CME Corporation

Plain-English summary

A CME Corporation employee fell more than 10 feet through an unguarded opening into a construction pit and required multiple surgeries. CME argued that the opening was an access point that did not require a guardrail, but the judge found it was not being used for access when the employee worked beside it. The company also failed to show that guardrails, safety nets, and personal fall arrest systems were all infeasible. The judge affirmed the serious fall-protection item and also affirmed an other-than-serious reporting item because CME did not notify OSHA within 24 hours of the hospitalization. CME’s belief that its temporary staffing provider would report the incident supported a lower penalty but did not excuse the violation. The judge assessed $6,500 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1904.39(a)(2)
• Outcome: Serious fall-protection item and other-than-serious reporting item affirmed; $6,500 total penalty assessed.
• Key point: An opening is not exempt from edge protection merely because it can serve as access, and the controlling employer remains responsible for reporting a hospitalization.

Full text (OSHRC public release)

Diggs, Arvetta D.
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2018-01-05T15:47:00Z
2018-01-05T15:47:00Z
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Hewlett-Packard Company
279
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39413
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2017-11-03
2017-11-03

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5.5 pt
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EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W. Atlanta, Georgia 30303-3104

Secretary
of Labor,

Complainant

v.

OSHRC Docket No.: 16-1851

CME
Corporation,

Respondent.

Appearances:

Lisa A. Cottle,
Esq., U.S. Department of Labor, Office of
the Solicitor, Cleveland, Ohio For the
Secretary

Theodore T. Storer, Esq., Rothberg, Logan
& Warsco, LLP For the Respondent

BEFORE: �������� Administrative Law Judge
Heather A. Joys

DECISION AND ORDER

On September
15, 2016, an employee
of CME fell more than 10 feet into a pit while working on a construction project at a turkey
processing plant
in Saint Henry, Ohio. �
He survived. � His
injuries required multiple surgeries and
he remains unable to work. There is no dispute the employee fell through an unguarded
opening along the edge of the
level just above the pit. � CME
contends the opening was a point
of access to the upper level from the pit which did
not need to be guarded
under the applicable regulations. The Secretary contends the unguarded
opening was not being used as
a point of access at the
time and, therefore,
required some form of fall protection. � Resolving this mixed
issue of law and fact is what
is before me in this case.

Following the accident in September 2016, Compliance Safety and
Health Officer (CSHO) Dan Steffen of the Occupational Safety and Health
Administration�s Toledo Area Office conducted an
inspection of the facility at
which CME was performing construction work. Based upon his findings, the Secretary issued CME a
serious citation alleging
a violation of 29

C.F.R. � 1926.501(b)(1) for
failure to provide fall protection to the injured employee as he

worked along the edge of
the pit. The Secretary proposed a penalty of $6,236.00 for this � citation. � The Secretary also issued
an other
than serious citation alleging a violation of 29 C.F.R.

� 1904.39(a)(2) for failure to report the accident, for
which he proposed a penalty
of $3,500.00. CME timely
contested the citations, bringing this matter
before the Occupational Safety
and Health Review Commission pursuant to � 10(c) of the
Occupational Safety and Health
Act of 1970, 29 U.S.C. � 651-678
(the Act). CME contests both the citation and the associated
penalty of the alleged serious violation of � 1926.501(b)(1). � It contests only the penalty assessed
for the other than serious violation of � 1904.39(a)(2).

I held a
hearing in this matter on August 16, 2017, in Detroit, Michigan.
The parties filed post-hearing briefs on October 10, 2017. 1

For
the reasons discussed
below, Item 1, Citation 1, is affirmed and a penalty of

$6,000.00 is assessed. �
� Item
1, Citation 2, is affirmed and
a penalty of $500.00 is assessed.

JURISDICTION

The parties stipulated jurisdiction of this
action is conferred upon the Commission pursuant to � 10(c) of the Act (Tr.
8). � The parties also stipulated at the hearing that
at all
times relevant to this action, CME was an employer engaged in a business affecting interstate commerce within
the meaning of � 3(5) of
the Act (Tr.
8-9). � Based on the parties�s stipulations and the
facts presented, I find
CME is an employer covered
under the Act and the Commission has jurisdiction over this proceeding.

BACKGROUND

The Project

CME is a
commercial construction
company headquartered in Fort
Wayne, Indiana. � It is a family-owned business with approximately 30 employees
(Exhs. R-5; R-6; R-7). � For
certain jobs, CME uses temporary workers
supplied by United Labor
Group (ULG). � The majority of its workforce
is full-time CME employees (Tr. 243).

In 2016, CME had a contract to build an offal processing building for a turkey
producer in Saint Henry, Ohio. Paul
Martin was CME�s site superintendent for that job (Tr. 161). Martin

� SHAPE � * MERGEFORMAT

1 To
the extent either party failed to raise an argument in its post-hearing brief, such argument
is deemed abandoned. See S & S Diving , 8 BNA OSHC 2041, 2042 (No. 77-4243, 1980).
Although CME raised
the
affirmative defense of unpreventable employee
misconduct in its Answer,
CME�s brief does not address it. That affirmative defense is deemed
abandoned.

described the building and the work CME
was performing. The building consisted of three areas. �
The top area was
a cooler. � That level
was elevated 4 feet above ground level to allow loading and
unloading tractor trailers (Tr.
164). � It was
separated from the other areas of the building and
the outside by insulated cooler panels. 2 �
� The building had an area
at ground level which
was referred to as the
mezzanine (Tr. 164). � That
level was accessible by a ground-level entrance
with an overhead door. Below the
mezzanine was the pit. The distance from the edge of the mezzanine to the pit below was 11 feet, 2 inches (Tr. 163). �� CME had
installed a standard guardrail along the length of the
edge of the mezzanine,
leaving two unguarded openings in which it placed ladders
to
the pit (Tr. 172; Exh. C-3). Where the
mezzanine and the cooler
abutted was a 4-foot
wall referred to as
the knee wall. 3 � � During the relevant time period, CME was in the process of installing the cooler
panels that separated the cooler from the other areas.

The cooler panels fit together in tongue and groove fashion (Tr. 167). �
The CME crew installed
the panels in a channel that
ran the length of the wall between
the cooler
area and the pit and
the knee wall. 4 � � The joints between
the panels and the channel were caulked to ensure an airtight seal. � Two
men worked on both sides
of the panels screwing them in
on the top and bottom (Tr. 165). � To
reach the panels from the pit area,
the two men working on the pit side
of the wall used a scissor lift.

The Accident

The injured employee was an experienced iron worker. �
He had been in the industry
for 16 years (Tr. 96). He came to
work for CME through ULG and was assigned
to begin work on September 12, 2016, on the Saint Henry job. The week prior,
CME had sent the injured
employee to its headquarters in Fort Wayne, Indiana,
for an 8-hour training session, including
fall protection training (Tr.
100).

On Monday,
September 12, 2016, the injured
employee arrived at the
worksite at 7:00 am (Tr. 103). � On
site were Martin and four
other CME employees (Tr. 104). � Martin
was the only member
of CME management onsite (Tr.
104). � Using the scissor lift to access the area, the injured employee and his co-worker installed
the panels along the
wall of the upper level

2 The fully installed cooler
panels are depicted in Exhs. C-2 and C-3 .

3 This area is depicted in the photograph at Exh. C-2, which was taken by CSHO Steffen
after the accident
(Tr. 33- 34).

4 The channel is depicted
in Exh. C-4 ( see also Tr. 44).

adjacent to the pit. They installed panels up to the edge of the pit
during the first day (Tr.
105). The following two days,
the crew installed panels on the
exterior walls (Tr. 106).

On Thursday,
September 15, 2016, the injured
employee arrived on site at 7:10
am and was
told they would be installing the
remainder of the
panels along the knee
wall from the mezzanine (Tr. 106-07). He and
his co-worker went to the mezzanine level to begin to
prepare the channel in which the panels
were to sit, as instructed by Martin (Tr. 107-09, 177). According to Martin,
he saw the injured employee cleaning the
channel using his glove
and asked what
he was
doing (Tr. 187, 200-01). � Martin
then left the area to prepare the panels.

Prior to beginning work with
the panels, Martin had the ladder leading from the
mezzanine to the pit removed
from the opening. � He
then had another
employee move a scissor
lift into the area (Tr. 182). � The lift
was flush with the edge of the mezzanine and parallel
to the wall of the cooler
(Tr. 111). There was
a distance of approximately 2 feet
between the wall and the lift (Tr.
112). 5

The injured employee first cleaned dust and
debris from the channel and
dumped the material over the edge of the
mezzanine. He then began to caulk
the channel. As
he did so, he stood between the lift and the knee wall. At one point,
he ran out of caulk and turned to reach for more from the floor of the
lift behind him (Tr. 114). He turned back to continue caulking, took a
step, and fell off
the edge of the mezzanine to the
pit, 11 feet below (Tr. 114). His
co- worker called out to him, alerting Martin (Tr. 189). Martin went down
the ladder on the opposite end
of the mezzanine to assist the injured employee (Tr.
189). � The
injured employee was placed on a
lift in the pit and elevated
to the mezzanine. � At
that point, the lift on the
mezzanine level had
been moved out of the way (Tr.
191). Once at the mezzanine level, Martin
and another

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5 On this issue,
I credit the testimony of the injured employee. He testified
he did not do anything �out of the ordinary�
to fit in the space between
the lift and the
wall and had enough room to turn his body around to reach the lift (Tr. 116-17). The injured
employee described
himself as �a pretty
big guy.� (Tr. 137). To my observation, he is an average size adult man. Two feet is a reasonable estimate
of the space needed to perform
this task. The only evidence
that contradicts the injured
employee�s testimony on this issue is Martin�s
testimony that the photographs �� at Exhs. C-4 and C-7, which show a 10-inch gap between
the lift and the knee wall, accurately depict the position of the lift at the time of the accident.
Martin conceded the photographs were taken by CME after the lift had been moved out of its original position
and repositioned (Tr. 191, 197). Martin had not moved the lift into place either time, but had the employee
who originally positioned the lift restage
the scene after the accident prior
to taking the photographs (Tr. 197-98). The employee
who moved the lift did not testify. The injured
employee testified the photographs are not accurate
depictions of where the lift was
when
he was working in the area (Tr. 111-12).
On this issue, the injured employee was the most
competent and credible
witness. He was in the best position to estimate �� the distance
between the lift and the knee wall
before the accident.
He testified in a calm,
forthright manner
and appeared
to harbor no animosity
toward CME or ULG.

employee helped the injured employee to Martin�s
truck and transported him
to the hospital (Tr. 192).

While the
injured employee was
being assisted, a CME
employee called the company�s Corporate Safety Director, Tom Smith (Tr. 193, 227). Smith drove
immediately to the worksite
from his office in
Fort Wayne (Tr. 228). While driving, he notified ULG of the accident (Tr.

228).
Neither Smith, nor any one from CME
notified OSHA of the accident.

As a
result of the fall,
the injured
employee fractured his pelvis in four places, fractured his right
elbow and left wrist,
suffered injury to his back,
and ruptured his bladder (Tr.
124). He has undergone
three surgeries to address his injuries and has been unable
to return to work due to his
injuries as of the date of the
hearing (Tr. 125).

The OSHA Inspection

The OSHA Toledo Area Office received a complaint regarding the
accident (Tr. 19). CSHO
Steffen was assigned to conduct the inspection and visited the Saint Henry worksite
on October 3, 2016. � The project was
not complete when CSHO Steffen arrived onsite, but no employees of CME
were working (Tr. 20, 26). �
CSHO Steffen initially met with
Martin. Martin accompanied
him on his walk around the facility (Tr. 26). CSHO
Steffen�s inspection consisted
of taking photographs
and measurements. He also
spoke with Martin. As a
follow up to the onsite inspection, CSHO Steffen requested
documentation from CME
and contacted employees
off site (Tr. 26).

As a
result of his inspection, CSHO Steffen recommended CME be issued a
citation alleging
a serious violation of � 1926.501(b)(1) for failure to provide fall protection
at the location where the
injured employee fell. CSHO Steffen
recommended CME be issued an
other than serious citation
alleging a violation of � 1904.39(a)(2) for failure to report the in-patient hospitalization
of the injured employee. � The Secretary proposed a penalty of $6,236.00
for the serious violation of � 1926.501(b)(1) and
a penalty of $3,500.00 for the
other than serious
violation of � 1904.39(a)(2).

DISCUSSION

The Secretary has the burden of establishing the employer violated the cited standard. To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence
that (1) the cited standard
applies; (2) the employer failed
to comply with the terms of the
cited standard; (3) employees had access to the violative
condition; and (4) the
cited

employer either knew or could have
known with the exercise of reasonable diligence
of the violative condition. � JPC Group,
Inc. , 22 BNA OSHC 1859, 1861 (No. 05-1907,
2009).

Item 1, Citation
1: The Alleged Violation of 29 C.F.R. � 1926.501(b)(1)

Item 1, Citation
1 alleges a violation of � 1926.501(b)(1). Section 1926.501(b)(1)
is part of Subpart M - Fall Protection. � It reads:

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 Secretary alleges
CME violated the standard
when, on September 15, 2016, at the Saint
Henry worksite, it �failed
to ensure employee(s) installing insulated cooler panels
in the Offal Building
were adequately protected
from falls.� The
citation specifically references the injured employee�s exposure to an 11-foot,
2-inch fall from the mezzanine to the �concrete floor below.�

Applicability of the Cited Standard

There is no dispute CME was engaged in construction work and the
mezzanine was a walk/working surface
more than 6 feet above a lower level.
The issue for resolution is whether the open edge
of the mezzanine through which
the injured
employee fell was an �unprotected side or edge� as that term is defined
in the standard. Section
1926.500(b) defines an unprotected side or edge as �any
side or edge (except at entrances to points of access) of a
walking/working surface�� CME contends the cited area was not an �unprotected side or edge,� but rather the ladder access area of the mezzanine.

It is well settled
the party seeking
the benefit of an exception to a legal requirement has the burden of proof to show that it qualifies
for that exception. C.J. Hughes Construction, Inc., 17 BNA
OSHC 1753, 1756 (No. 93-3177, 1996); Dover Elevator
Co ., 15 BNA OSHC 1378,

1381 (No. 88-2642,
1991). CME has the burden to establish
the area at issue falls within
the exception to the definition
of an unprotected side or edge.

There is little dispute the unguarded area was intended to be used
as
a point of access at some
time. The record contains little
evidence of when or
how the ladder
was used. Given the
care CME used in erecting the guardrails,
a reasonable inference can be
drawn that the area was intentionally left open
for the purpose of allowing ladder
access to the mezzanine from the
pit (or vice
versa) when such access was necessary. �
For much of the project, and more specifically the

days prior to the accident, there was
a ladder in the
opening. That had
been removed at the direction of Martin prior to beginning the panel
installation on September 15, 2016, to accommodate
the lift (Tr. 212). �
There was a second opening with a ladder
from which the pit could be
accessed available on that day (Tr.
182, 190). 6

The question to be answered in this matter is
whether the cited opening was an
entrance to a point of access or an unprotected edge on September 15,
2016, the day of the accident. 7 � � The Secretary contends
the opening did not fall under the
exception to the definition because it was not being used to access the pit on the day of the
accident and removal of the ladder and placement
of the lift prevented the opening from being used as
access to the pit. � CME argues the opening was an entrance to a point
of access if it is used for that purpose �at some
point.� 8 � � The Secretary has
promulgated no guidance on the standard�s exception
or what constitutes �entrances to points of access.� 9 � � The Commission has not issued
any
decision clarifying the exception. �
�[I]t is well settled that
the test for the applicability of any statutory or regulatory provision looks first to the
text and structure of the statute or regulations whose
application is questioned.� Unarco Commercial
Products , 16 BNA OSHC 1499, 1502 (No. 89-1555,
1993) .

The standard's
wording must be interpreted in a reasonable
manner consistent with a common

� SHAPE � * MERGEFORMAT

6 In its brief, CME asserts the cited opening was the only access to the pit. This is contrary to the record.
In making this assertion, CME misstates the record by taking
the testimony at transcript page 176 out of context. The testimony, in context, was as follows:

Q:
Okay. Were you aware�other than the two ladder
access points that you just mentioned, one which is reflected
in C-3 and
C-4
�

A: Yes, sir.

Q: And this other one that I think you said was at the other end of the room. A: Uh-huh.

Q: In your understanding, Mr. Martin, were there any other ways to access the pit? A: No.

(Tr. 175-76).
Martin was not confirming a single access point, as CME contends,
but the two access points to the pit. CME suggests
the second ladder
access point about which Martin
testified was a ladder inside the pit providing access
from one level of the pit to another
and cites to Martin�s testimony at transcript page 172. At transcript page 172 Martin testified
�We
had two access
points. This ladder access point and another ladder
that went into the deeper pit. Them was our two access points because
we figured we needed
two because we have different levels of pit.� He goes on to confirm CME installed
railing around the entire pit, except for the two
ladder access points.

Nowhere in this testimony does Martin
state the second ladder
access point was within the pit. CME�s assertion is easily disproved by Martin�s testimony that he used this other ladder
access to get into the pit to assist the injured employee after the
fall which he described as an opening in the railing �just like� the cited opening (Tr. 189-90). CME�s misrepresentation of the factual record
does little to bolster
its argument.

7 September 15, 2016, is the only day on which the citation alleges CME
was in violation
of � 1926.501(b)(1).

8 CME did not argue the terms of the standard are ambiguous. Nor did it raise the affirmative defense of lack of fair notice of the standard�s requirements. Such defense would
be inconsistent with its contention a reading
of the plain language
of the standard supports its position.

9 The preamble to the standard provides
no elucidation. See 59
FR 40672-01 (August
9, 1994).

sense understanding. Globe Industries, Inc. , 10 BNA
OSHC 1596 (No. 77-4313, 1982). The words are to be
viewed in context, not in isolation,
and judged in light of its application
to the facts of the case . Ormet Corp. , 14 BNA OSHC 2134, 2135 (No. 85-531,
1991) . A safety standard such as
� 1926.501(b)(1), and
the definition at � 1926.500(b) , are generally construed liberally to allow
broad coverage in carrying out the
congressional intent to provide safe and healthful
working conditions. � 29 U.S.C.
� 651(b).

The Miriam Webster dictionary defines an �entrance� as �the means or place of entry.�
It defines a �point� as a �narrowly localized place� and �access� as �a way or
means of entering or
approaching.� An �entrance to a point of access� is a narrowly localized way or means of entry. � For
the area at issue to meet
that definition, it must
be a means of entry to the
pit from the

mezzanine or
vice versa. � For
an opening to be a means of
entry it must be capable
of functioning for that purpose.
� In other words,
entry must be possible. Absent the ladder, no entry to or from the pit
was possible � it was not a �way or means of entering� the pit. Once CME
removed the ladder, the opening became an unguarded
edge through which an employee could fall. � The exception to the requirement that employees be protected from falls
from unprotected edges does not
apply to the cited conditions. 10

CME�s contention
the opening remained an
entrance to a point of access as long as it was used
for that purpose �at some point�
is not consistent with the
language of the standard and would lead
to needless exposure to fall hazards. Accepting CME�s
argument an employer could designate
an area as a point of
access, use it as such once,
and leave it open in perpetuity, regardless
of whether it was ever
again capable of functioning as a means of
entering the level below. �
This would permit employers
to expose employees to the fall
hazard addressed in the standard. � Applying the standard in this way is inconsistent with a common sense understanding of the standard�s terms and the purposes
of the regulation and the
Act. 11

� SHAPE � * MERGEFORMAT

10 � The
term �point of access� is defined in Subpart X � Stairways and Ladders.
Section 1926.1050(b) defines �point of access� as �all areas used by employees for work related passage
from one area or level to another.
Such open areas include doorways, passageways, stairway openings, studded walls, and various other permanent or temporary openings used for such travel.� It is not clear the Secretary intended the definition in Subpart
X to apply to Subpart

M. Even if the definition in Subpart
X were to apply,
my analysis and conclusion regarding the applicability of the exception
to the unique facts of this case
would be the same.

11 The purpose of
Subpart M is to prevent falls
on construction worksites.
� The purpose of the Act is to �prevent the first accident.� See Brock v. L.E. Myers Co .,
818 F.2d 1270, 1275 (6 th Cir. 1987).

Because the opening through which
the employee fell was an
unguarded edge as
that term is defined in the � 1926.500(b), CME was
required to provide employees with protection from
falls from it on September 15,
2016, under � 1926.501(b)(1).

Failure to Comply
and Employee Exposure to
the Hazard

Section 1926.501(b)(1) allows employers
to choose between three methods of compliance. An employer
may protect employees from falls from unprotected
edges by a guardrail
system, safety net
system, or personal fall arrest
system. CME did not use any of
these methods to protect employees in the cited area of the mezzanine from falls to the pit below
on September 15, 2016. CME does not dispute it provided no form of
fall protection. The
standard was violated.

Nor is there
any dispute employees were exposed to a fall hazard.
The injured employee
and his co-worker were working on the
mezzanine level preparing the channel
for panel installation. � Both
were working in the
area near the
opening. The injured
employee was working
close enough to have
fallen off the edge.
� The Secretary has established
employee exposure to the cited fall hazard.

Employer Knowledge

To establish
employer knowledge of a violation
the Secretary must show the employer
knew, or with the
exercise of reasonable diligence could
have known of a hazardous condition. Dun Par Engineered Form Co ., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). 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
a supervisory employee
knew of or
was responsible for the violation. � Todd Shipyards Corp ., 11 BNA
OSHC 2177, 2179 (No. 77-1598, 1984);
see also Dun Par Engineered
Form Co ., 12 BNA
OSHC 1962 (No. 82-928,
1986) (the actual or constructive knowledge of an employer�s
foreman can be imputed to the employer).

Actual knowledge refers to an
awareness of the existence of the conditions allegedly in noncompliance. � Omaha Paper Stock
Co. , 19 OSHC 2039 (No. 01-3968,
2002). � An
employer is chargeable with knowledge of conditions which are
plainly visible to its supervisory personnel.

A.L. Baumgartner
Construction Inc ., 16 BNA OSHC 1995, 1998 (No
92-1022, 1994).

Martin was
CME�s supervisor on site
(Tr. 104). He was
aware of the existence of the unguarded edge, that the ladder had been removed, and that
the injured employee was working from the
mezzanine cleaning out the
channel. He had instructed
the injured employee and his co-worker to prepare the channel (Tr. 177). � He saw the injured employee
before he fell and asked
what he was doing (Tr. 186). When the
injured employee told him he was
cleaning the

channel, Martin admitted he said, �okay, go ahead.�
(Tr. 187). � He gave no instruction
on how to continue the task (Tr.
200-01). � Martin was aware the
injured employee was working
near an unprotected edge without fall protection. � Martin�s knowledge
is imputed to CME.

Martin�s testimony suggests he could
not have anticipated the injured
employee would continue
his task on the mezzanine in the area between
the lift and the knee wall because
that space was too small. Martin
testified he believed the lift was �plugging the hole.�
(Tr. 201). � I found
this testimony unconvincing. 12 � � There was sufficient
space between the knee wall and the lift to allow
the injured employee to turn his upper body. Martin�s
contention he assumed the injured
employee would continue
his cleaning task from
the lift strains credibility. � To
complete the task as suggested would have required the injured
employee to stop his work, climb
into the lift, kneel down, and
reach through the rails
of the lift to reach the
channel below (Tr. 153). � The injured
employee testified doing so would
have been counter to instructions
he had received to never �work below the basket.� (Tr. 153). Martin testified
he would have stood in the lift
and
cleaned the channel with
a �house broom.� (Tr.
203). There is no evidence any type of broom
was available (Tr. 144, 203). Under the circumstances,
the reasonable assumption was that the injured
employee would continue
on the easier path of working
from the mezzanine, placing himself precariously close
to the unprotected edge. A reasonably diligent
employer would have been aware
of the hazard posed.

The
Secretary has established CME had knowledge of the violative
condition.

Characterization

The Secretary alleges
the violation
was serious. � A violation
is serious when �there is a substantial
probability that death or serious physical
harm could result� from
the hazardous condition at issue . 29 U.S.C. � 666(k). The Secretary need not show that there was a substantial probability that an accident would
occur; only that if an accident did occur, death or
serious physical harm would result. � There can be little dispute the likely
result of a fall of
11 feet is death
or serious injury. � As
demonstrated by the accident in this case, such a fall
can
result in debilitating physical
harm. � The
violation is serious.

The Secretary has established
a prima facie case of a serious violation
of � 1926.501(b)(1).

� SHAPE � * MERGEFORMAT

12 Martin�s demeanor suggested defensiveness. Nor has Martin�s
account of events been entirely
consistent (Tr. 201, 250).

Affirmative
Defense of Infeasibility

CME has raised the affirmative defense of
infeasibility. To establish this defense, an employer
must show (1) literal
compliance with the terms of
the standard is infeasible
under the existing circumstances and (2)
alternative protective measures were
used or no feasible alternative
measures are available. �
Otis Elevator Co .,
24 BNA OSHC 1081, 1087 (No. 09-1278, 2013),
citing, Westvaco Corp .,
16 BNA OSHC 1374, 1380 (No. 90-1341, 1993). CME
argues compliance is infeasible because �the nature of the work precluded
CME from complying with the standard�s requirements for fall protection.�
� ( Respondent, CME Corporation�s Post-Hearing Brief, at p. 9).

There is no dispute the lift was
necessary to complete the cooler panel installation along
the mezzanine. Martin testified
the ladder was removed from
the unprotected edge prior to positioning the lift because
the ladder would
have been in the way of the lift. 13 � � CME reasons
that if the
ladder would have been in the way, a standard
guardrail would have also been in the way. � It goes
on

[b]ecause the ladder access
was the only point of access
between the mezzanine and pit levels,
and the ladder had to be removed
in order to position
the lift to complete
the panel installation, CME could not both comply with the cited standard, 29 C.F.R. 1926.501(b)(1) and perform
the work.

(Respondent�s brief, at
p. 11, emphasis in the original).

CME�s argument fails on
multiple fronts. CME�s
contention the opening
in the railing adjacent
to the mezzanine was the
only point of access to
the pit is demonstrably false, as previously discussed ( See footnote 6, infra ).
Even accepting CME�s
position a guardrail would have prevented use of the lift, it did not establish the lift needed to be in that position while the injured
employee was cleaning the channel
or the point at which he
was exposed. � More importantly, in arguing compliance was infeasible because
a guardrail would have been
in the way of the lift, CME ignores the language of the
standard. � The cited standard
provides three alternative
methods of compliance. � CME makes
no mention
of why it could not have provided

� SHAPE � * MERGEFORMAT

13 Martin testified that ladder had to extend 3 feet above
the concrete, presumably referencing the requirement of 29

C.F.R. �
1926.1053(b)(1) which states:
�When portable ladders
are used for access
to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above
the upper landing surface to
which the ladder
is used to gain access��

12

one of the
other two alternatives. 14 � � To establish literal compliance is
impossible where a standard allows
more than one method by which
to do so, the employer must establish
all
methods are infeasible. � CME�s failure to even mention why it could not have used a
safety net system
or personal fall arrest system
is fatal to its defense.

Item 1, Citation 1, alleging a serious violation
of � 1926.501(b)(1) is affirmed.

Item 1, Citation 2: The Alleged Violation of 29 C.F.R. � 1904.39(a)(2)

The standard at � 1904.39(a)(2) requires an employer to notify
OSHA of an
in-patient hospitalization �[w] ithin twenty-four (24)
hours after the in-patient
hospitalization �, as a result
of a work-related incident��

CME conceded in both its responses to the Secretary�s Requests
for Admission (Exh. C-

1) and at the
hearing it was in violation of � 1904.39(a)(2) (Tr.
6). There
is no factual dispute regarding
the applicability of the
standard. � The injured employee
was a temporary employee working under
the exclusive control of CME who suffered
a work-related injury requiring hospitalization. � CME was
aware of the injury and failed
to report it. Safety Director Smith testified he did not report the injury to OSHA
because he had immediately notified ULG of the accident (Tr.
228). � He assumed
because the injured employee was covered for
workers compensation purposes by ULG,
that ULG would make the
notification to OSHA. Smith
did not confirm this assumption
with ULG (Tr. 228-29). � The evidence establishes CME was in violation of �
1904.39(a)(2).

The Secretary proposed
Item 1, Citation 2, be characterized as an
other than serious violation.
The Commission has defined a
non-serious violation as �one
in which there is a direct and immediate
relationship between the violative condition and occupational
safety and health but not of such relationship
that a resultant injury or illness is death or serious physical harm.� Crescent Warf & Warehouse Co. ,
1 BNA OSHC 1219 (No. 1, 1973). � Failure
to notify OSHA of
injuries prevents the agency from timely responding to accidents and addressing possible hazardous conditions. � The violation has a direct impact on safety and health and is properly characterized as an other than
serious violation.

Item
1, Citation 2, alleging
an other than serious violation of � 1904.39(a)(2) is affirmed.

� SHAPE � * MERGEFORMAT

14 Martin testified there were harnesses available
for use by employees
and that the lift had anchor points from which to tie off (Tr. 217).

13

PENALTY

The Commission, in assessing
an appropriate penalty, must give
due consideration to the gravity of the
violation and to the size,
history and good faith of the employer. See 29 U.S.C.
� 666(j). � The Commission
is the final arbiter of penalties. Hern
Iron Works, Inc. , 16 BNA
OSHC 1619, 1622, (No. 88-1962, 1994), aff�d , 937 F.2d 612 (9th
Cir. 1991) (table); see Valdak
Corp. ,

17 BNA OSHC 1135, 1138 (No. 93-0239,
1995) (�The [OSH] Act
places limits for penalty amounts but places no restrictions on the
Commission�s authority to
raise or lower penalties within
those limits.�), aff�d ,
73 F.3d 1466 (8th Cir. 1996). � In assessing a penalty, the Commission gives due consideration
to all of the statutory factors
with the gravity of the violation being the most significant. � Capform Inc. , 19 BNA
OSHC 1374, 1378 (No. 99-0322, 2001),
aff�d ,
34 F. App�x 152 (5th Cir.
2002) (unpublished). �Gravity
is a principal factor in a penalty
determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions
taken against injury.� Siemens
Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052,
2005).

In proposing penalties for both citations,
the Secretary reduced the statutory maximum penalties by taking only CME�s
size into consideration. CME contends
it is entitled to a greater penalty
reduction than the
Secretary assessed. � I agree.

The maximum penalty for Citation 1 is $12,471.00. 29 U.S.C. � 666(b). 15 � � A high gravity-based
penalty is warranted. � Although only a few employees were exposed for a
short period of time, lighting was
poor, increasing the likelihood of an accident (Tr. 119-20). The severity of the resulting injury is
unquestionably high (Tr.
124). � CME is a small employer and, accordingly,
entitled to a corresponding adjustment to the gravity-based penalty. There is
no evidence
in the record CME has received citations from OSHA in the past. � CME
presented evidence it has a lower than average injury rate for its
industry; it has a comprehensive safety and
health program; and makes
efforts to train all its employees
on its safety and health rules,
including temporary employees. � CME
cooperated with the
inspection. � For these reasons, CME is entitled to reductions in the gravity-based penalty for history and good
faith. � Nacirema

� SHAPE � * MERGEFORMAT

15 � In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment And Improvements Act (the Inflation Adjustment Act), which directs
agencies to adjust
their penalties for inflation each year and requires agencies to publish
�catch up� rules to
make up for lost time since the last adjustments. Pursuant to the Inflation
Adjustment Act, the Secretary adjusted the
maximum penalty for both serious
and other than serious
violations to $12,471.00. The adjusted
civil penalty amounts are applicable to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015.

Operating Co., Inc., 1 BNA OSHC
1001, 1002 (No. 4, 1972) (�Good faith should be determined by a review
of the employer�s own occupational
safety and health program,
its commitment to the
objective of assuring safe and healthful
working conditions and its cooperation with other persons
and organizations� like
OSHA.) The maximum penalty is reduced accordingly.
A penalty of $6,000.00 is assessed for Item
1, Citation 1.

Citation 2 also carries a maximum penalty of $12,471.00. 29 U.S.C.
� 666(c). The gravity of the
violation is low. � Although
the OSHA inspection was
delayed by CME�s failure to report the injury, CME had corrected the hazardous condition that resulted in the injury immediately. � CME�s
failure to report was not a
deliberate attempt to conceal the
accident, but the result of a good faith belief the reporting requirement would be fulfilled by ULG. Hecfer Construction
Corp. , 2 BNA OSHC 1217 (No. 3097, 1974) (Belief one is in compliance
is a factor to consider under the �umbrella� of good faith). CME is
entitled to a significant reduction
in the gravity-based penalty. �
A penalty of $500.00
is assessed for Item 1, Citation
2.

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:

1. Item � 1 � of � Citation � No.
   � 1,
   � alleging � a � serious
   � violation � of � � � 1926.501(b)(1) ,
   � is

AFFIRMED and a penalty
of $6,000.00 is assessed.

2. Item 1 of
   Citation No. 2, alleging
   an other than serious
   violation of � 1904.39(a)(2), is

AFFIRMED
and a penalty of $500.00
is assessed.

SO ORDERED.

���������������������������������� ����������������������������������������������� �� /s/ �����������������������������������������

Date:
November 17, 2017 ��������������������������������������� ��� HEATHER
A. JOYS

Administrative Law
Judge Atlanta, Georgia