Guamcell Communications

Plain-English summary

An acting Guamcell supervisor stood without fall protection on the parapet of a ten-story building while adjusting a cellular antenna. Guamcell admitted the standard applied, the supervisor violated it, and a fall could cause death or serious injury. The judge found that the company nevertheless established unpreventable employee misconduct through its written 100 percent fall-protection rule, training, daily safety briefing, spot inspections, and discipline and retraining after the incident. The planned work did not require anyone to stand on the parapet, and the supervisor knew the rule but chose a shortcut because the adjustment would take less than a minute. The citation and proposed $3,600 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The serious fall-protection citation was vacated, leaving no penalty.
• Key point: A trained supervisor's brief, knowing shortcut was unpreventable where the employer had a communicated rule, monitoring, and meaningful discipline.

Full text (OSHRC public release)

                                            United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                             1924 Building - Room 2R90, 100 Alabama Street, SW
                                         Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 07-1551
Guamcell Communications,
Respondent.

Appearances:
Isabella M. Del Santo, Esq., Office of the Solicitor, U. S. Department of Labor, San F rancisc o, Ca lifornia
For Com plainant

      Thom as M. T arpley, Esq., The Thomas M cKee T arpley Law Firm, Hagatna, Guam
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                       DECISION AND ORDER

      Guamcell Communications (GC) installs cell phone communication antennas. On June 5,

2007, a GC crew was installing antennas and making adjustments atop the Bank of Guam Building
on the Island of Guam. As Occupational Safety and Health Administration (OSHA) compliance
officer David Hyongsu Moon was driving past the Bank of Guam Building, he observed GC acting
supervisor Sonny Mitchell standing at the edge of the ten-story building without any form of fall
protection. Moon parked his car and conducted an inspection of GC’s worksite atop the building.
As a result of his inspection, the Secretary issued a one-item citation to GC on August 21, 2007.
The citation alleges GC committed a serious violation of § 1926.501(b)(1) for failing to
provide fall protection for employees on a walking/working surface with an unprotected edge 6 feet
or more above a lower level. The Secretary proposed a penalty of $4,000.00. At the hearing, the
Secretary noted that, due to a clerical error, she had neglected to reduce the penalty by 10% based
on GC’s history factor. The Secretary amended the proposed penalty to $3,600.00.
The undersigned held a hearing in this matter on June 26, 2008, in Hagatna, Guam. GC
concedes jurisdiction and coverage. GC also admits § 1926.501(b)(1) applies to the cited condition,
its acting supervisor violated the terms of § 1926.501(b)(1), and its acting supervisor exposed
himself to the risk of death or serious physical injury. GC contends, however it had no knowledge
of its supervisor ’s conduct, and his conduct was not reasonably foreseeable or preventable. It also
asserts the affirmative defense of unpreventable employee misconduct. The parties have filed post-
hearing briefs.
The Secretary established her prima facie case. The undersigned finds GC proved its
employee misconduct defense. Item 1 of the citation is vacated.
Facts
On June 5, 2007, compliance officer Moon was driving on a two-lane road, heading towards
the Bank of Guam Building. The building is ten stories, approximately 100 feet high. Moon
observed someone standing at the immediate edge of the building. Moon stopped his car and, using
his binoculars, observed the man more closely. Moon took several photographs with a digital
camera (Exhs. C-1, C-2, and C-3; Tr. 13-15). Moon observed the man standing on a parapet wall
holding onto what Moon took to be an antenna. Moon could see the man was not wearing personal
fall protection (Tr. 16-17). The man was wearing a blue shirt with “Guamcell” written on its
front (Tr. 17).
Moon drove his car to the Bank of Guam parking lot, got out, and entered the building.
Moon met with the bank’s security officer and its facility manager. Moon then went up to the roof
(Tr. 18). By the time they arrived, no one was on the parapet (Tr. 77).
On the roof, Moon encountered five GC employees, including Sonny Mitchell. Mitchell
admitted he had been on the parapet wall without fall protection. Moon also met with Mark
Manglona, who was the crew supervisor (Tr. 26). GC’s crew was on the roof that day to assemble
a “three-sectored cellular site and to run the transmission lines inside of the parapet wall, to get the
material to the rooftop, meaning the pipes and . . . brackets . . ., and assemble them on the rooftop”
(Tr. 98). The work plan was to assemble the various components on the floor of the roof, and then
erect it while standing on the floor (Tr. 156). The work plan did not require any employees to stand
on the parapet wall (Tr. 131).
The parapet wall was approximately 30 inches wide (Tr. 44). On the inside of the parapet
wall, there is a second lower wall, referred to as a “bench” at the hearing. The bench is 18½ inches

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high. The distance from the top of the bench to the top of the parapet wall is approximately 38
inches (Tr. 136). The total height of the parapet wall measured from the floor of the roof is
approximately 4 feet, 8 inches.
Moon held an opening conference with Manglona. After a discussion on the rooftop, Moon
instructed the GC employees to descend to the ground floor.1 There they met with Greg Gibbons and
Mark Sepeta, two of GC’s managers who Manglona had called when Moon arrived at the scene.
Gibbons and Sepeta agreed to go to Guam’s OSHA office later that afternoon. Gibbons and Sepeta
arrived at the OSHA office with a full-body harness and retractable lanyard. Moon examined the
equipment and held a closing conference with the managers (Tr. 41).
As a result of Moon’s inspection, the Secretary issued the instant citation on August 21,
2007.
The Citation
The Secretary has the burden of proving the violation 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).

1
Moon testified that when he asked M anglona if GC had protective fall equipme nt, Manglona told him it was in his
truck in the parking lot. Mo on stated that it was then that he told M anglona to accompany him down to the parking
lot to loo k at the protective equipment. Once in the parking lot, M oon and M anglona loo ked in the truck and “d idn’t
find it” (Tr. 37). At that point, Moon said, Gibbons and Sepeta approached them and introduced themselves as
managers for GC. According to Moo n, Gibbons expressed surprise the protective fall equipment was not in the truck
and he offered to bring it by Guam’s OSH A office later that day (Tr. 39-40).
Manglona and Mitchell both contradicted Moon’s account. They stated the GC crew had brought three body
harnesses and lanyards to the rooftop of the building. The work plan for the day did not require them to work at the
edge of the building, so they stored the harnesses and lanyards in an equipment room on the roof where they stored
their radio and other equipment (Exh. R-7, photo 6; Tr. 99, 131, 144, 154, 162). Manglona testified Moon instructed
the entire crew to descend from the rooftop in order to further talk about the case, not to look for safety equipment
(Tr. 145). M anglona stated they did not go to his truck, but met with Gibbons and S epeta, “[b]y the time we got out
of the elevator” (Tr. 137).

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Item 1: Alleged Serious 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.

   Prior to the hearing, GC admitted the first three elements of the Secretary’s burden of proof:

Section 1926.501(b)(1) applies to GC’s work activities on the roof of the building; Sonny Mitchell
violated the terms of § 1926.501(b)(1); and his conduct exposed Mitchell to the hazard of falling
approximately 100 feet to the ground below. The Secretary established these elements with
photographic exhibits (Exhs. C-1, C-2, and C-3) and the testimony of Moon (Tr. 43-44), as well as
the testimony of Mitchell himself (Exh. R-6; Tr. 154-156). The only remaining element the
Secretary must establish is knowledge.
Knowledge
At the time of the hearing, Sonny Mitchell was a foreman for GC. GC named him as
foreman in February 2008 (Tr. 152, 167). At the time of the inspection, Mitchell was second in
command of the five-man crew, after Manglona. If Manglona had to leave the site, Mitchell was left
in charge as the acting supervisor (Tr. 167).
The day of the inspection, the crew met on the roof of the building and Manglona held a
tailgate safety meeting. Manglona then left the roof of the building to get water for the crew
(Tr. 132). As he returned several minutes later, Manglona saw Mitchell on the parapet wall from
his truck as he entered the bank building parking lot (Tr. 133, 156). Manglona rushed to the rooftop.
Seconds after he arrived, Moon showed up (Tr. 133).
When Manglona left, Mitchell became the acting supervisor (T. 140). GC’s work plans for
the day in question did not call for any of GC’s crew to stand atop the parapet wall. Manglona had
instructed the crew, “We don’t need to get on the parapet” (Tr. 131). After Manglona left, however,
Mitchell noticed an installed “down tilt” for one of the antennas needed to be adjusted (Tr. 154-155).
Mitchell stated, “After we erected it, I noticed we didn’t do the down tilt. . . . The whole thing is
supposed to be done on the ground. It’s something we missed” (Tr. 168). To adjust the down tilt,

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Mitchell needed to “loosen four screws, pull the antenna down and tighten it back up,” using a speed
ratchet. He estimated he completed this adjustment “under a minute or so” (Tr. 158).
Although Mitchell knew he was supposed to wear protective fall equipment while working
on the parapet wall, he chose not to do so: “I figured it would be a lot quicker just to change it,
instead of getting the belt and putting it on. It would only take me a minute or so” (Tr. 156). The
alternative was to remove the entire mount, adjust the down tilt, then erect it again. Mitchell chose
not to do this because, he said, “It would take too long” (Tr. 156).
Mitchell, as acting supervisor, had actual knowledge of his violative conduct. Under
Commission precedent, Mitchell’s knowledge is imputed to GC. Dover Elevator Co., Inc., 16 BNA
OSHC 1281, 1286 (No. 91-862, 1993) ("[W]here a supervisory employee has actual or constructive
knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary
satisfies [her] burden of proof without having to demonstrate any inadequacy or defect in the
employer's safety program").
GC argues Mitchell’s knowledge cannot be imputed to it, and cites W.G. Yates & Sons v.
OSHRC, 459 F.3d 604, 609, footnote 8 (5th Cir. 2006), which states, “[A] supervisor’s knowledge
of his own rogue conduct cannot be imputed to the employer,” but must be established by the
Secretary by proving either actual knowledge by the employer or constructive knowledge “based on
the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of
the supervisor.”
The Commission has held, “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).
The worksite at issue in this case is located in Guam, which is in the Ninth Circuit. W.G.
Yates & Sons was issued by the Fifth Circuit. It has no precedential value with regard to the instant
case. The Ninth Circuit has not directly addressed the issue of whether a supervisor’s knowledge

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of his or her own violative conduct may be imputed to the employer.2 Therefore, Commission
precedent applies. Mitchell’s knowledge of his own violative conduct is imputed to GC, and the
Secretary has established her prima facie case.
Unpreventable Employee Misconduct
GC argues Mitchell’s behavior was unpreventable employee misconduct. In order to
establish the affirmative defense of unpreventable employee misconduct, an employer is required
to prove (1) that it has established work rules designed to prevent the violation, (2) that it has
adequately communicated these rules to its employees, (3) that it has taken steps to discover
violations, and (4) that it has effectively enforced the rules when violations are discovered. Precast
Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published opinion, 106
F. 3d 401 (6th Cir. 1997).
Established Work Rule
GC has a written fall protection policy. Mitchell signed a copy of the policy the day he was
hired, April 27, 2007 (Exh. R-1). The policy states in pertinent part:
1.2 100% Fall Protection!
All employees shall maintain 100% fall protection at all times as outlined in training.
Failure to do so may result in termination from employment. This will be decided
by the management team.
2 Training
2.1 Importance
Training is of the up most (sic) importance. You will receive training or have
received training in the following areas per OSHA:
2.1.1 Fall Protection Training
OSHA 29 CFR 1910.67, 1926.453 and OSHA 29 CFR 1926.500-503, 29 CFR
1910.66 Appendix C and ANSI Z359.1

2
The Kerns B rothers decision includes the Ninth Circuit among circuits placing the burden of employer knowledge
on the Secretary. Id. at 2071, footnote 15. The case the Co mmission refers to is Brennan v. OSHR C (Alsea Lumber
Co.), 511 F.2d 1139, 11 45 (9 th Cir. 1975), in which the court held employer knowledge to be an element of the
Secretary ‘s prima facie case when she alleged non-serious, as well as serious, violations of the Act. The case does
not ad dress whethe r a supervisor’s know ledge of his or her own violative co nduc t can by imputed to the employer.
A review o f Ninth Circuit cases has no t uncovered any cases add ressing this issue, nor has GC indicated such a case
exists.

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GC has proven it had an established work rule designed to prevent the violation of
§ 1926.501(b)(1). GC implemented a 100 percent fall protection rule, specifically referring to
§ 1926.500-503.
Adequate Communication
GC’s fall protection policy states, “You will receive training or have received training” in
all protection (Exh. R-1). Greg Gibbons is GC’s infrastructure manager and safety officer. It is his
responsibility to “make sure that everyone in the company is adhering to the company policy, and
ensure that people are trained and refreshed in training as needed” (Tr. 84). Gibbons testified
regarding his strong belief in the use of fall protection (Tr. 85): “The equipment today, there’s no
reason anyone should be unhooked, right?” Gibbons stated he received training (Tr. 85-86):
in the use of full-body harnesses, is the standard today. You’ve got to have
deceleration devices or shock-absorbing lanyards. There are stops. There’s
positioning devices. There’s rope grabs are static ropes that help arrest your fall.
There’s SRL, self-retracting lanyards. There’s all kinds of equipment available
today.

   Gibbons met Mark Manglona while working for another company in 2000. Gibbons trained

Manglona in fall protection safety (Tr. 87-88). Sonny Mitchell had worked for Manglona for
approximately four years when Gibbons hired Mitchell for GC, based on Gibbons’s understanding
that Manglona had instructed him in safety training. Manglona told Gibbons, “I taught him the same
way you taught me” (Tr. 90). Gibbons reviewed Mitchell’s safety training certificate (Exh. R-2) and
verified for himself that Mitchell was familiar with fall protection equipment (Tr. 105):
As far as showing him how to put the belt on and equipment on, I mean, I watched
him inspect it. I watched. I said, “Show me how you inspect this.” I watched him
put it on. I knew that he had been with Mark Manglona for four years, so I know he’s
trained because I trained Mark and Mark told me that, these guys, he trained them to
the way that I trained him.
So, he came to me with training. But, I did, yes. I did, when they first came,
I watched them climb and, you know, put their belts on, inspect their gear, just as a
precaution for myself. I wanted to see.

   Manglona also testified GC had a 100% fall protection rule that was communicated to all

employees (Tr. 128). Manglona holds tailgate safety meetings every day before work begins. The
day of OSHA inspection, he had told the GC crew there was no reason to get on the parapet wall.

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Mitchell corroborated Manglona’s statement, and admitted he knew he was violating GC’s safety
policy when he got on the parapet wall without fall protection (Tr. 157, 160). Mitchell’s explanation
for his knowing violation of a safety rule is the familiar one of convenience (Tr. 156): “I figured it
would be a lot quicker just to change it [the down tilt], instead of getting the safety belt and putting
it on. It would only take me under a minute or so.”
GC has established it effectively communicated its safety rule, and that Mitchell was aware
of the rule even as he was violating it.
Discovery of Violations
Gibbons testified he made “spot inspections” of GC’s worksites, both to monitor the progress
of the work and to see that all safety rules were being followed (Tr. 111).
Discipline
GC claims that, despite Gibbons’s spot inspections, it had never previously discovered an
employee violating a safety rule. Mitchell was the first employee found (with the help of OSHA)
committing a safety infraction (Tr. 100). The day after the inspection, Gibbons filed an “Incident
Report” with GC, documenting Mitchell’s violation of company safety policy. Mitchell wrote a
statement in the “Employee Response” section of the report: “I Sonny Mitchell apologize for my
actions on the day of 6.5.07. My irresponsibilities on the job site was juvenile and without thought”
(Exh. R-6; Tr. 92). Gibbons grounded Mitchell for six months, during which time he was on
probation. Gibbons instructed Mitchell to undergo retraining. After completing an Omega Safety
training course, Gibbons allowed Mitchell to work above ground level again for GC (Tr. 94-95).
Analysis
GC makes a strong case in its employee misconduct defense with regard to the elements of
having an established work rule and effectively communicating it. Its record on discipline is thin,
but OSHA had never previously cited GC for a violation, so it is possible its employees were
exemplary and, until Mitchell’s carelessness on June 5, 2007, had not needed to be disciplined. The
weakest part of GC’s defense is establishing it took steps to discover violations. Gibbons stated he
made spot inspections, but he did not document these inspections and his description of them was
perfunctory. It does not appear he makes a special effort to discover violations, but generally checks
out the worksite when he shows up to monitor the job’s progress.

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Despite the lack of overwhelming evidence that GC took steps to discover violations and then
enforce discipline, the undersigned finds GC barely met its burden of proof on its affirmative
defense. Weighing heavily in this conclusion is Mitchell’s unequivocal testimony that the work was
planned to be completed on the roof floor, he had been trained in using protective fall equipment,
he knew he was supposed to wear protective fall equipment if he stood on the parapet wall, and he
chose to not wear the equipment despite his training and knowledge. It is possible Mitchell flouted
the fall protection rule because he had learned in his few weeks on the job that GC winked at safety
infractions or tolerated momentary exposures to fall hazards. Other than Mitchell’s misconduct,
however, the record does not corroborate such a conclusion or that GC failed to take fall protection
seriously.
GC has established its affirmative defense of employee misconduct. Item 1 of 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 Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
Item 1 of the citation, alleging a violation of § 1926.501(b)(1) is vacated, and no penalty is
assessed.

                                                  /s/
                                                  NANCY J. SPIES
                                                  Judge

Date: November 17, 2008
Atlanta, Georgia

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