MPS Products Corp.

Read the official release (oshrc.gov)

Plain-English summary

OSHA inspected MPS Products during steel erection work in Massachusetts and cited two fall hazards. Two employees worked on steel beams 29 feet above the ground without tying off, while another employee briefly climbed a scissor lift's guardrails to reach the structure. The judge affirmed the steel-erection fall-protection item because the untied workers were in plain view for about 20 minutes and the foreman failed to provide adequate oversight. MPS also failed to prove unpreventable employee misconduct because its disciplinary policies were not effectively enforced when earlier safety violations were observed. The general duty clause item was vacated because the lift-rail climbing occurred too briefly for the Secretary to establish that MPS knew or should have known of it. A $5,070 penalty was assessed for the affirmed fall-protection violation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.760(a)(1) and 29 U.S.C. § 654(a)(1).
• Outcome: Steel-erection fall-protection item affirmed with a $5,070 penalty; general duty clause item vacated.
• Key point: A plainly visible fall hazard can establish constructive knowledge, while a momentary unsafe act may be too brief for a supervisor to discover through reasonable diligence.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1 7 -0 372

MPS PRODUCTS CORP. ,

Respondent.

Appearances:

J ames Polianites , Esq.,

Office
of the Regional Solicitor,
Boston, MA

For the Complainant

Paul J. Katz, Attorney

Chestnut Hill, MA

For the Respondent

Before:   
Carol A. Baumerich

Administrative Law Judge

DECISION AND ORDER

Respondent
MPS Products Corp.
(Respondent or
MPS ) is a business engaged in
steel erection
construction .
In response to a complaint,
the Occupational Safety and Health Administration (OSHA) inspected Respondent’s
steel erection
worksite in
Rockland, Massachusetts . Following inspection, OSHA issued
to Respondent
a
two -item serious citation and a notification of penalty alleging
employee exposure to fall hazards, in violation of steel erection standard 29 C.F.R.
§
1926.760(a)(1) and
in
violation of section 5(a)(1) of the
Occupational Safety and Health Act of 1970
(the Act) , 29 U.S.C. § 65 4(a)(1). The Secretary proposed a total penalty of $10,140.00 for the citation.

Respondent
MPS
timely contested the citation, bringing the matter before the Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the
Act ,
29 U.S.C. § 65 9(c).
A hearing
was held in
Boston, MA on February
23,
and March 15, 2018 .
1

Both parties were
represented by counsel at the hearing. Both parties filed
post-hearing brief s .
Respondent filed a reply brief.

F or the following reasons, serious citation 1, item 1
is vacated,
serious citation 1, item 2
is
affirmed ,
and a total penalty of
$ 5,070 .00
is assessed.

JURISDICTION

Based on the record, I find that at all relevant times Respondent MPS was engaged in a business affecting
interstate
commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act.
I also find that the Commission has jurisdiction over the parties and subject matter of this proceeding.
(Tr. 9; Answer; Resp. Br. 4).

ISSUES

Complainant, the Secretary of Labor (Secretary),
contends that Respondent MPS violated OSHA steel erection standard 29 C.F.R.
§ 1926.760(a)(1), when
employees were
exposed to falls greater than fifteen (15) feet to the ground, while working on a horizontal steel beam without using fall protection. Respondent denies violating the standard cited. Respondent contends that any violation found was due to
unpreventable employee misconduct ?

The issues are:

1. Did
   MPS violate
   steel erection standard 29 C.F.R.
   §
   1926.760(a)(1) ?

2. Did MPS know or with the exercise of reasonable diligence could
   MPS
   have know n
   of the hazardous worksite condition violative of the standard?

3. If
   standard
   1926.760(a)(1)
   was violated , was the violation due to
   unpreventable employee misconduct ?

T he Secretary
also
contends that Respondent MPS violated section 5(a)(1) of the Act, the general duty clause , when an employee was exposed to fall hazards, of up to twenty-nine (29) feet, while climbing and standing on the guardrails of an
u p-right self-propelled scissor s
lift and
when
exiting the lift to access the structure’s upper level where employees were working.
Respondent denies violating the general duty
clause. Respondent contends that a ny general duty clause violation found
resulted from
unpreventable employee misconduct .

The issues are:

4. Did
   MPS violate
   the general duty clause,
   section 5(a)(1) of the OSH Act ?

5. Did MPS know or with the exercise of reasonable diligence could
   MPS
   have known of the hazardous worksite condition violative of the general duty clause?

6. If
   the general duty clause was violated, was the
   violation due to
   unpreventable employee misconduct ?

FINDINGS
OF FACT

The
Company and the Inspected
Worksite.

MPS is a steel erection company.

MPS works on large projects erecting
steel
buildings and on
small ,
miscellaneous ,
iron install ation
projects.
MPS has been
in business since approximately
20 14 .

MPS works on between
ten
and
thirty
projects in a year.
(Tr. 105, 114, 160-61, 173, 235, 238, 319).

Michael
Pimental
is the President of MPS Products Corporation. (Tr. 113 -14 ) .
Mr.
Pimental
has been an
ironworker
most of his life. (Tr. 117 , 319-20 ).

Typically,
for
approximately
the year before the OSHA inspection ,
Mr.
Pimental
work ed
in the office, estimating, bookkeeping,
and
project managing. (Tr. 117). He
described himself as
stuck in the office. (Tr. 143).

MPS has approximately eight employees.
Employees
always work in crews.

There is always a foreman, also known as a competent person, on each jobsite,
working with the crew,
watching the workers. (Tr. 114, 13 0-3 1).

MPS has three
F oremen , including Riccardo
Servizio
and Jose dos Santo s
Pais . 2
(Tr. 313, 316 , 345 ).
MPS foremen have
an
OSHA-30 card, training in
CPR, first-aid, and in key industry hazards, fall protection and connecting. (Tr. 130-31, 232-3 5 , 361 ; Ex. R-35(c) ; Attachment B ).

According to
Mr.
Pimental
the highest risk factor in the steel erection industry is falls. (Tr.
115-16,
162). Foreman
Servizio
agreed . I ronwork is a dangerous job.
T he biggest hazard any MPS
employee
encounters is falling from the steel structure since serious injury or death
may
result. (Tr. 317-18, 321-22, 347).

The MPS
W orksite on the
D ay of the OSHA
I nspection

On the day of the OSHA inspection,
January 13, 2017, MPS was
engaged in
the
steel erection
of
a building,
at 276 Weymouth Street, Rockland, Massachusetts.
(Tr. 319).

The project was
known as
“ Upper Baby ”
( Uppa
Baby),
the name on the plans for the steel building MPS was erecting.
3
(Tr. 271-75 , 296 , 400 ; Ex. R-40; Ex. R-42).

The
work site
superintendent
was Herb Volpe ,
who worked
for Integrated Builders.
(Tr.

25) .
Other than MPS ,
no other company was on the
work site that day. (Tr. 319).

At this worksite, the MPS
competent person
was
Foreman
Ric c ardo
Servizio . 4

The crew was Foreman
Servizio’s
responsibility.
The foreman is responsible for enforcing MPS’s safety rules, including the fall protection rule. (Tr. 350, Ex. R-1, p. 2). F oreman
Servizio’s
job
wa s to tell the employees what to do for the day and to make sure the job flow ed .
(Tr.
114, 131, 317,
319).

On the day of the OSHA inspection,
F oreman
Servizio
was the only MPS foreman on site .
(Tr. 318 , 390 ).

There were
seven
MPS
employees
under his supervision , including
Sabastian dos Santos, 5
Marcello
DaCruz ,
and
Romiro
Jorge . 6

(Tr.
319,
332,
338-40 ;
Ex. R-9;
Ex. R-16 , Ex. R- 33 ).
Foreman
Servizio
described the work performed that day as routine and repetitive. The work was to
connect the steel, land the joists, spread them. (Tr. 360).

On the day of the OSHA inspection the project was on schedule. (Tr. 227).

The project was halfway erected. (Tr. 328).

At the morning meeting
that day , Foreman
Servizio
told worker
DaCruz
to weld the bridging
out of the lift.
7

DaCruz
was told
to stay in the lift.

(Tr.
170,
325-2 7 ,
334-36,
344 , 388 ).

It was anticipated that
DaCruz’s
work
assignment
may take him from the first
level to the second level of the structure. (Tr. 326-27).

While not present at the worksite that day, i t was
Mr.
Pimental’s
understanding that
worker Jorge
also
was
assigned to weld the bridging of the structural member.
(Tr. 144-45).

Worker
DaCruz
was assigned to work at a location halfway down the project, about
eighty
to one hundred feet
(80 – 100 feet)
from where Foreman
Servizio
was working giving direction to the connectors and to the workers rigging steel. (Tr. 327-29). Foreman
Servizio
recalled that worker Jorge worked in the vicinity of
w orker
DaCruz . 8
(Tr. 330). The other
MPS
employees
worked near Foreman
Servizio . (Tr. 330).
That day,
employee
d os Santos work ed
as a “connector,” connecting the steel. 9
(Tr. 332, 338-40).

The OSHA Inspection.

On
the morning of
January
13, 2017,
at 9:00 a.m.,
the OSHA
Boston
South
(Braintree) , Massachusetts , Area Office received a complaint about possible
fall hazards
on a steel construction w orksite in
Rockland, Massachusetts .
In response to the complaint, t h at day
OSHA Compliance Safety and Health Officer (CO)
Alfonso Leone
travel ed
to the worksite
to
conduct an inspection. CO
Leone
arrived at the worksite, located at
276 Weymouth Street, Rockland, Massachusetts ,
around
11:00 a.m.

Upon arrival,
CO Leone parked on the side of Weymouth Street and observed an active construction worksite.

Two levels of steel were in place.
(Tr. 17-18, 20, 26; Ex. C-1).

CO Leone
observed
a
worker
sitting and
standing
on a steel beam,
on the second level, the top level
of the structure .
The worker wore a harness, but
the worker was
not
tied off using
f all protection.
The worker appeared to be handling a welding lead.

CO Leone photographed the individual on the second level of the steel, from his location on Weymouth Street, offsite, beginning at 11:03 a.m. 10
(T r.
19-23 , 63, 66 -68 , 94 ; Ex.
C-2, pp.
5,
6, 7, 8; Ex. C-5 ).
The worker photographed, assigned to do welding, was later identified by
Mr.
Pimental
and Foreman
Servizio
a s
Marcello
DaCruz . 11
(Tr. 170 , 381-8 4 ;
Ex. C-2, pp. 6, 7;
Ex. R-5(b), p.
3).
W orker
DaCruz
had
been instructed to weld the bridging of the structural steel from the scissor lift. (Tr.
170,
32 5 -2 7 ,
335,
388 ).

Mr.
Pimental
testified that worker
DaCruz
had a harness and lanyard when photographed. He did have a beamer. 12 He was not using fall protection. (Tr. 120).
Foreman
Servizio
agreed that the OSHA inspection photograph shows worker
DaCruz , out of the lift,
walking along on the steel without being tied off. (Tr. 386 , 388 - 89 ; Ex. C-2, p p . 7 , 8 ).

Foreman
Servizio
agreed that it would have been apparent to him or anyone in authority that worker
DaCruz
was not working from the scissor lift
as instructed . (Tr. 388-89).

CO Leone
photographed
employees
on the worksite for several minutes. He
then
drove
o nto
the worksite
and
parked . CO Leone
entered the office trailer
and
spoke to
worksite
S uperintendent Volpe .

Mr.
Volpe
identified
the worker on the steel as employed by MPS.
CO Leone explained that OSHA received a complaint about an alleged fall hazard on the jobsite
and he
was present to conduct an inspection.
At
CO Leone ’s request ,
Mr.
Volpe contact ed
MPS to have them provide a representative for the OSHA opening conference.
(Tr. 24- 27 , 65 ; Ex. C-5).
Superintendent Volpe showed CO Leone the site drawings, indicating the height of the second level of steel as twenty-nine (29) feet. 13
(Tr. 35, 37-38, 95-96; Ex. C-2, p. 4). Mr.
Volpe
said he
believed the employees were connecting. (Tr. 61).

As
Mr.
Volpe contact ed
the MPS representative for the OSHA opening conference, before the opening conference beg an,
CO Leone
stepped out side
onto the front platform of the office trailer. While on the front platform, CO Leone observed a
worker
climb out of a
red
Skyjack scissor lift.

To exit the red scissor lift ,
the worker stepped on the
lift’s
mid - rail
and
top rail ,
and then pulled himself up onto the steel beam.

T he worker
wore a harness but
was not tied off.
CO Leone observed the worker, on the steel, with a harness and lanyard in hand.

On ce on
the steel beam, he
still
was not tied off. CO Leone photographed
the
w orker on the steel beam
a t 11:21 a.m.

(Tr. 27- 3 2 , 39 ,
45,
72,
94 , 166 ; Ex. C- 2 , p p .
1,
2 , 3 ; Ex. C-5).

The

worker photographed, who exited the red Skyjack scissor lift by climbing the lift’s rails, was later identified by
Mr.
Pimental
and
Foreman
Servizio
as
Romiro
Jorge . 14
Mr.
Pimental
testified that the OSHA inspection photograph shows worker Jorge on the beam walking, with a beamer in his hand.

(Tr. 140 , 166 , 384-85 ;
Ex. C- 2 , p.1;
Ex. 5 (b) , p.
4 ).

It was
Mr.
Pimental’s
understanding that worker Jorge had been assigned to weld the bridging of the structural member. According to
Mr.
Pimental ,
MPS rents all-terrain scissor lifts so employees can weld bridging
out of the lift
per their usual procedure . Lifts are used on all MPS jobsites.
There is no evidence Foreman
Servizio
specifically instructed w orker
Jorge
to work from the lift that day.

(Tr.
135,
144) .

From outside the trailer
looking up ,
CO Leone also observed
and photographed
Foreman
Servizio
working on the second level of the steel. (Tr. 38).

When Foreman
Servizio
was called to the meeting with the OSHA compliance officer, he told the
workers
to take lunch. (Tr. 387 , 390, 392 ). Walking to the office trailer for the meeting, Foreman
Servizio
did not look up to see where the
w orkers were working or whether they were wearing their safety equipment. (Tr. 387).

In the office trailer, b efore the
OSHA
opening conference began, CO Leone
introduced himself to F oreman
Servizio
and explained the reason for his presence at the worksite , that OSHA had received a complaint regarding fall protection. (Tr. 32-34, 391-92; Ex. R-16, pp. 2-3).

Foreman
Servizio
said
the h eight of the top portion of the steel
was
twenty-nine ( 29 )
feet. CO Leone asked why the worker was not tied off. Foreman
Servizio
said the MPS worker who was working at the height of twenty-nine (29) feet was welding. T he workers were not tied off because they were connecting.

CO Leone asked
the current
stage
of
the
steel erection.

Foreman
Servizio
answered
they were in the connecting stage. CO
Leone asked at what height fall protection
is
required. Foreman
Servizio
answered
thirty (30) feet.
(Tr. 32- 34 ,
61-62 ) .

During the inspection, Foreman
Servizio
told CO Leone that MPS works with a safety consultant.

He
said
MPS h o ld s
mandatory safety meetings for all MPS
employees , including at this worksite. (Tr. 75-77).

CO Leone conducted the
OSHA
opening conference , in the office trailer,
with Foreman
Servizio
and
a
representative
from Integrated Builders.

CO Leone s tated
that he may interview employees and advised of
the
employee protection s stated
in
s ection 11(c) of the Act. (Tr. 34 -35 ).

Following the opening conference, CO Leone conducted a walk-around
of
the worksite. (Tr. 35 , 361-62 ) .

During the walk-around ,
CO Leone does not recall observ ing
the welder
or other
employees
working on the
second level of the
steel at twenty-nine (29 )
feet. (Tr.
36 ,
53,
362 ).
During the walkaround,
Foreman
Servizio
testified
the workers were at lunch. (Tr. 390).

During the walk-around, CO Leone observed that when the MPS employees
had been
working at twenty-nine (29) feet, they could
have been
seen from virtually every angle.

Nothing interfered with his or Foreman
Servizio’s
view to the second level of the structure from the ground. If Foreman
Servizio
had looked up when the MPS workers were on the steel, they would have been in plain view. (Tr. 38).

CO Leone noted that the structure appeared to be fully bolted.
H e
walked
around the
building
perimeter .

There was a crane in the back of the building. During
CO Leone’s inspection ,
the crane was not
in use or positioned to
hoist
structural components,
columns ,
or beams to the next level. During
the walk-around ,
CO Leone inspected the
crane .

T he crane was
out of
service
for maintenance.

There were tools and an oil pan under the crane.
(Tr. 3 6 - 37 , 41-42, 88 , 389 ;
Ex. R-9, p.
2 ;
Ex. R-33, p. 1 ) .

On the day of the OSHA inspection, a
crane from Chelmsford Crane Service, Inc., was on site . 15
(Tr. 244, 332-34, 371, 389; Ex. R-42). During
a segment
of that day,
the crane was not
operating, as maintenance
was
needed. 16

CO Leone credibly
testified that from the time he arrived at the worksite, at approximately 11:00 a.m., until the conclusion of the
OSHA
inspection, the crane was
out of service . W hen
CO Leone
photographed workers on the structural steel, the crane was not
operating.
(Tr. 36-37, 41-42, 88;
E x . C-2;
Ex. R-9, p. 2; Ex. R-33, p. 1).   

CO Leone
asked Foreman
Servizio
to speak to the
two
workers he photographed during the inspection.

CO Leo n e
asked to speak to the worker
he observed climbing the rails to exit the lift
onto the steel beam, who m
he photographed on the beam. In response to CO Leone’s request ,
one worker came over to speak with him. 17
The worker said he received
f all protection training and lift training.

The worker said he climbed out of the lift because there was no place to
put
a ladder
on the steel .

CO Leone did not speak to the
other worker, a
welder. (Tr.
37- 40 , 53 ;
See
Ex. R-16, pp. 2-3 ).

During the inspection, CO Leone recalled seeing a ladder from the ground to the first level of the structure. He did not see a ladder from the ground to the second level of the structure. (Tr. 47 .
See
Ex. R-16, pp. 2-3 ).

CO Leone conducted a closing conference.

He reminded the participants that the employee he interviewed had protections under section 11(c) of the OSH Act.

CO Leone reviewed his
inspection
observations
regarding
the lack of fall protection. CO Leone stated that because the
worker was welding and not connecting ,
and because there was no hoisting equipment
being used , the worker was required to be protected from falls at fifteen (15) feet. (Tr. 40-41 ; Ex. R-16, pp. 2-3. ).
Foreman
Servizio
recalled
a brief
closing conference .
18

(Tr. 339).

Following the on-site inspection, CO Leone contacted
Mr.
Pimental
to advise of the inspection. Mr.
Pimental
provided
training certifications
to OSHA . (Tr. 43-44 , 70 ).

Foreman
Servizio
testified
that at some point on the morning of
the OSHA inspection , he looked up and observed that
workers
DaCruz
and Jorge were tied off.

(Tr. 3 80- 81 , 386 ).

Foreman
Servizio
had a clear view to the location where
DaCruz
and Jorge were assigned to work that morning to observe
that
they were tied off . Later that morning, when
DaCruz
and Jorge worked on the steel without fall protection, Foreman
Servizio’s
view likewise would have been unobstructed.
19
At the hearing, after
re viewing the OSHA inspection photographs, Foreman
Servizio
assumed
that b etween 11:00 a.m. and 11:20 a.m. that morning, when CO Leone was photographing the worksite,
he
did not look up
to observe the workers .

Later t hat morning
as
he
walked to the office trailer to meet with CO Leone, at approximately 11:45
a .m.,
Foreman
Servizio
also did
not look up to observe the workers .
(Tr. 386-8 9 ; Ex. C-2, pp.
1, 6, 7 ).

MPS’ s
Workplace
Safety Rules and
Safety
Training

From the beginning MPS worked closely with a safety consultant Contractors Risk Management (CRM) to put together a safety plan.

MPS uses CRM to stay current with safety
training
and
new regulations .
Since 2013,
CRM
provided most of the
training
sessions
for MPS employees.

(Tr.
104-05,
116,
118, 281, 287-88 , 291 ; Ex. R-1 , Ex. R-5(a) ; Attachment B ).

MPS’s
S afety
P rogram
has many components , including safety rules, formal and informal mandatory training sessions,
jobsite
hazard
analyses
for
some projects , safety oversight by jobsite forem e n, safety monitoring inspections conducted by CRM and,
when
competing work demands
permit, by
Mr.
Pimental . R eview of the
hearing
record
reveals
that ,
in the period before and during the
OSHA inspection , there were
gaps in
the execution of
MPS’s
S afety
P rogram .
The
MPS S afety
P rogram prepared by CRM include s
a progressive disciplinary policy
to address safety violations and unannounced safety monitoring inspection s
conducted by CRM. The record reveals that
when CRM observed and reported unsafe conditions during worksite inspections,
MPS did not follow
through
and discipline the workers or forem e n who engaged in
the observed
unsafe
actions.

In the period before and during the OSHA inspection,
the record reveals
MPS’s
S afety
P rogram
lacking ,
due to
inadequate
safety
oversight
by the worksite foreman
and
lax
enforcement
when the safety rules were violated .

Workplace Safety Rules
and Disciplinary Policy

In 2014, CRM
prepared
MPS’s
S afety
P rogram
to follow the OSHA
Subpart R Steel Erection regulations . 20

(Tr.
118-19,
281, 287-88). One chapter in the
S afety
P rogram
concerns fall protection. (Tr. 118-19).

The
S afety
P rogram
states that for general employees, detail crews, and
deckers
“[e] mployees
on a walking / working surface with an unprotected edge more than 15 feet above a lower level must be protected.” (Ex. R-1, p. 45).

The
S afety
P rogram
also includes fall protection requirements for employees working as
“Connectors – meaning those working with a hoisting device . ”
21

Foreman
Servizio
stated MPS’s fall protection safety rule provides that
a worker, who is not connecting,
must be tied off
if
he is
on the steel
at fifteen (15) feet or higher. If the worker is connecting,
he is
allowed up to thirty (30) feet
before being tied off . (Tr. 322, 337).

Fall protection includes the worker’s harness, lanyard ,
and beamer
to clamp to the steel
as an anchor point. The workers must wear their fall protection equipment. (Tr. 322-23, 340-41).

The MPS
S afety
Prog r am
in evidence do es
not
set forth
safety
rules
regarding scissor lifts , generally,
or exiting scissor lifts , specifically. (Ex. R-1) .

MPS recognizes that standing or climbing lift railings exposes the worker to a fall hazard.

T his conduct is improper. (Tr. 136 -40 ).
CRM provides MPS employees lift safety
training . (Tr. 139; Attachment B).
Foreman
Servizio
testified that MPS has a rule that workers are not to climb the rails of a lift.

(Tr. 334-35).

Foreman
Servizio
testified that
the fall protection rule
and the rule that workers are not to climb the rails of a lift are
very important, because if a
worker falls off the steel,
t he
worker
could be hurt or possibly die.

Throughout
Foreman
Servizio ’s
employment with
MPS ,
these two rules have been active. (Tr. 347).

MPS has
a progressive disciplinary policy regarding safety violations, included in the MPS Safety Program, prepared by CRM in 2014. Pursuant to the policy, discipline for safety violations will progress as follows: 1 st
Violation: Verbal Warning, with documentation from the supervisor. 2 nd
Violation: Written Warning, signed by you and your supervisor, to be placed in your permanent record. 3 rd
Violation: Up to one-week suspension without pay, with documentation placed in your permanent record. 4 th
Violation: Grounds for termination. (Tr. 167-70, 172, 350-51; Ex. R-1; Ex. R-5(a)). The disciplinary policy included in the MPS Safety Program is dated May 2014; however, before the OSHA inspection, there are no records supporting Respondent’s claim that MPS workers were aware of this policy. Before the OSHA inspection, there are no signed documents that MPS employees understand the terms and conditions of the policy.
22
( Compare
Ex. R-5(a)
and Ex. R-44
with
Ex. R-5(b) and Ex. R-35(a), pp. 3, 4, 5). There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection.

Mr.
Pimental
testified that employees sign a certification located at the back of the Safety Program, stating that they read, understand, and will follow the Safety Program. (Tr. 121-22, 128-29, 357; Ex. R-1; Ex. R-44). The only signed Safety Program certifications in evidence are dated June 12, 2017, six (6) months after the OSHA inspection , signed by Foreman
Servizio
and workers
DaCruz
and Jorge .
23

(Tr. 280-82, 409; Ex. R-44).

A different progressive discipline policy regarding MPS rules, including safety rules, is set forth in the June 11, 2015 letter from
Mr.
Pimental
to employees. In addition to safety, the June 2015 letter addresse s
various MPS rules including conduct while on and off the job, approval for supply pickup, the responsibility of foremen for assigned trucks after hours, employees not allowed in the shop office area, no yelling or profanity, and metal scrapping, among other rules. (Ex. R-35(a), pp. 3,4; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp. 4, 5). Pursuant to the policy stated in the June 11, 2015 letter, discipline for rule violations will progress as follows: first offense - verbal warning, second offense - $150.00 fine, third offense - one week off with no pay. There is no
evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (written and signed verbal warnings issued to foremen) .

Safety Training

Mr.
Pimental
testified that he cares about the safety of his employees. “I don’t feel that I am lucky because I haven’t had an accident since the start of the company. I feel that I’ve done the proper training.” (Tr. 223-24 , 225 ;
See
Tr. 115,
132,
317).

All MPS employees receive new safety equipment: harnesses, retractable lanyards, hardhats ,
and beamers.

Every employee has a beamer, some employees have two beamers.

The beamer instruction manual is used in MPS fall protection training. (Tr. 119-20, 164, 341, 349, 164-66;
Ex. R-4).

During new employee orientation ,
Mr.
Pimental
asserts that the MPS Safety Program is reviewed with the new employee, pointing out the highest risk factors in the industry. (Tr. 121-22, 128-29, 135, 163-64, 356-57; Ex. R-1). As part of the new employee orientation program ,
every employee receives CRM training, including fall protection and lift safety training. (Tr. 122, 135, 159, 347, 361; Attachment B). Following orientation, the new employee is assigned to “shadow” a foreman on the jobsite, to familiarize the employee with MPS procedures and safety practices. (Tr. 121-23, 159, 337, 347, 356-57, 361).

CRM provides most
MPS employee
safety training .
(Tr. 116).

Except for
the very first CRM training session at MPS,
all subsequent CRM training sessions at MPS
were
conducted by
CRM Safety Specialist
Armand Bisson. 24
(Tr. 238 , 268-69 ; Ex. R- 36 ). Three or four times a year,
CRM comes to the MPS office to ret r ain all MPS employees.

These training
and refresher training
sessions are mandatory. (Tr. 142-43, 162-63, 307, 344-45, 365). Prior to the OSHA inspection,
CRM provided connector, fall protection, boom lift, scissor lift, and controlled decking zone training , to MPS employees . 25
(Tr.
104-05,
163, 305-06, 344-45,
Ex. R-39; Ex. R-69; Attachment B) . Following receipt of the OSHA citation in this case,
Mr.
Pimental
had
everyone go through safety retraining
on key points, fall protection, connecting, and ladder safety .
T he OSHA citation revealed refresher training was needed.
MPS posted the OSHA citation .
(Tr.
136, 141,
235; Ex. 10(a)).

CRM documents each training session with a sign-in sheet.
All CRM training sign-in sheets are on file with CRM for 2014, 2015, and 2016.
26
(Tr. 143, 172-73, 226).
CRM prepares and issues training certification cards to document the training session topic and the employee who attended
the training . Mr.
Pimental
maintains the CRM employee training certification cards.
Also
a ll CRM training certification cards are on file with CRM.
(Tr.
122,
143, 158-59, 163, 304-08 , 344-45, 365 ; Ex. R-39; Ex. R-69; Attachment B).

All the CRM training certification cards that predate the OSHA inspection
that were
in
Mr.
Pimental ’s
possession
are
in evidence. (Tr. 307-08 ; Attachment B ).

A r eview of the CRM training
certification
cards
during the period prior to the OSHA inspection
for
identified
MPS employees
working on the Upper Baby worksite
disclose s
the following training.

Foreman
Servizio
and workers
DaCruz , Jorge, and dos Santos received
b oom
l ift and
s cissor
l ift training on June 23, 2014
and
f all
p rotection training on March 30, 2016. Foreman
Servizio
and worker
DaCruz
received OSHA Subpart R for
c ontrolled
d ecking
z one training on June 24, 2014. Foreman
Servizio
and workers
DaCruz
and dos Santos received
c onnector
s afety training on March 30, 2016.
(Tr. 156 -58 , 22 3 -3 5 , Ex. 35(a)(b)(c); Ex. R-39; Ex. R-69; Attachment B).

There is
no evidence
that worker
Romiro
Jorge received
c onnector
s afety training.

Mr.
Pimental
was unable to state the training worker Jorge received. (Tr. 156 ; Attachment B).

Respondent highlights MPS’s claimed
“ ex cessive”
training at hearing and in post hearing briefing.
(Tr. 226;
Resp. Br.
14,
21,
24 ).

R eview of the CRM training
certification
cards in evidence
disclose that
only Foreman
Servizio
and worker
DaCruz
attended all
CRM
training sessions, prior to the OSHA inspection.
( Attachment B).

In addition to CRM training, MPS also provides informal employee safety training. Each workday
before work begins,
t he MPS foreman conducts a morning meeting
at the jobsite .

At the morning meeting,
Foreman
Servizio
directs the workers regarding their work assignment for the day, such as welding
or
connecting .
He
also
reminds
employees
who will
work
on the steel to tie off. (Tr. 326, 344-45,
359,
365).

On large jobs for which a job hazard analysis (JHA) has been conducted, the job foreman will informally communicate the JHA to employees at the morning meeting.
(Tr. 123-24, 129-30, 159-61, 342-43, 361).

Toolbox
T alks are conducted by the jobsite foreman, each Wednesday .

Different safety topics related to commercial construction are presented on a rotating basis , such as
housekeeping, fall protection, lift safety, ladder safety,
and
hydration on hot days, among others.

Several undated
T oolbox
T alk
t raining
r ecords
were offered into evidence ,
as examples.
27
The workers in attendance sign the bottom of the Toolbox Talk training sheet. (Tr.
124-25, 141-42, 161-64,
200-10,
342-43, 345 ; Ex. R-35(a), p p. 3, 4 ).

Two days before the OSHA inspection,
Foreman
Servizio
conducted a Toolbox Talk for the workers at the
Upp a
Baby jobsite . W orkers
DaCruz
and Jorge attend ed the talk.
The general
training topic was Construction Safety Guidelines.

Twenty recommendations to maintain safe work practices are listed
on the training sheet .
(Tr. 27 0 -7 9 ; Ex. R-40).
Foreman
Servizio
did not testify regarding this Toolbox Talk ; t herefore, the record is silent
regarding the amount of time
spent discussing
this
Toolbox Talk and which of the twenty safe work practice recommendations were discussed.
Generally, Foreman
Servizio
presented Toolbox Talks by reading “the piece of paper,” explaining the paper, and answering any questions asked. (Tr. 342-43).

Worksite Safety Monitoring
and Enforcement

CRM conducts unannounced
worksite
safety inspections of MPS’s larger projects
to check whether MPS employees are compliant with the safety rules. MPS scheduling of the CRM unannounced safety inspections is job specific. Mr.
Pimental
testified that he usually sends CRM to a specific worksite every other week. (Tr. 136, 198, 240, 284, 364).

Following their worksite safety inspection, CRM prepares a written safety report for MPS. Once received,
Mr.
Pimental
reviews and files the report. If the report notes deficiencies, Mr.
Pimental
speaks with CRM to find out what they observed at the jobsite. (Tr. 184, 198, 290-91, 300, 396). Mr.
Pimental
estimates that he receives a worksite safety report from CRM every other week. If this estimate is accurate, for 2015 and 2016, the two years prior to the OSHA inspection, MPS would have approximately fifty CRM worksite safety inspection reports. Mr.
Pimental
testified MPS has numerous CRM worksite safety reports on file. (Tr. 284, 290-91, 364). Again,
Respondent
“selected” a small number of CRM Work Site Safety Inspection Reports to offer in evidence, as examples. 28
(Ex. R-13; Ex. R-20(a); Ex. R-20(b); Ex. R-41; Ex. R-57).

It is notable that CRM inspected MPS’s Upper Baby worksite twice, once before the OSHA inspection and once after. (Tr. 391). The Upper Baby CRM Work Site Safety Inspection Reports would be most relevant to the fact finding in this case. Respondent did not introduce these reports into evidence.
29

Some of the select reports Respondent placed in evidence show safety compliance and only minor safety violations. 30 Other reports disclose serious safety violations and safety concerns observed by CRM. There is no
evidence that
MPS disciplin ed
the foremen or workers observed violating safety rules noted in the CRM Work Site Safety Inspection Reports .

For example,
CRM inspected the MPS worksite at Herb Chambers Lincoln Volvo, on September 17, 2015.

The MPS Foreman was Shawn
Hysette .
See
Attachment B. The CRM Project Work Site Safety Inspection Report notes “serious” fall protection violations.

Workers John and Sebastian were observed and photographed not properly tied off. Their lanyards were wrapped around steel and tied back to themselves. Also
Sebastian was observed walking to the work area across steel before tying off. The need to maintain one hundred percent fall protection while on steel above fifteen (15) feet was noted. The condition of the fall protection equipment available for use was discussed with the foreman. CRM suggested that a th orough
inspection be done on all fall protection available for use. (Ex. R-13, pp. 1, 4).

MPS did not discipline Foreman
Hysette
or workers John or Sebastian for this serious fall protection safety violation. (Tr. 300, 377-78; Ex. R-13, pp. 1, 4).
31 Foreman
Servizio
did not hear anything about these employees not being tied off in 2015. The identified employees have worked on Foreman
Servizio’s
crew.

Foreman
Servizio
does not recall either employee receiving discipline for not tying off in 2015. 32
(Tr. 377-78).

As a further example, o n November 16, 2016, CRM inspected the Parcel 25 Project. The CRM client was NEI General Contracting, not MPS. MPS workers were on the worksite at the time of the inspection. A steel erector was observed using a beam clamp with
PFAS
[personal fall arrest system].

Also observed was an MPS ironworker engaged in unsafe behavior,
having
no personal protective equipment (PPE), safety glasses / face shield when using a cutoff saw.
Mr.
Pimental
recalls following up with CRM regarding this report. (Tr. 283-91; Ex. R-41). There is no evidence that the ironworker was disciplined for the safety violation of working without PPE.

The final example offered details another worksite inspection. On December 13, 2016, CRM conducted a work site safety inspection of the MPS jobsite located at 141 Needham Street. The Foreman
was
Jose dos Santos
Pais . While the fall hazards are noted as well protected, the report also noted that the foreman did not know what an
SDS
[safety data sheet]
was and the safety program was not on site. The report noted the unsaf e condition of the access ladder to the roof not extending three feet above the landing. The CRM inspector specifically included his observation that “this crew needs an update in steel erection standards.” (Tr. 191-93, 197-98, 312-13; Ex. R-20(b)).

Regarding MPS jobsite visits, prior to the OSHA inspection,
Mr.
Pimental
had limited opportunity to step away from his office responsibilities and make unannounced site visits. Typically, beginning approximately a year before the OSHA inspection,
Mr.
Pimental
worked in the office, estimating, bookkeeping, and project managing. (Tr. 117). He
characterized it as being
stuck in the office. (Tr. 143). Mr.
Pimental
testified that it was difficult to say how often he visited
job sites, “a few times a month, but again, it’s all on my workload.” 33
(Tr. 240). Mr.
Pimental
did not visit the Upper Baby worksite during the week of the OSHA inspection. (Tr. 396).

Respondent issued only two disciplinary notices for safety violations prior to the OSHA inspection.

These notices were issued to MPS foremen.

On October 5, 2016, Foreman Jose dos Santos
Pais
received a verbal warning for not having his retractable lanyard hooked on while in the boom lift. On November 14, 2016, Foreman Riccardo
Servizio
received a verbal warning for not having his hard hat.

Foreman
Servizio
had no recollection of receiving discipline for this hard hat safety violation. (Tr. 169-70, 190, 313-14, 379; Ex. R-5(b), pp. 1, 2).
Mr.
Pimental
confirmed these are the only MPS disciplinary documents prior to the OSHA inspection. (Tr. 173). Notably, prior to the OSHA inspection no disciplinary notices were issued to MPS employees.

The only other disciplinary records in evidence are the verbal warnings given to workers
DaCruz
and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. Worker
DaCruz’s
verbal warning is dated January 13, 2017. Worker Jorge’s verbal warning is dated January 16, 2017.

Mr.
Pimental
and Foreman
Servizio
testified that worker Jorge was disciplined for exiting the lift by climbing the lift railings.

The lift rail climbing safety violation is not stated on the verbal warning worker Jorge received. (Tr. 140-41, 170, 190, 313-14, 346-47, 381, 389, 394-95; Ex. R-5(b), pp. 3, 4).

Foreman
Servizio
was not disciplined for the fall protection violations observed on the day of the OSHA inspection. (Tr. 379).

ANALYSIS

Alleged Violations

a. Serious citation 1, item 2 – alleged violation of standard 1926.760(a)(1) steel erection fall hazard.

The Secretary alleges that
MPS
violated 29 C.F.R. § 1926. 760 ( a )(1), 34
on or about
January 13, 2017 at the inspected worksite,
when
employee s
working without fall protection
and
engag ing
in steel erection activities ,
while working on horizontal steel beam s , w ere
exposed to fall hazards greater than fifteen (15)
feet
to
the ground
below. R espondent’s workers were not protected
from falls
by guardrail systems, safety net system s , personal fall arrest system s ,
positioning device systems, or fall restraint systems.
( Complaint, Ex. A ; Ex. R-9).

Applicable Law

To establish a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies to the facts, (2) the employer failed to comply with the terms of that standard, (3) employees had access to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation (i.e. the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition). Atlantic Battery Co.,
16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Applicability and Violation .

Respondent
wa s engaged in steel erection work at the inspected worksite. In post-hearing briefing,
Respondent
admits
the Secretary proved that the cited fall protection standard
was applicable to the worksite hazard cited and was
violated .
(Resp. Br.
27 , 38 ; Resp. Reply Br. 3-4 ).

Both
workers
Romiro
Jorge
and M arcello
DaCruz
were observed and photographed by CO Leone walking
and working
on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point. 35

They were exposed to the hazard of falling from that height. The standard
requires
that
employees walking or working on structural steel fifteen (15) feet
above a lower level
be protected from fall hazards . 36

(Tr.
19-23, 63, 66-68, 94,
140, 166,
170, 325-27, 355, 381-8 6,
388-89; Ex. C-2, pp.
1,
5, 6, 7, 8 ) .

The fall protection standard cited was applicable to
the worksite hazards observed.

The standard was violated.

Exposure

The OSHA
inspection photographs
show
workers
DaCruz
and Jorge
exposed
to fall hazards
while
walking
and working
on steel beams at a height of twenty-nine (29) feet above the ground level
without
being tied off to an anchor point .
(Ex. C-2 , pp. 1, 5, 6, 7, 8 ).

Respondent agrees
i ronwork is a dangerous job.

The biggest hazard any MPS employee encounters is falling from the steel structure since serious injury or death may result. (Tr. 115-16, 162, 317-18, 321- 22, 347).
Workers
DaCruz
and Jorge were exposed to the hazards the
steel erection fall protection standard 29 C.F.R. § 1926.760(a)(1)
address es .

Knowledge

Respondent’s knowledge of the serious violation may be established
by showing that the employer knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C. § 666(k) . See e.g.,
Nat’l
Eng’g & Contracting Co. v. OSHRC,
928 F.2d 762, 767 (6th Cir. 1991) ;
Revoli
Constr. Co ., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001) . An employer’s awareness of the violation may be shown through actual or constructive knowledge of the hazardous condition. The actual or constructive knowledge of a supervisor may be imputed to the employer . See
N & N Contrac tor s, Inc. , 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000),
aff’d ,
255 F.3d 122 (4th Cir. 2001) ;

Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000);
A.P.
O’Horo
Co ., 14 BNA OSHC 2004, 2007 (No. 85-369. 1991).

To establish constructive knowledge, an employer must fail to exercise reasonable diligence in discovering the hazardous condition. Precision Concrete Constr. ,
19 BNA OSHC 1404, 1407 (No. 99-0707, 2001) . Whether an employer was reasonably diligent rests on a variety of factors, “including the employer's obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.”
Id .;
See Pride Oil Well Serv. , 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).

Constructive knowledge is imputed
where a supervisory employee knew or sh ould have reasonably known about the safety violation.
P.
Gioioso
& Sons, Inc. v. OSHRC,
675 F.3d 66, 73 (1st Cir. 2012) ( Gioioso
II) ,
citing
Cent. Soya de P.R., Inc. v. Sec'y
of Labor ,
653 F.2d 38, 40 (1st Cir.1981)
( where two supervisors in charge of facility knew of the hazard, the
supervisory employees ’ knowledge of the hazardous condition existing within the scope of their supervisory responsibility,
was properly imputed to the employer) .

T he Secretary
contends that
MPS had constructive knowledge of the violative conduction , as
MPS
failed to exercise reasonable diligence to discover and prevent the
fall protection
violation .
Foreman
Servizio
failed to effectively monitor worker compliance with Respondent’s safety rules.

Foreman
Servizio
knew or reasonably should have known of the fall protection safety violations.

(Sec’y Br. 10-11, 14-15).

Regarding knowledge,
Respondent contends that the violation occurred in a matter of seconds and could not have been known to the foreman. (Resp. Br. 3, 9).

MPS had w ork rules and training programs
to address steel erection fall hazards .

The MPS Safety
Program
includ es a
rule requiring employees
to
wear and use fall protection when working at heights fifteen (15) feet
above a lower level . (Ex. R-1 , p. 45 ). Both
workers
DaCruz
and Jorge received CRM fall protection training.
( Appendix B). Foreman
Servizio
testified that when workers are assigned to work on the
steel,
he reminds the workers to tie off. On the day of the OSHA inspection,
workers
DaCruz
and Jorge
had not been
assigned to work on the steel. The Secretary does not dispute that Respondent had work rules that it communicated to its employees. (Sec’y Br. 15, n.1).

MPS’s fall protection rule and CRM fall protection training show that
Respondent anticipated the fall hazards present for workers engaged in steel erection. Respondent acknowledged that the biggest hazard any MPS employee encounters is falling from the steel structure
as
serious injury or death may result.
MPS’s fall protection rule was communicated to employees during
CRM training sessions,
new employee orientation, morning meetings with the jobsite foreman ,
and Toolbox Talks.

Close r eview of the hearing record reveals that
o n the Upper Baby worksite on the day of the OSHA inspection, Foreman
Servizio
provided inadequate safety
oversight and
supervision
to the
MPS
employees. That
day both workers
DaCruz
and
Jorge
were observed and photographed by CO Leone walking on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point.
Both
workers
were exposed to the hazard of working on the structural steel without fall protection.

(Ex. C-2 , pp. 1, 5, 6, 7, 8 ).
It is the obligation of the worksite foreman to supervise the work and call attention to employee safety lapses. (Tr. 31).

That day,
before the workers left the steel
structure
for their lunch break, Foreman
Servizio
also
worked on the second level of the steel.

Between 11:00 a.m. and 11:20 a.m. that morning, when C O
Leone was photographing the worksite, Foreman
Servizio
assumed
that
he did not look up. That morning as he walked to the office trailer to meet CO Leone at approximately 11:45 a.m.,
Foreman
Servizio
did not look up to see where the workers were working or whether they were wearing their safety equipment. (Tr. 38, 38 6-8 9; Ex. C-2, pp. 1, 6, 7 ).

The inspection photographs document the violative activity for approximately twenty (20) minutes. (Ex. C-2).

During the
OSHA inspection
walk-around, CO Leone observed that when the MPS employees had been working at twenty-nine (29) feet, they could have been seen from virtually every angle. Nothing interfered with his or Foreman
Servizio’s
view to the second level of the structure from the ground. If Foreman
Servizio
had looked up when the MPS workers were on the steel, they would have been in plain view. (Tr. 38).

Foreman
Servizio
testified that he directed
worker
Da Cruz to work from the
scissor
lift. OSHA inspection
photographs reveal that
workers
DaCruz
and
Jorge
were walking and working on the steel, not
working from the
scissor
lifts.

Foreman
Servizio
agreed that it would have been apparent to him or anyone in authority that worker
DaCruz
was not working from the scissor lift as instructed. (Tr. 386, 388-89; Ex. C-2, pp. 7,
8).

The safety violations of workers
DaCruz
and Jorge were readily
apparent
had Foreman
Servizio
taken steps to observe them. The record reveals that Foreman
Servizio’s
attention during the workday was on the specific tasks in which he was directly engaged, not on ensuring compliance with the workplace safety rules generally. Foreman
Servizio
testified that when he has a “moment” to move away from the work he is supervising, he “tries” to look around the jobsite to make sure everyone
is in compliance . (Tr. 329, 347-48). Foreman
Servizio
testified that he “tries” his best to keep an eye on his crew to make sure everyone
is in compliance . “I try to stay on them best I can, but I’m very busy.” (Tr. 363). On the morning of the OSHA inspection,
Foreman
Servizio’s
attention was on the crane, flying the steel, and giving direction to the connectors and the workers rigging the steel. (Tr. 327-28).

The facts
and testimony
confirm that
Foreman
Servizio’s
safety
o versight
and
supervision
was in adequate. Obvious safety violations were in plain view had Foreman
Servizio
only looked.
See
Kokosing Constr. Co . , 17 BNA OSHC 1869 , 1871 (No. 92-2596, 1996)
(“The conspicuous location, the readily observable nature of the violative condition, and the presence of [the employer’s] crews in the area warrant a finding of constructive knowledge.”);
Hamilton Fixture , 16 BNA OSHC 1073, 1089 (No. 88-1720, 1993) (finding an employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel),
aff’d
28 F.3d 1213 (6 th
Cir .
1994) ;
Ted Wilkerson, Inc ., 9 BNA OSHC 2012, 2016 (No. 13390, 1981)
( the leadman “would have been in a position to observe” the employee engaged in the hazardous conduct.) .

Further, it
appears
Foreman
Servizio
did
not recognize
that
workers
DaCruz
and Jorge working on the steel at twenty-nine (29) feet without being tied off
was a safety
rule
violation. Foreman
Servizio
incorrectly believed that
the
worker who w as
welding w as
“connecting” and
the
fall protection
requirement to be
being tied off
was not required below thirty (30) feet. 37 (Tr. 32-34, 61-62, 322, 337) .
See
Note
3 6
above .

The record does not disclose whether
Foreman
Servizio
knew worker Jorge had not received connector training. Failure to properly monitor
and enforce
the steel erection fall protection rules on this worksite also discloses inadequate supervision.

MPS did not take adequate measures to prevent the occurrence of violations. Review of the hearing record
reveals that in the period before and during the OSHA inspection, there were gaps in the execution of MPS’s Safety Program.

The MPS Safety Program prepared by CRM includes a progressive disciplinary policy to address safety violations and unannounced safety monitoring inspections conducted by CRM. The record reveals that when CRM observed and reported unsafe conditions during worksite inspections, MPS did not follow through and discipline the workers or foremen who engaged in the observed unsafe actions. In the period before and during the OSHA inspection, the record reveals MPS’s Safety Program lacking, due to
inadequate safety oversight by the worksite foreman, as discussed above, and
lax
enforcement of worksite safety
when safety rules were violated.

MPS
has
a progressive disciplinary policy regarding safety violations, included in the MPS Safety Program .
( Tr. 167-70, 172, 350-51;
Ex. R-1;
Ex. R-5(a);
Ex. R-44).

The disciplinary policy included in the MPS Safety Program is dated May 2014; however, before the OSHA inspection, there are no records supporting Respondent’s claim that MPS workers were aware of this policy. Mr.
Pimental
testified that employees sign a certification located at the back of the Safety Program, stating that they read, understand, and will follow the Safety Program. However, the only signed Safety Program certifications in evidence are dated June 12, 2017, six (6) months after the OSHA inspection. (Ex. R-44).
See
Note
23
and accompanying text
above .

There is no evidence that an
employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection.

MPS has a different progressive discipline policy regarding MPS rules, including safety rules, set forth in the June 11, 2015 letter from
Mr.
Pimental
to employees. (Ex. R-35(a), pp. 3, 4 ; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp.4, 5 ) .
There is no evidence that an y
employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (verbal warnings issued to foremen); Ex. R-35(a), pp. 3, 4).
There is no evidence either MPS
progressive disciplinary policy was used to enforce safety violation prior to the OSHA inspection.

CRM conducts un announced safety inspections of MPS’s larger projects to check MPS employee compliance with the safety rules , as noted previously . Following the worksite safety inspection, CRM prepares a written safety report for MPS, which
Mr.
Pimental
reviews and files.

If the report notes deficiencies, Mr.
Pimental
speaks with CRM to discuss their worksite observations.
(Tr. 184, 198 , 240,
290-91, 300,
364,
396).

Review of the few, select,
CRM
Work Site Safety Inspection Reports
Respondent offered into evidence
disclose serious safety violations or safety concerns observed by CRM. There is no record of MPS issuing discipline to the foremen or workers observed violating
the
safety rules . There is no evidence of safety program enforcement through MPS’s progressive disciplinary policies. Respondent witness CRM employee Brian Stevens
testified
that he did not know how MPS administer ed
discipline.

In other words, Mr. Stevens did not know how MPS enforced safety rules when employees engaged in unsafe behavior.

(Tr. 107). See
Note 2 4
above .

In September 2015 CRM inspected the MPS worksite at Herb Chambers Lincoln Volvo. The CRM September 2015 report notes “serious” fall protection
violat i ons . MPS did not discipline
the
worksite foreman or workers observed
engag ing in the
serious fall protection safety violation s . (Tr. 300, 377-78; Ex. R-13, pp. 1, 4). Foreman
Servizio
did not hear anything about these employees not being tied off in 2015. 38
(Tr. 377-78).

On November 16, 2016, CRM inspected the Parcel 25 Project.

The CRM client
wa s NEI General Contracting not MPS. An MPS ironworker was observed engaged in unsafe behavior, no
personal protective equipment (PPE), safety glasses / face shield when using a cutoff saw. (Tr. 283-91; Ex. R-41). There is no evidence that the
ironworker was disciplined for the safety violation of working without PPE.

Respondent issued only two disciplinary notices
for safety violations
to
foremen
prior to the OSHA inspection.

On October 5, 2016,
Foreman
Jose dos Santos
Pais
received a verbal warning for not having his retractable lanyard hooked on while in the boom lift.

On November 14, 2016, Foreman Riccardo
Servizio
received a verbal warning for not having his hard hat. Foreman
Servizio
had no recollection of receiving
this
discipline ,
showing
this warning lacked the intended
consequence of
promot ing
safety compliance.

(Tr. 169-70, 190, 313-14, 379; Ex. R-5(b), pp. 1, 2). Mr.
Pimental
confirmed that these are the only MPS disciplinary documents
prior to the OSHA inspection. (Tr. 173). Before the OSHA inspection, there is no evidence that MPS issued disciplinary notices for safety violations to any MPS employee.

The only other disciplinary records in evidence are the verbal warnings given to workers
DaCruz
and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. Respondent contends that worker Jorge was disciplined for exiting the lift by climbing the lift rail s .

The lift rail climbing safety violation is not stated on the verbal warning worker Jorge received. (Tr. 140-41, 170, 190, 313-14, 346-47, 381, 389, 394-95; Ex. R-5(b), pp. 3, 4). Foreman
Servizio
was not disciplined for the fall protection violations observed on the day of the OSHA inspection. (Tr. 379; Sec’y Br. 16-17).

The record reveals
that in the period before and during the OSHA inspection, MPS ’s safety program was lacking, due to lax
enforcement
of worksite safety .
CF & T Available Concrete Pumping, Inc ., 15 BNA OSHC 2195 (No. 90-329, 1993) (Employer’s lack of safety enforcement program established constructive knowledge.).

Knowledge Summary

On the day of the OSHA inspection,
the fall protection safety rule noncompliance of
worker s
DaCruz
and Jorge
was in plain view, readily observable by worksite Foreman
Servizio . The fall protection violation s were apparent
and should have been known to Foreman
Servizio .

Foreman
Servizio’s
failure to see the open and obvious fall protection violations, that were in plain view, is evidence of Foreman
Servizio’s
lack of reasonable diligence.

I find Respondent, through Foreman
Servizio , had constructive knowledge that workers
DaCruz
and Jorge were working on
the structural steel at twenty-nine (29) above the ground without using fall protection. See Simplex Time Recorder Co. v. Brock , 766 F.2d 575, 589 (D.C. Cir. 1985) (knowledge found where the violations cited were “based on physical conditions and on practices . . . readily apparent to anyone who looked and indisputably should have been known to management.”) .

Respondent
also
failed to exercise reasonable diligence
through
its
lax
enforcement of worksite safety when safety rules were violated.
Respondent’s failure to exercise reasonable diligence
establishes constructive knowledge.

Respondent had two written progressive disciplinary policies concerning safety. These policies remained
on paper
unused regarding
observed, reported, MPS employee
safety violations .
Respondent’s lax enforcement of
worksite safety discloses Respondent failure
take measures to prevent the occurrence of violations .

Classification

The Secretary characterizes
the violation of 29 C.F.R. § 1926.7 60(a)(1)
as
serious. A
violation is “ serious ”
if there is a
substantial probability
that
death or serious physical harm could have resulted from the
hazardous
condition .
The OSH Act, section 17(k),
29 U.S.C. § 666(k);
Nat’l
Eng’g & Contracting Co.
v. OSHRC ,
928 F.2d
at
767.

Workers
DaCruz
and Jorge were observed and photographed working on structural steel at the height of twenty-nine (29) feet, without using fall protection.

It is not disputed that a fall from the structural steel at twenty-nine (29) feet could result in severe injury or death. (Tr. 54-55, 162, 317-18, 321-22, 347).

T he citation item is properly characterized as serious .

b. Serious citation 1, item 1 – alleged section 5(a)(1) fall hazard violation.

The Secretary alleges that MPS violated
section 5(a)(1) of the OSH Act, the general duty clause, 39

on or about January 13, 2017 ,
at the inspected worksite,
when
an
employee
was
exposed to fall
hazards of up to
twenty-nine ( 29 )
feet from the top rails of an
u p-right self-propelled scissors lift ,
model Skyjack SJ 683 ZRT (Skyjack lift) ,
while climbing
and
standing on the guardrails and exiting the lift to access the
structure’s
upper level
where
employees were working .

The Secretary alleges that one feasible means to abate the hazard, among others, would be to utilize a ladder to access the upper working surface, after the steel decking is put in place and a Controlled Access Zone is established. The use of a boom lift
of proper size and design for the terrain 40
would also serve this purpose.

Further, the Secretary alleges that another feasible means to abate the hazard would be to access and egress the upper working surface of the steel beam through the access gate of the aerial lift after the employee secures himself to a fall protection system. ( Tr.

47 -51 ;
Complaint, Ex. A ; Ex. R-16) .

Applicable Law

To prove a violation of the general duty clause, the Secretary must establish that: (1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. See, e.g., Arcadian Corp. , 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004) (citation omitted). The Secretary must also establish that the employer knew, or with the exercise of reasonable diligence could have known, of the hazardous condition. Burford's Tree, Inc. , 22 BNA OSHC 1948, 1949 (No. 07-1899, 2010) (citations omitted)
aff’d , 413 F.
App’x
222 (11 th
Cir. 2011) (unpublished).

Respondent does not contest that the actions of
a
worker, climbing the scissors lift rail s
to access the upper level of the structure, presented a workplace hazard, recognized by Respondent and the steel erection industry,
that was
likely to cause death or serious physical harm. Respondent does not contest that the Sec re tary proved a feasible and effective means exi s ted to eliminate or materially reduce the hazard cited. (Resp. Br. 28, 38 ; Resp. Reply Br. 3 ). Respondent contends that the Secretary has not proved constructive knowledge regarding the general duty clause violation .
(Resp. Reply Br. 1- 3 ).

The hazardous
workplace activity

D uring the OSHA inspection, CO Leone observed worker Jorge climb out of a red Skyjack scissor lift . To exit the scissor lift, worker Jorge
s tepp ed
on the lift’s mid-rail and top rail, and
then pull ed
himself up onto the steel beam, to access the upper level of the structural steel, at twenty-nine (29) feet above the
g round. When he exited the lift and pulled himself up on to
the steel beam, worker Jorge was not tied off. CO Leon e
photographed worker Jorge walking on the steel beam
not
tied off. (Tr. 27-32, 39, 45, 72, 94, 140, 166, 384-85; Ex. C-2, pp. 1, 2, 3) .
The Secretary asserts that a worker climbing the guardrails to enter and exit an aerial lift, exposes the worker to fall hazards, and potentially subjects the lift to destabilizing stresses for which it was not designed.

(Tr. 50).

Worker
Jorge ’s

actions of climbing the lift’s mid - rail and top rail to exit the scissor lift to access the upper level of the structural steel, at twenty-nine (29) feet above the ground, is a hazardous activity.

Hazard recognition

There is no dispute, a worker climbing the rail s
of a scissor lift, raised to the height of approximately twenty-nine (29) feet
above ground,
is a hazard likely to cause death or serious physical harm. The MPS Safety Program in evidence does not set forth safety
rules
regarding scissor lifts, generally, or exiting scissor lifts, specifically. (Ex. R-1). MPS recognizes that standing or climbing lift railings exposes the worker to a fall hazard. This conduct is improper. (Tr. 136-40 ; Resp. Br. 9, 39 ).

Foreman
Servizio
testified that MPS has a rule that workers are not to climb the rails of a lift.
A worker climbing the lift rails could slip and fall. Throughout Foreman
Servizio’s
employment with MPS, th is
rule
has
been active. (Tr. 334-35,
34 , 360 ; Resp. Br. 9) .

The manufacturer’s Skyjack Operating Manual,
in the section entitled Safety Precautions, includes
a pictogram of an individual climbing on the lift’s guardrails, covered by the universal NO sign, a circle with a crossline. The accompanying text states:
“ DO NOT
sit, stand or climb on the guardrails. ”
(Ex. C-4, p. 2, manual p. 15; Tr.
45,
48-49,
137-38).

Mr.
Pimental
testified that MPS employees receive CRM lift training that includes the Skyjack Operating Manual. Foreman
Servizio
testified he believes the MPS rule that workers are not to climb the rails of a lift was adopted from the lift manufacturer’s operating manual. (Tr. 137-39, 334-35; Ex. C-4; Attachment B; Resp. Br. 20).

The construction industry also recognizes the hazard of climbing the mid-rail and top rail
to exit
an aerial lift .

The American National Standards Institute ( ANSI )
standard
for self-propelled
elevating work platforms, ANSI/SIA A92.6-2006,
also
instructs that
the railings
of an aerial platform
should not be climbed. 41

Hazard likely to cause death or serious physical harm

There is no dispute,
a
worker climbing the rail s
of a scissor lift, raised to the height of approximately twenty-nine (29) feet
above ground
is a hazard likely to cause death or serious physical harm. Respondent
acknowledged
the highest risk in steel erection is falls .
Foreman
Servizio
testified that the MPS rule that workers are not to climb the rails of a lift is very important, because if a worker falls off the steel, the worker could be hurt or possibly die. (Tr.
162,
347 ; Resp. Br. 38 ).

Feasible abatement of the hazard

Respondent does not contest that the Secretary has proved a feasible and effective means existed to eliminate or materially reduce the hazard cited. (Resp. Br. 28, 38).

The Secretary proposes two feasible means to abate the hazard presented by a worker climbing and standing on the lift guardrails to exit the lift to access the structure’s upper level where employees were working. First,
a
feasible means to abate the hazard would be to utilize a ladder to access the upper working surface .
(Tr. 47 , 51;
Complaint Ex. A ). It is
not
disputed that use of a ladder is a feasible means to abate the hazard.

Second, the Secretary
asserts
anoth er feasible means to abate the hazard would be to access and egress the upper working surface of the steel beam through the access gate of the aerial lift after the employee secures himself to a fall protection system. CO Leone testified that the lift could be repositioned, elevated to the working surface level, to enable the worker to exit
the
lift through the lift gate.
(Tr. 46-51;
Sec’y Br. 10;
Complaint Ex. A.). This
alternative
method
to abate
the hazard
is rejected , as it
is contrary to the safety
precautions
stated in the manufacturer’s
Skyjack O perating
M anual . 42

U se of a ladder to access the upper level of the structure
is
a feasible means to abate the hazard. It would materially decrease the
fall
hazard presented by the worker accessing the structure’s upper level by climbing the lift’s rails.

Knowledge of the hazardous workplace activity

T he Secretary
contends that
MPS had constructive knowledge of the violative conduction. In ignoring readily observable hazards, Foreman
Servizio
had constructive knowledge of the fall hazard to which
worker
Jorge was exposed. (Sec’y Br. 10-11).

Respondent contends that the Secretary has not proved constructive knowledge regarding the general duty clause violation.
Respondent’s contends that the violation occurred in a matter of seconds and could not have been known to the foreman. (Resp. Br.
3,
9 ;
Resp. Reply Br. 1-3 ) .

During the OSHA inspection, while standing on the front platform of the office trailer, CO Leone observed worker
Jorge
climb out of a red Skyjack scissor lift. To exit the red scissor
lift, worker
Jorge
stepped on the lift’s mid-rail and top rail, and then pulled himself up onto the steel beam.
In the time it took CO Leone to photograph worker Jorge, he was
on the steel, with a harness and lanyard in hand. On the steel beam, he was not tied off. CO Leone photographed worker Jorge on the steel beam, after he climbed out of the lift at 11:21 a.m.
(Tr. 27-32, 39, 45, 72, 94, 166; Ex. C-2, pp. 1, 2, 3; Ex. C-5).

MPS did not have
actual knowledge of the worker Jorge’s hazardous conduct in climbing the lift’s rails.

Mr.
Pimental
and F oreman
Servizio
had
never seen an employee climb out of
a
lift .

(Tr.
43-44,
360).

Whether an employer exercises reasonable diligence involves the consideration of several factors,
“ including
the employer’s obligation to have adequate work rules and training programs,
to
adequate ly
supervis e employees ,
to
anticipat e
hazards to which employees may be exposed, and
to
tak e
measures to prevent
the occurrence of
violations . ”
Precision Concrete Constr ., 19 BNA OSHC
at 1407. C onstructive knowledge may be
established
from an employer’s failure to exercise reasonable diligence in inspecting the worksite.
E valuating the reasonable diligence factors, the Commission considers evidence of the violation’s duration when determining whether the employer could have know n
of the conditions with the exercise of reasonable diligence. See Thomas Indus. Coatings, Inc ., 23 BNA OSHC 2082, 2085 (No. 06-1542, 2012);
Kaspar
Wire Works, Inc ., 18 BNA OSHC
at
2196-97 ;
Ragnar Benson, Inc.,
18 BNA OSHC 1937, 1940 (No. 97-1676, 1999).

Here,
one
worker ’ s conduct climbing the
lift’s
rails was very brief. Considering t he extremely short time during which this violative conduct took place ,
I find that
evidence of what
MPS ’s foreman saw or could have seen, with the exercise of reasonable diligence, does not establish MPS’s knowledge of the lift rail exit climbing alleged as a general duty clause violation.
Therefore, citation 1, item 1, is vacated.

Respondent’s Affirmative Defense – Unpreventable Employee Misconduct.

Respondent asserts the affirmative defense of unpreventable employee misconduct to each alleged violation. To establish this
affirmative
defense
of unpreventable employee misconduct ,
“an employer
must demonstrate that it (1) established a work rule to prevent the reckless behavior and / or unsafe condition from occurring, (2) adequately communicated the rule to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule whenever employees transgressed it.”
P.
Gioioso
& Sons,
115 F.3d 100,
109 (1st Cir. 1997)
( Gioioso
I ) ( citations omitted);
E.g.,
Manganas
Painting Co.,
21 BNA OSHC 1964, 1997 (No. 94-0588, 2007).

T he First Circuit recognized
the “OSH Act requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards” and that
the employer must prove the affirmative defense of unpreventable employee misconduct to not be liable for the violative conduct. Modern Cont’l. Const r . Co., Inc. v. OSHRC , 305 F.3d 43, 51 (1st Cir. 2002)
citing
Gioioso
(I) ,
115 F.3d
at
109 .

The factors illustrating Respondent’s constructive knowledge of the worksite hazardous condition also show that Respondent’s unpreventable employee misconduct defense fails.

Burford’s Tree, Inc ., 22 BNA OSHC
at
1951-52 (the factors for evaluating constructive knowledge are the same factors for evaluating the unpreventable employee misconduct defense.

Respondent contends , if the Secretary establishes any violation ,
it
was the result of unpreventable /
unforeseeable employee misconduct.
43
(Resp. Br. 8-9, 20, 22-27, 34).

The Secretary contends that Respondent’s unpreventable employee misconduct defense fails because
Respondent did not establish that
F oreman
Servizio
took sufficient steps to discover
the safety rule
noncompliance
of workers
DaCruz
and Jorge . Respondent’s defense also fails because
Respondent did not establish that MPS effectively enforced its safety rules when employees transgressed the rules.
(Sec’y Br. 14-15). 44

M PS’s had fall protection rules
designed to prevent the violations cited. The MPS fall protection rules
were communicated to employees during CRM training sessions, new employee orientation, morning meetings with the jobsite foreman, and Toolbox Talks.

Respondent failed to take steps to discovery
incidents
of safety rule
noncompliance

As described above, in the discussion regarding Respondent’s constructive knowledge
of the violation of standard 29 C.F.R.
§
1926.760(a)(1),
MPS’s worksite supervision of the employees on the Upper Baby
project
was not adequate. On the day of the OSHA inspection,
the safety rule noncompliance of
worker s
DaCruz
and Jorge
was in plain view, readily observable by worksite Foreman
Servizio . The fall protection violations were apparent and should have been known to Foreman
Servizio . Foreman
Servizio’s
failure to see the open and obvious fall protection
violations, that were in plain view, is evidence of Foreman
Servizio’s
failure to take steps to discover incidents of safety rule noncompliance.

Also,
i t appears Foreman
Servizio
did not recognize that workers
DaCruz
and Jorge working on the steel at twenty-nine (29) feet without being tied off was a safety rule violation. Foreman
Servizio
incorrectly believed that the worker who was welding was “connecting” and the fall protection requirement to be being tied off was not required below thirty (30) feet. Failure to properly monitor and enforce the steel erection fall protection rules on this worksite also discloses
a failure to take steps to discover rule noncompliance.

CRM conducts unannounced safety inspections of MPS’s larger projects to check MPS employee compliance with the safety rules. Review of the few, select, CRM Work Site Safety Inspection Reports Respondent offered into evidence disclose s
serious safety violations or safety concerns observed by CRM. There is no record of MPS issuing discipline to the foremen or workers observed violating the safety rules. There is no evidence of safety program enforcement through MPS’s progressive disciplinary policies .

It is notable
that CRM inspected MPS’s Upper Baby worksite twice, once before the OSHA inspection and once after. (Tr. 391). The Upper Baby CRM Work Site Safety Inspection Reports would be most relevant to the fact finding in this case. Respondent did not introduce these reports into evidence.

In the year before the Upper Baby project,
Mr.
Pimental
had limited opportunity to step away from his office responsibilities and make worksite visits.
(Tr. 117, 143, 240). This potential avenue of safety enforcement was not achieved or effective.

Respondent contends that
the unpreventable employee misconduct defense succeeds where the violative conduct is truly idiosyncratic, implausible, and unforeseeable. (Resp. Br. 3, 7, 26, 31, 38; Resp. Reply Br. 3). Respondent had a safety rule requiring fall protection when working at fifteen (15) above a lower level.

Respondent provided formal and informal fall protection training to employees. That said, Respondent also knew that serious fall protection violations previously had been observed on one of its worksites inspected by CRM. Respondent failed to enforce the fall protection safety rule and discipline the foreman and workers observed to have engaged in the unsafe conduct.

The fall hazards cited in this case were known and foreseeable by Respondent. The conduct of workers
DaCruz
and Jorge was foreseeable. It was not idiosyncratic.

In summary,
Foreman
Servizio
failed to effectively monitor MPS’s Upper Baby worksite to discovery worker noncompliance with MPS fall protection safety rules. On the OSHA inspection day, workers
DaCruz
and Jorge were observed and photographed by CO Leone walking on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point. Obvious safety violations were in plain view had Foreman
Servizio
only looked. Foreman
Servizio’s
safety
o versight
and supervision was inadequate.

Respondent did not effectively enforce its safety rules when
violations of the rules were discovered

The Secretary contends that MPS’s disciplinary program was haphazard and ineffective in its general application and inconsistent in safety rule enforcement when safety violations
were discovered.
(Sec’y Br. 17).

Respondent claims it used a progressive disciplinary system
for
when employees did not follow the safety rules. (Res p . Br. 21). The record shows otherwise.

Respondent had two written progressive disciplinary policies concerning safety.

These policies remained on paper unused regarding observed, reported, MPS employee safety violations.
MPS
ha d
a progressive disciplinary policy regarding safety violations included in the MPS Safety Program. (Ex. R-1; Ex. R-5(a); Ex. R-44).
There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection.

MPS had a different progressive discipline policy regarding MPS rules, including safety rules, set forth in the June 11, 2015 letter from
Mr.
Pimental
to employees. (Ex. R-35(a), pp. 3, 4; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp.4, 5). There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (verbal warnings issued to foremen); Ex. R-35(a), pp. 3, 4).
There is no evidence either MPS
progressive disciplinary policy was used to enforce safety violation s
prior to the OSHA inspection.

Review of the few, “select,” CRM Work Site Safety Inspection Reports Respondent offered into evidence disclose serious safety violations or safety concerns observed by CRM. The CRM September 2015 inspection report of the MPS worksite at Herb Chambers Lincoln Volvo notes serious fall protection violations. MPS did not discipline the worksite foreman or workers observed engaging in the serious fall protection safety violations.
(Tr. 300, 377-78; Ex. R-13, pp. 1, 4). Foreman
Servizio
was unaware of these fall protection violations. Communication by
Respondent to foremen and employees regarding safety breaches was lacking. The opportunity to learn from the safety violation and promote safety compliance in the future was absent. (Tr. 377-78).

The only other disciplinary records in evidence are the verbal warnings given to workers
DaCruz
and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. (Ex. R-5(b), pp. 3, 4). As these verbal warnings were issued in response to fall hazards observed by the compliance office during
the
OSHA safety inspection, they are accorded limited weight when evaluating MPS’s enforcement of its worksite safety rules. Foreman
Servizio
was not disciplined for the fall protection violations observed on the day of the OSHA inspection.

In the period before and during the OSHA inspection,
MPS did not take adequate steps to discover violations of MPS’s fall protection safety rules, and MPS did not effectively enforce the safety rules when violations were discovered.
For the reasons set forth above, regarding Respondent’s constructi ve
knowledge of
the violation of standard 29 C.F.R.
§
1926.760(a)(1),
Respondent’s unpreventable employee misconduct defense fails. Respondent failed to meet its proof burden regarding this affirmative defense.

Penalty
Determination

Under section
17 (j) of the OSH Act, the Commission
has
the authority to assess civil penalties for the violation of citations. 29 U.S.C. § 666(j). In assessing penalties, the Commission is instructed to give due consideration to
the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its history of previous violations. Compass
Envtl ., Inc. , 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010)
aff’d , 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation is generally afforded greater weight in assessing an appropriate penalty. Trinity Indus. , 15
BNA
OSHC 1481, 1483 ( No. 88-2691,
1992).

Regarding citation 1, item 2,
CO Leone testified that the gravity assessed was high because of the fall hazards to which the employees were exposed and the severity of the injuries that could occur. A fall from the structural steel at twenty-nine (29) feet
above ground
could have resulted in death or permanently disabling injuries. The probability was greater as the two exposed workers
DaCruz
and Jorge walked and worked on the steel beams, a very small working surface, without fall protection. The workers were
exposed to the hazard throughout the time CO Leone was present at the worksite photographing the workers.
The gravity-based penalty for this citation was
$12,675.00. Respondent was given a sixty (60) percent penalty reduction because of the employer’s size. The Secretary proposed penalty was $5,070.00. (Tr. 45, 53-55 ; Ex. R-9 ).

Regarding history, although Respondent had not been previously cited, there is no evidence of past OSHA inspections. (Tr. 80-81, 94-95). Therefore, Respondent’s history warrants neither an increase nor a decrease in the penalty amount. See M.V.P. Piping Co., Inc ., 24 BNA OSHC 1350, 1352 (No. 12-1233, 2014)
(finding that the history factor did not support a low penalty when the employer had not been inspected within the past five years).

In calculating the penalty, Respondent did not receive credit for good faith. (Tr. 8 0 -82 , 95 ;
See
Tr. 212-13; R-34 ). I find that the high gravity
of
this
citation item
warrants that factor receiving the most weight.
Considering
each
statutory factor,
a
penalty of
$ 5 ,0 7 0.00
is affirmed
for citation 1 item 2 .

In Summary

1. MPS violate d
   steel erection standard 29 C.F.R.
   §
   1926.760(a)(1).

2. MPS with the exercise of reasonable diligence could have known of the hazardous worksite condition violative of the standard .

3. S tandard
   1926.760(a)(1)
   was violated . T he violation
   was not
   due to
   unpreventable employee misconduct .

4. MPS
   did not
   violate
   the general duty clause,
   section 5(a)(1) of the OSH Act .

5. MPS
   did not know and
   with the exercise of reasonable diligence could
   not
   have known of the hazardous worksite condition violative of the general duty clause .

6. T he general duty clause was
   not
   violated .

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 on the foregoing decision, it is hereby ORDERED:

Citation
1 ,
item 2,
alleging a serious violation of 29 C.F.R.
§
1926. 760(a)(1)
is
Affirmed and a penalty of $ 5 ,0 7 0.00 is assessed.

Citation 1,
item 1,
alleging a serious violation of
the general duty clause is
Vacated.

SO
ORDERED.               

/s/ Carol A. Baumerich

Carol A. Baumerich

Judge, OSHRC

Dated:
October 13, 2020

Washington, DC

Complainant’s Exhibits

Description

Received

Notes

C-1

OSHA Notice of Alleged Safety or Health Hazards. Four pages.

Tr. 18

C-2

OSHA Inspection Photographs. Eight pages.

Tr. 43

C-3

ANSI/SIA A92.6 – 2006. Self-Propelled Elevating Work Platforms: Standards 8.7 – 8.10. Three pages.

Tr. 52

C-4

SKYJACK Operating Manual, including model 6832, pages 15 and 16. Three pages.

Tr. 52

C-5

Worksite drawing. One page.

Tr. 53

Respondent’s Exhibits

Description

Received

Notes

R-1

Select pages from
MPS Products Inc. Safety Program , May 2014. Pages 2, 28, 45, and 75. Five pages.

Tr. 137

R-4

Guardian Fall Protection Performance Safety Gear. Product Name:
Beamer 2000. Instruction Manual. Consistent with the page numbers in the Table of Contents, there are 14 pages, with the Manual Cover unnumbered. There is a blank page between pages 5 and 6. Sixteen pages.

Tr. 167

R-5(a)

MPS Disciplinary Policy forms signed on 07.12.17 by Frank Coughlin; Johnathan Shea;
Waverson
Goml;
Sebastiao
P. dos Santos; Brandon Seibert. Three pages.

Tr. 172

R-5(b)

Records of MPS verbal warnings:

p. 1 - Foreman Riccardo [Servizio] on 11.14.16 (no hard hat).

p. 2 – Foreman Jose [dos Santos
Pais] on 10.05.16 (retractable lanyard not hooked while in boom lift).

p. 3 – Marcello [DaCruz] on 01.13.17 (not tying off).

p. 4 – Romero [Jorge] on 01.16.17 (not tying off). Four pages.

Tr. 172; 313-14

R-9

OSHA Violation Worksheet, Citation 1, Item 2, Standard 1926.760(a)(1). Two pages.

Tr. 181

R-10(a)

Contractors Risk Management, Inc. - Training Seminar – Attendance Sheets, for training at MPS, all post-date the OSHA inspection (dates 02.06.17; 02.24.17; 08.28.17; 09.20.17; and 10.04.17). Five pages.

Tr. 241

R-13

Project Work Site Safety Inspection Reports for two MPS Products work sites. Four
pages.

Tr. 185, 218

Note: Ex. R-47 was rejected as a DUPLICATE of the first two pages of Ex. R-13. (Tr. 297, 300, 408).

Also: Ex. R-47, on occasion in the record, is incorrectly referenced as Ex. R-48. (Tr. 376-77, 408).

R-13, pages -1 and 4.

Project Work Site Safety Inspection Report for MPS Products Job Site: Herb Chambers Lincoln Volvo, date:
2015-09-17. Site Foreman: Shawn
Hyselle. NOTE:
Fall protection hazards observed for John, Sebastian, and Shawn
Hyselle
as foreman.

Tr. 185, 218

R-13, pages -2 and 3.

Project Work Site Safety Inspection Report for MPS Products Job Site: Herb Chambers Lincoln Volvo, date:
2015-08-20. Site Foreman: Shawn
Hyselle.

Tr. 185, 218

R-14

MPS Products Corp. Transactions by Account, dated 11.22.17. Received in evidence
- Closing Entries for 2015 and 2016. One page.

Tr. 179

R-16

OSHA Violation Worksheet, Citation 1, Item 1, Section (5)(a)(1), general duty clause.
Three pages.

Tr. 186-87.

R-20(a)

Contractors Risk Management Work Site Safety Inspection Report. MPS Products. Work site: Mansfield 620 West Street. Date: 2016-12-06. Supervisor: Ricci
Servizio. Five
pages.

Tr. 197-98;
218

R-20(b)

Contractors Risk Management Work Site Safety Inspection Report. MPS Products. Work site: 141 Needham St. Date: 2016-12-13. Supervisor: Jose [dos Santos
Pais]. Six pages.

Tr. 197-98, 218, 312-13.

R-26

Undated Training Record: Toolbox Talk. Accident / Incident Reporting. One
page.

Tr. 203-04

R-27

Undated Training Record: Toolbox Talk. Listening Safety. One page.

Tr. 205

R-29

Undated Training Record: Toolbox Talk. What Does an Accident Cost? One page.

Tr. 207

R-30

Undated Training Record: Toolbox Talk. Shop Safety. One page.

Tr. 210

R-31

Undated Training Record: Toolbox Talk. Recognizing Unsafe Conditions. One page.

Tr. 210

R-32

Undated Training Record: Toolbox Talk. Why Accidents Occur. One page.

Tr. 210

R-33

OSHA Compliance Officer handwritten inspection notes. Two pages.

Tr. 98-99, 407-08.

R-34

OSHA Letter to MPS Products, dated 01.24.17. Two pages.

Tr. 216

R-35(a)

Sabastian dos Santos training
records. MPS Products Corporation 06.11.15 letter signed by Sabastian dos Santos. MPS Products Safety and Health Program Certification. Sabastian dos Santos. Dated: 06.12.17. Five
pages.

Tr. 227-28, 234.

See Training Summary.
Attachment B.

R-35(b)

Marcello
DaCruz
training
records. MPS Products Corporation 06.11.15 letter signed by Marcello
DaCruz. MPS Products Safety and Health Program Certification. Marcello
DaCruz. Dated: [06.12.17 (Tr. 281)]. Five pages.

Tr. 231, 234.

See Training Summary.
Attachment B.

R-35(c)

Riccardo
Servizio
Hoisting Engineer License; training records. MPS Products Corporation 06.11.15 letter signed by Riccardo
Servizio. MPS Products Safety and Health Program Certification. Riccardo
Servizio. Dated: 06.12.17. Seven pages.

Tr. 234

See Training Summary.
Attachment B.

R-36

Contractors Risk Management, Armand Bisson, Safety Specialist, letter to MPS Products, dated 01.07.15. Two pages.

Tr. 269, 409

R-39

Copies of multiple employee training cards. Five pages.

Tr. 309, 409.

See Training Summary.
Attachment B.

[Some cards also appear in Ex. R-69.]

Note: Ex. R-59 was rejected as a DUPLICATE of R. 39, with reordered pages. (Tr. 303-04)

R-40

Training Record: Toolbox Talk. Topic C001: Construction Safety Guidelines. Worksite:
Uppa
Baby. Instructor: Ricci
Servizio. Date: 01.11.17. One page.

Tr. 270-71, 278, 408-09.

R-41

Contractors Risk Management Work Site Safety Inspection Report. NEI General Contracting. [The worksite general contractor,
not
MPS Products] (Tr. 286-87). Site: Parcel 25 Project #16-10-0001. Date: 2016-11-16. Supervisor: The NEI Superintendent. Four pages.

Tr. 291, 409

R-42

Chelmsford Crane Service, Inc. Invoice to MPS Products. Typed Invoice date: 01.21.17. Initial handwritten Invoice dated: 01.09.17. Job location:
Uppa
Baby. 276 Weymouth Street, Rockland, MA. Bill for crane and operator. Hook Work. Two pages.

Tr. 403, 408

R-44

MPS Products Safety and Health Program Certification. Three pages. Detailed below.

Tr. 282, 409

R-44, page 1

MPS Products Safety and Health Program Certification. Riccardo
Servizio. Dated: 06.12.17.

DUPLICATE. See Ex. R-35(c) p. 7.

R-44, page 2

MPS Products Safety and Health Program Certification. Marcello
DaCruz. Dated: [06.12.17 (Tr. 281)].

DUPLICATE. See Ex. R-35(b) p. 5. (Tr. 282).

R-44, page 3

MPS Products Safety and Health Program Certification.
Romiro
Jorge. Dated: 06.12.17.

R-57

Contractors Risk Management Work Site Safety Inspection Report. MPS Products. Work site: East Pier. Date: 2017-01-05. Supervisor: Ricci. Three pages.

Tr. 295, 409

R-69

Copies of multiple employee training cards. Five pages.

Tr.309, 409

See Training Summary.
Attachment B.

[Some cards also appear in Ex. R-39].

Note: Ex. R-50 and Ex. R-68 were rejected as a DUPLICATES of Ex. R-69, with reordered pages. (Tr. 303-04)

R-70

MPS Products Corp. Discipline Policy for violation of safety rules and procedures.

Five pages.

Tr. 368, 409.

Includes Disciplinary Policy dated May 2014. See Ex. R-5(a). (Tr. 351-53).

Employee

Boom Lift Genie S-65 Per OSHA 1926.453 and ANSI A92

Date: 06.23.14

Scissor Lift JLG 3394 RT Per OSHA 1926.451, 1926.452 (w) & 1926.454

Date: 06.23.14

Subpart R OSHA for Controlled Decking Zone Training

Date: 06.24.14

Connector Safety Training (2 hours)

Date: 03.30.16

Fall Protection Training ( 2 hours)

Date: 03.30.16

Danny
Aimole

x

Renato Barbosa

x

x

Fabio
Bolarinho

x

x

x

x

John Buckley

x

x

Marcelo
DaCruz

x

x

Marcello
Decosta

Marcello Cruz

Marcello Cruz

Jose Dos Santos Paris

Jose Dos Santos
Pais

Jose Dos Santos Paris

Jose
Dosparis

Jose
Dosparis

Sebastio
Dos Santos

x

x

Sebastian Dos Santos

Sebastian Dos Santos

Chad Gagnon

x

Shawn
Hyselle

x

Thomas Jayroe

x

Romiro
Jorge

x

x

x

Garrett
Ledwell

x

x

Robert
Ledwell

x

x

Shawn
McGonnigal

x

Michael
Pimental

x

x

Michael Pimento

Patrick J. Ruane

x

x

Brandon Seibert

x

Riccardo
Servizio
*

x

x

x

x

x

Jonathan Shea

x

x

Marco Soares

x

Joseph Tobin

x

Adam
Wetson

x

· Riccardo
Servizio
completed additional training with Contractors Risk Management: National Safety Council (NSC) First Aid Course, dated 08.22.16, and NSC CPR and AED Course, dated 08.18.16. Ex. R-35(c).

"

1
Respondent’s introduction of exhibits at the hearing was disorganized and redundant. (Tr. 145-54, 174-75, 181-200, 216-18, 227, 255-56, 296-304, 351-54). See
Attachment A – Exhibit Summary.

Present both hearing days were OSHA Compliance Officer (CO) Alfonso Leone, MPS President Michael
Pimental
and MPS Foreman Riccardo
Servizio . (Tr. 7, 253-54, 260, 265, 393-94, 411).

2
Foreman
Jose dos Santos
Pais
is also identified in the record as Jose dos Santos Paris, and Jose
Dosparis . (Tr. 312-13; Attachment B).

3
Work on this project began sometime after January 5, 2017. (Tr. 295-96).

4
Foreman
Servizio
worked with MPS since the beginning. (Tr. 115, 132, 316-17). Working with MPS, at the time of the Upper Baby project, Foreman
Servizio
had been an ironworker for nine years and a foreman for three years. (Tr. 316-17).

5
Employee Sebastian dos Santos’s first name also appears in the record as
Sebastiao
and
Sebastio . (Ex. R-16; R-35(a); Attachment B). Employee dos Santos worked with MPS since the beginning. (Tr. 226).

6
Foreman
Servizio
sometimes worked with
employees
dos Santos,
DaCruz , and Jorge. They were not part of his usual crew. (Tr. 357). The other MPS employees on the jobsite that day are not identified in the record.

7
On a steel structure, joists span across beams. Bridging goes through the joists and ties them
together. (Tr. 325, 382).

8
Foreman
Servizio’s
testimony regarding where employee Jorge worked on the morning of the OSHA inspection was inconsistent and confused. First, Foreman
Servizio
testified that Jorge was the only employee working near employee
DaCruz
halfway down the project. (Tr. 330). Foreman
Servizio
later contradicted this testimony, stating employee Jorge worked near Foreman
Servizio , connecting the bolts behind the connectors. (Tr. 337, 340, 381-82). Thereafter, Foreman
Servizio
confirmed that the inspection photographs taken of employees
DaCruz
and Jorge, by CO Leone, show only part of the jobsite. The other part of the jobsite, where employees worked with Foreman
Servizio
is not shown in the OSHA photographs in evidence. (Tr. 392-93; Ex. C-2).

Foreman
Servizio’s
testimony was confused regarding the events on the morning of the inspection. Specifically, his testimony was unclear regarding where employee Jorge was working
and whether employee Jorge had been instructed to weld bridging or connect bolts . (Tr. 330, 337, 340, 381-82). When shown the OSHA inspection photographs during cross examination, Foreman
Servizio
agreed that employee Jorge appears in a photograph taken by CO Leone. (Tr. 384-85; Ex. C-2, p.1). Great weight is given to CO Leone’s testimony that this inspection photograph was taken of the worker he observed climb the lift rails to access the structural steel. (Tr. 31-32; Ex. C-2, p.1).

Foreman
Servizio’s
testimony that employee Jorge worked near him connecting bolts behind the connectors is not credited. Foreman
Servizio’s
inconsistent, confused, testimony reveals his poor recollection of the events on the day of the OSHA inspection.

9
Subpart R – Steel Erection, Section 29 C.F.R. § 1926.751, definitions state, in pertinent part:

Connector
means
an employee who, working with hoisting equipment ,
is
placing
and connecting structural members and/or components.

Hoisting equipment
means commercially manufactured lifting equipment designed to lift and position a load of known weight to a location at some known elevation and horizontal distance from the equipment’s center of rotation. “Hoisting equipment” includes but is not limited to cranes, derricks, tower cranes, barge-mounted derricks or cranes, gin poles and gantry hoist systems.

10
CO Leone was a credible, forthright, witness who answered questions to the best of his recollection on direct and cross examination, without exaggeration. (Tr. 74-75). CO Leone worked in construction for 20 years. (Tr. 63).

11
Employee
DaCruz’s
name also appears in the record as Marcelo Da Cruz, Marcello
Decosta , Marcello Cruz. (Ex. R-35(b)); Attachment B). At the time of the inspection employee
DaCruz
had worked for MPS for approximately three years. He was regarded as a safe,
dependable ironworker. (Tr. 325, 329-30, 346, 358).

12
A beamer is a fall protection device that provides an anchorage point for the worker to tie off to the structural steel. (Tr. 119-20, 164, 340-41, 349; Ex. R-4)

13
CO Leone did not take measurements at the worksite. (Tr.
35,
69).

14
Employee
Jorge’s first name also
appears in the record as
Ramiro or Romero.
(Ex. R-5(b), p. 4). Employee Jorge’s work safety record was pretty good. (Tr. 330). Documents disclose that employee Jorge worked for MPS for at least three years. Worker Jorge attended training sessions on June 23, 2014 and March 30, 2016. (Ex. R-39, Ex. R-69; Attachment B). Worker Jorge signed an MPS Safety Program certification on June 12, 2017. (Ex. R-44, p. 3).

15
It is not disputed that a crane was on site on the OSHA inspection
day. MPS received an invoice, dated January 21, 2017, from
Chelmsford Crane Service, Inc., for the week of January 9, 2017, including January 13, 2017 . The invoice was for “Hook Work,” rental of a crane and operator,
on the
Uppa
Baby worksite .
(Ex. R-42 , p. 1 ).

Hook work describes putting structural members on the crane’s hook and swinging the structural members into place to be connected. (Tr. 332-34, 371, 400-01).

The crane rental invoice does not identify,
during
any
specific
day,
the hours
when the
worksite
crane was
not
operational
or temporarily out of service for on-site repair .

Mr.
Pimental
testified that the invoice includes a handwritten verification of hours the crane was on site and what the crane was doing, signed by the foreman, at the end of the week. (Tr. 400; Ex. R-42, p. 2).

This description of the invoice is rejected.

The copy
of
the Chelmsford invoice, page two, reviewed by
Mr.
Pimental
at the hearing was illegible. (Tr. 400, 403). This likely impacted his description of the invoice, page two. In fact, the legible copy of the invoice, page two, located before the hearing closed and received in evidence, shows the document date and signatures at the
beginning
of the week, on January 9, 2017. The signature on the document, while not clearly legible, does not match Foreman
Servizio’s
acknowledge d
signature, on other documents in evidence. (Tr. 408).
( Compare
Ex. R-42, p. 2
with
Ex. R-5(b), p.1;
Ex. R-35(c), pp. 5, 7;
Ex. R-40; Ex. R-44, p.1).
The invoice, page two, reflects crane work hours anticipated, not a verification of hours the crane was operational on any specific day.

16
Great weight is given to CO Leone’s observation that the crane was out of service when he was present at the worksite. CO Leone’s photographs taken while offsite were taken before the lunch break that day, which began when Foreman
Servizio
left the steel structure for the OSHA opening conference. (Tr. 36-37, 41-42, 88; Ex. C-2; Ex. R-9, p. 2; Ex. R-33, p. 1). Mr.
Pimental’s
testimony that the crane was in use the entire day is not credited. Mr.
Pimental
was not present on the worksite .

He lack s
first-hand knowledge. (Tr. 396).
Foreman
Servizio’s
testimony that the crane was operational the entire day is not credited . (Tr. 332-34, 371 -72 , 389 -90 ).

Foreman
Servizio’s
testimony disclosed his poor recollection regarding the OSHA inspection day and is not reliable. See
Note 8.

17
CO Leone’s handwritten inspection notes record he spoke
to
an ironworker identified as
Saba s tia o
d os Santo s. (Tr. 60, 71-72; Ex. R-16, pp. 2-3; Ex. R-33) .

Ironworker dos Santos was assigned to work as a connector on the day of the OSHA inspection. (Tr.
332, 338-40). See
Notes 5 and 9 and accompanying text.

18
Respondent’s representatives state they learned OSHA issued citations based on the inspection when the citations were received in the mail. (Tr. 252, 339, 346, 388). Promptly following the inspection, Mr.
Pimental
disciplined the workers photographed and identified during the OSHA inspection, as exposed to the worksite fall hazards. (Tr. 170, 190, 313-14, 394-95; Ex. R-5(b), pp. 3, 4). Worker Marcello
DaCruz
received a verbal warning for not tying off on January 13, 2017. Worker Romero Jorge received a verbal warning for not tying off on January 16, 2017. The citation issued on January 24, 2017, eleven days after the inspection. (Complaint, Exhibit A).

Respondent claims that the OSHA closing conference was inappropriate and prejudicial, as the exposed employees were not identified, and no information was provided regarding possible violations. Respondent’s claims are rejected, as contrary to the credited record evidence. (Resp. Br. 14-18, 21-22, 33, 36; Resp. Reply Br. 5).

19
Foreman
Servizio’s
testimony that he had to move or change position from his work location to observe whether the employees were working safely is not credited. (Tr. 329).

20
Safety Program excerpts are in evidence. (Ex. R-1, pp. 2, 28, 24, 75; Ex. R-44).

21
The MPS Safety Program states that for employees working as “Connectors – meaning those working with a hoisting device,” employees

· M ust have connector training.

· No fall protection is required when working less than 15 feet from a surface below.

· When working between 15 – 30 feet – employees must be provided with a personal fall arrest system, positioning device system or fall arrest system and wear the equipment necessary to be able to be tied off; or be provided with other means of protection from fall hazards. This means carrying all equipment with you.

· When working over 30 feet – 100 % fall protection required.

(Ex. R-1, p. 45).

22
Mr.
Pimental
testified that MPS has a revised disciplinary policy. (Tr. 154-55). The MPS “disciplinary action report” was not provided to the Court or to Counsel for the Secretary until the second hearing date, long past the extension of time granted for prehearing exhibit identification. The disciplinary action report and Foreman
Servizio’s
testimony that this report has been active throughout his employment with MPS are accorded little weight. (Tr. 354-57, 366-68; Ex. R-70).

23
Mr.
Pimental
asserted that employees
sign Safety Program certifications every year. (Tr. 279-80; Ex. R-44). This assertion, unsupported by documentation, is not credited. Mr.
Pimental
claims he does not have earlier certifications, before June 2017, because when MPS’s office moved
stuff got lost and mixed-up. (Tr. 280; Resp. Br. 11 n.4, 36-38). This claim is rejected. The MPS office move was in approximately 2014. (Tr. 397). The office move does not explain the failure to introduce Safety Program certifications signed by MPS employees in 2015 and 2016, if those certifications existed. As discussed below regarding the limited CRM training certifications and sign-in sheets offered into evidence, Respondent’s claimed reason for the loss of relevant business
records is not persuasive and is not credited. See
Note 2 6
below.

Review of the entire record reveals that Respondent “selectively” chose specific records to offer into evidence. Respondent requests that the “selected” records be regarded as examples, representative of more extensive MPS safety records prepared prior to the OSHA inspection, but not offered into evidence. Respondent’s request is rejected.

It is reasonable to infer that if MPS or CRM had additional records prior to the OSHA inspection that supported Respondent’s claim of a comprehensive safety program,
that those
additional records would have been produced and offered into evidence . See
Capeway
Roofing Sys. Inc ., 20 BNA OSHC 1331, 1342-43 (No. 00-1986, 2003).

24
Armand Bisson remained employed by CRM at the time of the hearing. (Tr. 396). He was not called to testify. His absence was not explained.

Instead, Respondent called as a witness CRM employee, Brian Stevens, PhD. Prior to the hearing, Mr. Stevens spoke on the telephone with Armand Bisson and Respondent Counsel regarding MPS. Mr. Stevens had limited familiarity with MPS’s Safety Program. Mr. Stevens did not visit MPS’s Upper Baby project, the jobsite inspected by OSHA and by CRM. Mr. Stevens never presented a training module to MPS employees. He participated in one unannounced inspection of MPS, at Endicott College. Mr. Stevens was not personally involved in any MPS disciplinary actions. (Tr. 101-07, 391).

In response to a leading question from Respondent Counsel, Mr. Stevens answered that MPS has an excellent safety program. (Tr. 106). The weight accorded Mr. Stevens’s response is limited, as he did not know how MPS administered discipline. (Tr. 107). In other words, Mr. Stevens did not know how MPS enforced safety rules when employees engaged in unsafe behavior. Mr. Stevens’s assessment is based principally on his review of records and telephone conversations, rather than direct experience with MPS.

25
Prior to the OSHA inspection, in 2015 and 2016, MPS paid CRM $5,622.50 for safety training. (Tr. 175-79, 226; Ex. R-14).

26
Respondent introduced into evidence CRM training sign-in sheets for MPS employee training conducted in 2017, after the OSHA inspection. Respondent contends these CRM 2017 sign-in sheets are representative of the training CRM provided to MPS employees in 2014 and 2015. (Tr. 236-38, 241; Ex. R-10(a);
Resp. Br. 14, 20, 36-38). This
contention is rejected.
CRM retains records of all training it provides to MPS employees.

MPS
easily
could have requested copies of the 2014, 2015, and 2016 training records from CRM, prior to the hearing or in the interim between the first and second hearing dates.
(Tr. 154, 158-59, 172-73, 226).

Respondent failed to do so.

27
All Toolbox Talk records Mr.
Pimental
had on file are in evidence. (Tr. 211).

It is uncertain whether the undated Toolbox Talk records in evidence were presented before or after the OSHA inspection. (Tr. 200-10; Ex. R-26; Ex. R-27; Ex. R-29; Ex. R-30; Ex. R-31; Ex. R-32; Attachment A).

Mr.
Pimental
stated that some Toolbox Talk records went missing when he moved his shop. Respondent’s claim that when MPS’s office moved ,
in approximately 2014,
records were lost and mixed-up is unpersuasive and rejected.

See
Note 2 3
above. This is especially so, as
Mr.
Pimental
testified
he keeps these documents to use in an OSHA proceeding . (Tr. 211; Resp. Br. 15).

28
Like the CRM training records, CRM retains copies of the CRM Work Site Safety Inspection Reports. MPS could have obtained a copy of any specific CRM Work Site Safety Report requested. Respondent Counsel obtained documents from CRM regarding an MPS Work Site Safety Inspection Report, with a simple email request. (Ex. R-20(a), p. 5). MPS could have obtained any Work Site Safety Inspection Reports for the period prior to the OSHA inspection. Respondent chose not to introduce a more complete overview of CRM safety inspection findings that a larger, more representative sample of CRM Work Site Safety Inspection Reports would have provided.

Mr.
Pimental
asserts that the CRM Work Site Safety Inspection Reports show MPS is safety compliant. (Tr. 240). Had a more complete, less “selective,” production of the CRM inspection reports of MPS worksites supported this assertion of MPS safety compliance, I find that the more complete production of CRM inspection reports would have been offered into evidence. Absent production of this ready and available documentation to support the broad assertion that the CRM worksite safety inspections show MPS as safety compliant, this assertion is rejected.

29
As the CRM Work Site Safety Inspection Reports for the Upper Baby jobsite were not introduced into evidence, I do not credit Foreman
Servizio’s
general statement that CRM found no safety violations during those inspections. (Tr. 391). When he testified, Foreman
Servizio’s
recollection had faded and was not reliable. See
Note 8 above. Further, had these important, relevant CRM Work Site Safety Inspection Reports supported Foreman
Servizio’s
statement, I find that Respondent would have offered these reports into evidence.
See
Capeway , 20 BNA OSHC at 1342-43 (the party would have provided the evidence had it been
helpful ).

30
See
August 20, 2015 CRM Project Work Site Safety Inspection Report, concerning the MPS worksite at Herb Chambers Lincoln Volvo. (Ex. R-13, pp. 2, 3) (inspection notes no fall protection hazards observed); December 6, 2016 CRM Work Site Safety Inspection Report, concerning MPS worksite at Mansfield 620 West Street. (Ex. R-20(a)) (inspection notes workers were tied off while installing decking and in lifts; January 5, 2017 CRM Work Site Safety Inspection Report, concerning MPS worksite at East Pier. (Tr. 293-96; Ex. 57) (inspection noted ironworker detailing steel from scissors lift design).

31
The exhibit Foreman
Servizio
examined at the hearing is incorrectly identified in the transcript as Ex. R-48. The correct exhibit number is Ex. R-47, which exhibit was rejected as a duplicate of Ex. R-13 already in evidence. (Tr. 300).

32
During his employment with MPS, Foreman
Servizio
had no recollection of any MPS employee found not tied off. (Tr. 375). When Foreman
Servizio
was asked whether the MPS foreman ever discussed workers and discipline received, he answered “occasionally.” (Tr. 378).

33
Foreman
Servizio’s
recollection that since approximately 2014, Mr.
Pimental
conducted surprise visits, walking the jobsite, every few weeks, is given less weight. (Tr. 364, 396-97). Foreman
Servizio’s
testimony revealed his poor recollection. He was an unreliable witness.
See
note 8 above.

34
Section 1926. 760 ( a )(1) states:

Except a s provided by paragraph (a)(3) of this section, each employee engaged in a steel erection activity who is on a walking / working surface with an unprotected side or edge more than 15 feet (4.6 m) above a lower level shall be protected from fall hazards by guardrail systems, safety net systems, personal fall arrest systems, positioning device systems or fall restraint systems.”

35
Together with his supervisor CO Leone recommended the citation for the 29 C.F.R
§  1926.760(a)(1) violation. (Tr. 44-45, 67, 72).

36
In post-hearing briefing,
Respondent admits the Secretary proved that the cited fall protection
standard
applied and was
violated . (Resp. Br. 27 , 38 ; Resp. Reply Br. 3-4). Respondent does not contend that
the connector exception to the
Subpart R Steel Erection
fall protection requirements
applied
to the MPS
employees photographed by the OSHA inspector, who were not tied off while
working on the steel more than fifteen (15) feet and less than thirty (30) feet above a lower level.
(Resp, Br. 10 n.3, 36).

The
standard regarding employees working as connectors is an exception to the
Subpart R Steel Erection
fall protection requirements . 29 C.F.R.
§§
1926. 760 ( a )(1) (3); 1926.760(b). It would be
Respondent’s
burden to
prove
the exception
applied . 
Kaspar
Wire Works, Inc. , 18 BNA OSHC 2178, 2194 (No. 90-2775, 2000)  aff'd , 268 F.3d 1123 (D.C. Cir. 2001) (citations omitted).

The
c onnector exception applies only to
employees
who have “completed connector training in accordance with
§
1926.761.”

29 C.F.R.
§
1926.760(b)(2). Respondent produced no evidence that worker
Romiro
Jorge completed connector training. (Attachment B).
The connector exception does not apply.

Further, the steel erection standard defines “connector” as “an employee who, working with hoisting equipment, is placing and connecting structural members and / or components.”
29 C.F.R.
§
1926.7 51. The credible record evidence discloses that during the OSHA inspection of the Upper Baby worksite the on-site crane was out of service for maintenance. The workers photographed by OSHA were not working with hoisting equipment.
See
notes 15 and 16 and accompanying text above. Also, that day workers
DaCruz
and Jorge had not been assigned to work with hoisting equipment. Safety Standards for Steel Erection,
66 Fed. Reg. 5196, 5203 (Jan. 18, 2001) (to be codified at 29 C.F.R. part 1926) notes a specific definition for this exception in the Final Rule:

The
[connector]
definition is very specific; connecting is distinguished from other steel erection activities by the elements in the definition.

For example, spreading and securing bar joists by hand would
not be considered connecting, since that work is not done “with hoisting equipment. ”
 Therefore, an employee is a
“ connector” only when working with “hoisting equipment. ”

The connector exception does not apply.

37
On December 13, 2016,
one month before the inspection that is the subject of this citation,
CRM conducted a work site safety inspection of the MPS jobsite located at 141 Needham Street. The
MPS f oreman
was
Jose dos Santos
Pais . The report specifically includes the observation of the
CRM inspector that “this crew needs an update in steel erection standards.” (Tr. 191-93, 197-98, 312-13; Ex. R-20(b)). MPS employs approximately eight employees. (Tr. 114). Including Foreman
Servizio
there were eight employees working on the Upper Baby worksite. (Tr. 319). It is likely MPS employees on the Needham Street crew also worked on the Upper Baby crew. CRM did not provide refresher training regarding fall protection, ladder safety, and connecting hazards to MPS employees, including Foreman
Servizio , until February 6, 2017. (Ex. R-10(a), p. 1).

38
The Secretary contends that the record “strongly suggests” that when employees were disciplined for safety violations, there was no practical follow through by management to ensure information regarding safety derelictions was disseminated between foremen. (Sec’y Br. 17).

39
Section 5(a)(1)
states “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
29 U.S.C. § 65 4(a)(1).

40
At the hearing and in post hearing briefing the Secretary did not contend a feasible means of abatement includes use of a boom lift. (Tr. 46-51; Sec’y Br. 5-6).

41
ANSI/SIA A92.6-2006, Section 8.10
Operator warnings and instruction.
(9)
Personnel footing .

Personnel shall maintain firm footing on the platform floor while working thereon. Climbing by occupants on the
midrail
or
toprail
of the aerial platform is prohibited. The use of planks, ladders, or any other devices on the platform for achieving additional height or reach is prohibited.

(Tr. 45-46; Ex. C-3).

42
The Skyjack Operating Manual includes Safety Precautions that entry and exit from the aerial platform should only be done from the ground when the aerial platform is in the fully retracted position. The Manual states:

! Warning.

Entering and Exiting the aerial platform should only be done using the
3 point
contact system.

· Use only equipped access openings and ladders.

· Enter and exit only when the elevating aerial platform is in the fully retracted position.

· Do Use Three Point Contact
To
Enter And Exit The Platform . Enter and exit the platform from the ground only. Face the machine when entering or exiting the platform.

(Ex. C-4, p. 3, manual p. 16).

43
Regarding citation 1, item 1, the general duty clause violation , Respondent contends that it is the Secretary’s burden to prove Respondent’s safety program was inadequate. (Resp. Br. 22, 27-29, 38-39; Resp. Reply Br. 2, 4).

44
The Secretary does not dispute that Respondent had safety rules that were communicated to Respondent’s employees. (Sec’y Br. 15 n.1).