525 Hwy. 360, Euless Texas: The waterproofing contractor as a controlling employer did not
ensure that a fall protection system such as but not limited to guardrails were erected on an unprotected balcony prior to the start of waterproofing activities.

The cited standard requires:

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 system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure. . . .

Facts

Area director Ranck testified that on January 7, 2003, at approximately 1:30 p.m., he observed
and photographed workers on a second-story balcony of the Mandolin apartments (Tr. 10-16; Exh. C-1
through C-5). Though a number of other balconies were guarded, the balcony in question was
unguarded, and the workers on it were not using any alternative means of fall protection (Tr. 10, 20,
37-38). During the first week of February OSHA Compliance Officer (CO) Joshua Lewis met with the
general contractor at the Mandolin site (Tr. 26, 34). He reviewed the engineering drawings and determined that the second floor balconies were ten feet nine inches above the ground (Tr. 34-35). In mid-April, 2003 Lewis met with Ronnie Morris, the Aquatek supervisor in charge at the Mandolin work
site (Tr. 46, 49, 54, 95). Morris identified himself and the two other workers on the unguarded balcony as employees of Aquatek (Tr. 47-49; Exh. C-2 through C-5).

At the hearing Ronnie Morris testified that on January 7, 2003 his crew arrived on the Mandolin site intending to spray primer and put down peel-and-stick waterproofing (Tr. 97, 99). The only
materials his crew had were the waterproofing and a utility knife (Tr. 100; see also , testimony of CO
Lewis, Tr. 65). According to Morris, there were guardrails on the third floor balconies and 95% of the
second floor balconies (Tr. 101). Morris had his crew start working on the third floor, while he went
to the general contractor to ask that the missing handrails be installed (Tr. 112-13; see also , testimony
of CO Lewis, Tr. 57-58, 65).

Morris understood that the handrails would be installed; however, they
were not in place by the time his crew reached the second floor at around 1:30 (Tr. 113-14). Morris
concluded that, because work normally stopped on construction sites at 3:00 p.m, the railings would
not be installed that day (Tr. 114-15). Rather than halt work Morris instructed his crew to complete
their work on the remaining two or three balconies from their hands and knees to minimize their exposure to the fall hazard (Tr. 117, 124). Morris estimated that it would take 10 to 15 minutes to complete
the waterproofing for each of the remaining balconies (Tr. 50, 98-99, 115). He believed it would take
only a few minutes to complete the job, and that no one would find out about it (Tr. 121). Though
Morris knew he was violating Aquatek’s safety policy, he understood that the concrete on the balconies would be poured the following day, and that he had only that day to complete his work (Tr. 99,
114, 117, 121; see also , testimony of CO Lewis,  Tr. 84). Morris was on site on January 8, 2003,
however, inspecting the previous day’s work (Tr. 100).

Morris’ crew could not have erected the hand rails themselves because they had no wood,
saws, hammers or nails (Tr. 117-18). Though Aquatek uses harnesses and safety lines on some job
sites, Morris’ crew had not brought the fall protection equipment with them (Tr. 118). Morris stated
that there was no place to anchor a safety line in any event (Tr. 119).

Kenneth Morris, Aquatek’s owner, testified that all its employees are trained in fall hazards and
the means of protecting against them (Tr. 126). Ronnie Morris completed a fall protection training
course in February 2001 (Tr. 106, 108-09; Exh. R-4), and was aware that Aquatek’s safety rules prohibit working on unguarded balconies (Tr. 112, 128). Both Kenneth and Ronnie Morris testified that
Ronnie had never violated a safety rule before (Tr. 123, 130). Ronnie Morris stated that, normally, he
would halt work rather than allow his crew to work at heights without fall protection (Tr. 114-16).
Ronnie Morris testified that had Kenneth Morris seen him working without guard rails, he would have
stopped the work and reprimanded him (Tr. 122-23, 126). Kenneth Morris testified identically (Tr.
131). Kenneth Morris testified that he monitors Aquatek’s jobs, though he was not at the cited work
site (Tr. 130). Ronnie Morris was verbally reprimanded when OSHA contacted Aquatek (Tr. 124-25,
131).

None of Aquatek’s employees have ever been injured in a fall during the 12 years it has been in
business (Tr. 127).

Discussion

Non-creating, non-controlling employers. Respondent does not deny the existence of the
cited violative condition, but raises the “limited multi-employer worksite” defense. The Commission
has held that a subcontractor is not liable for violations of the Act where: 1) it did not create the
violative condition; 2) it did not control the violative condition such that it could realistically have
abated the condition in the manner required by the standard; and 3) it made reasonable alternative efforts to protect its employees from the violative condition. See, Capform, Inc. , 16 BNA OSHC 2040,
1994 CCH OSHD ¶30,589(No. 91-1613, 1994); Lee Roy Westbrook Construction Company, Inc. , 13
BNA OSHC 2104, 1989 CCH OSHD ¶28,465 (No. 85-601, 1989).

The evidence establishes that Aquatek did not create the cited violative condition. Nor did it
control the violative condition, as it could not have realistically abated the condition the manner contemplated by the standard. Aquatek expected the general contractor to erect guardrails on all the balconies, and had neither the materials nor the tools with which to erect handrails. It had no fall arrest
systems on the site. After discovering the hazard Aquatek notified the general contractor, asking that
guardrails be installed. Employees were, at first, directed to work only in guarded areas. When the
general contractor had not installed the missing guardrails by 1:30 p.m., Morris abandoned his attempt
to protect his crew from fall hazards, and had them finish the job quickly, on their hands and knees,

in
hopes that no one would notice.         This judge cannot find that Ronnie Morris’ single request to the
general contractor was as much as a reasonable employer would have done to protect its employees in
these circumstances. In balancing the cited hazard against Aquatek’s concern for efficiency and economy this judge notes that Aquatek’s owner testified that he would have stopped work, rather than allowing employees to proceed without fall protection. In this case, where the owner would have done
more than its supervisor, who made only a single complaint to the general contractor, I cannot find that
the employer took reasonable alternative steps to protect its employees. See, Capform, Inc. , 16 BNA
OSHC 2040, 1994 CCH OSHD ¶30,589(No. 91-1613, 1994). Aquatek failed to prove this affirmative
defense.

Knowledge. It is undisputed that Ronnie Morris was aware of the cited violation. Aquatek
maintains, however, that it could not have known that its supervisor would ignore company work rules
and allow employees to work without fall protection. The Commission has held that once the Secretary has made a prima facie showing of employer knowledge through its supervisory employee, the
employer can rebut that showing by establishing that the failure of the supervisory employee to follow
proper procedures was unpreventable. In particular, the employer must establish that it had relevant
work rules that were adequately communicated and effectively enforced. Consolidated Freightways
Corp. , 15 BNA OSHC 1317, 1991-93 CCH OSHD ¶29,500 (No. 86-531, 1991).

In this case, three employees were observed working without fall protection with the express
approval of their supervisor, Morris, who instructed them to violate a well recognized safety rule in the
performance of a standard task. Aquatek has no written safety program, no written disciplinary program, no record of prior disciplinary actions. Aquatek relies solely on Kenneth and Ronnie Morris’
assertions that Aquatek had a safety program including a rule requiring the use of fall protection at
heights over six feet, and that there were no prior violations of those rules requiring disciplinary action. The only discipline meted out in this instance was a verbal reprimand to the supervisor.

The Commission has held that unanimity of noncomplying conduct by all employees suggests
ineffective enforcement. Gem Industrial, Inc., 17 BNA OSHC 1861, 1865, 1996 CCH OSHD ¶31,197
(No. 93-1122, 1996). It has further held that misconduct by a supervisor constitutes strong evidence
that an employer’s safety program is lax. Consolidated Freightways Corp. , 15 BNA OSHC 1317,
1991-93 CCH OSHD ¶29,500 (No. 86-351, 1991) ; New England Tel. & Tel. Co. v. Secretary of Labor ,
589 F.2d 81, (1 st Cir. 1978). Aquatek’s showing failed to establish that it effectively enforced its fall
protection rules. It’s disciplinary program, never utilized until Aquatek received the OSHA citations
at bar, clearly failed to influence the behavior of its employees, who uniformly disregarded its fall protection rules when it was more convenient to do so. Precast Services, Inc., 17 BNA OSHC 1454, 1995
CCH OSHD ¶30,910 (93-2971, 1995). Moreover Aquatek simply did not introduce any evidence establishing that it exercised reasonable diligence in discovering violations of its fall protection rules.
Pace Construction Corp. 14 BNA OSHC 2216, 1991-93 CCH-OSHD ¶29,333 (No. 86-758, 1991).

As Aquatek failed to rebut the Secretary’s prima facie showing of knowledge, this violation is
established.

Penalty

Aquatek is a small employer with four employees (Tr. 94). Three employees were exposed to
the 10 foot 9 inch fall hazard for approximately 15 minutes per balcony. Area Director Ranck testified
that between July 23, 2003 and December 1, 2003, OSHA investigated 11 fatalities resulting from falls
of 10 feet 9 inches or less (Tr. 23). CO Lewis testified that the likelihood of an accident occurring was
high as the employees had to work at the edge of the balcony while laying waterproofing (Tr. 52).

The proposed penalty, $1,500.00, is deemed appropriate, and will be assessed.

ORDER

1. Citation 1, items alleging violation of 29 CFR 1926.501(b)(13) is AFFIRMED, and a penalty
   of $1,500 is ASSESSED.

/s/

Benjamin R. Loye

Judge, OSHRC

Dated: March 25, 2004